In Re: Adoption of Payal at Sharinee Vinay Pathak and Sonika Pathak case deals with contradicting provisions of the Hindu Adoption and Maintenance Act, 1956, and Juvenile Justice (Care and Protection) Act, 2000 on the subject of Adoption. Where Hindu Adoption and Maintenance Act, 1956restrictsadoption in circumstances where the adoptive parents already have a living child of the same gender which they want to adopt contrast to the Juvenile Justice (Care and Protection) Act, 2000 where adoption is allowed irrespective of an existing child of the same gender, religion, marital status of adoptive parents, etc.
Citation
2010 (1) Bom CR 434
Bench
Dr. D.Y Chandrachud, J
Relevant Act
Hindu Adoption and Maintenance Act, 1956 / Juvenile Justice (Care and Protection) Act, 2000
Facts of adoption of Payal at Sharinee Vinay Pathak and Sonika Pathak:
- The first and second petitioners are Hindus who were married on 29 June 2001 and gave birth to a daughter on 4 February 2003. The girl child (to be adopted) was born on 12 November 2004.
- They concealed the identities of her biological parents as they had already executed a declaration on 16 November 2004 relinquishing the girl child to the nursing home in which she was born.
- Further, the Scrutiny Officer of the Indian Council for Social Welfare e substantiated that the biological mother of the girl child has been appropriately counseled the contents of the documents and it has been made apparent that, she had two months to reclaim the child failing to which the child in question will be placed for adoption or guardianship.
- Consequently, by the order of Justice A.M Khanwilkar petitioners were appointed as guardians of the girl child. And have filed this present petition seeking a declaration as” adoptive parents”.
Ratio Decidendi:
- The Hindu Adoption and Maintenance Act, 1956 governs adoption by/to Hindu families it spells out the prerequisites of a valid adoption which are typically applied to Hinds in the ambit of family laws.
- Unlike Juvenile Justice (Care and Protection) Act, 2000 is social legislation consisting of the special provisions regarding children in conflict with the law, surrendered, abandoned, or orphaned who require rehabilitation and social integration. Adoption acts to accomplish that required rehabilitation and social integration.
- The bench by harmonious construction determined that Hindu Adoption and Maintenance Act, 1956 is of general applicability and lays down the general requirements for adoption, and Juvenile Justice (Care and Protection) Act, 2000 is special legislation concerning a special sub-class of children who conflict with the law, abandoned, surrendered or orphaned, therefore, special legislation would be an exception to the general rule stating “Hindus cannot adopt a child of the same gender but in case of abandonment, surrender, orphaned they could adopt simply because it is an exception”.
The bench also observed that even if there is a conflict between the two acts the subsequent act i.e. Juvenile Justice (Care and Protection) Act, 2000 would prevail as it is a well-settled rule that two acts dealing with the same subject, the regulation enacted subsequently would prevail.
The decision of adoption of Payal at Sharinee Vinay Pathak and Sonika Pathak:
The court concluded, as petitioners already are appointed as guardians of the girl child and they have complied with all the procedures under Juvenile Justice (Care and Protection) Act, 2000, and have fulfilled all the requirements.
Since the child is living for the past four years with the petitioners and there is substantial evidence present on record that the child is in a safe and protected environment, Court granted the petitioners the status of adoptive parents.
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