Case – In Re: Adoption of Payal at Sharinee Vinay Pathak and his wife Sonika Sahay Pathak, 2010
Fact – The petitioners already had a daughter; they obtained guardianship rights in respect of a surrendered female baby about five months old, after complying with all the requirements. The child remained with them for four years and thereafter, the petitioners filed an application to legally adopt that child. The court referred to various provisions in the Constitution, the Hindu Adoptions and Maintenance Act, 1956, the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Convention on the Rights of Child, which was ratified by India in 1992, and analysed them in great detail.
Issue – Whether a Hindu couple governed by the Hindu Adoptions and Maintenance Act, 1956, with a child of their own can adopt a child of the same gender under the provisions of the Juvenile Justice Act of 2000?
Contentions and Judgement:
It observed, inter alia, that adoption is a facet of the right to life under Article 21 of the Constitution. The right to adopt… is a constitutional right guaranteed under Article 21. The right to life includes those things which make life meaningful.
- The court held that the right to life that is asserted is, on one hand the right of parents and individuals, men and women, who seek to adopt to give meaning to their lives. Equally significant in the context of Juvenile Justice (Care and Protection of Children) Act, 2000 the right to life that is specially protected is the right of children who are in need of special care and protection.
- As to the embargo that is imposed on adoption of same sex child by the Hindu Adoptions and Maintenance Act, 1956—the court held that this must give way to the statutory provisions in the Juvenile Justice (Care and Protection of Children) Act, 2000.
- If the two pieces of legislation, both of which are enacted by Parliament are harmoniously construed, there is no conflict of interpretation, the court observed; and alternatively, even if there is a conflict, it is the later Act which will prevail (the Hindu Adoptions and Maintenance Act, 1956 came in 1956 and the Juvenile Justice (Care and Protection of Children) Act, 2000.
- This is on the well-settled principle that where there are two Special Acts dealing with same subject matter, legislation which is enacted subsequently will prevail. The court also clarified that general prohibition of the earlier Act—i.e., same gender adoption—will remain in force; the latter Act (Juvenile Justice (Care and Protection of Children) Act, 2000) simply creates an exception in the case of abandoned children.
- The parents in this case who already have a daughter and have obtained guardianship of the child in question who fits the description of a child in need of care and protection under section 2(d)(v) of the Juvenile Justice (Care and Protection of Children) Act, 2000 and of surrendered child under section 41(2), is eligible for adoption. Petitioners were accordingly declared adoptive parents of Sharinee (Payal) with all rights and consequences under law.
