In re: Adoption of Payal @ Sharinee Vinay Pathak and Sonika Sahay Pathak
Hindu parents with a child of their own may adopt an orphaned, abandoned or surrendered child of the same sex under the secular Juvenile Justice Act, overriding the bar in Section 11 HAMA.
Facts
A Hindu couple with a biological daughter obtained guardianship under the Guardians and Wards Act of a surrendered female infant who had lived with them for over four years. They sought a declaration that they were the child's adoptive parents. Section 11(ii) HAMA bars a Hindu from adopting a daughter when an existing Hindu daughter is living, raising a conflict with the Juvenile Justice Act, which permits adoption of a same-sex child irrespective of the number of biological children.
Issues
- Whether a Hindu couple already having a child can adopt a child of the same gender under the Juvenile Justice Act, 2000 despite the prohibition in Section 11(i)/(ii) HAMA.
- How the Hindu Adoptions and Maintenance Act, 1956 and the secular Juvenile Justice Act, 2000 are to be harmonised where they conflict.
Arguments
The petitioners contended that the surrendered child fell within the Juvenile Justice Act's protective scheme, which permits adoption of a same-sex child irrespective of existing biological children, and that the beneficial secular Act should prevail. The competing view, addressed by the Court, was that Section 11 HAMA continued to bar the adoption because HAMA, being personal law, remained operative for Hindus.
Held
The Court allowed the petition and declared the petitioners the adoptive parents. It held the two enactments must be harmoniously construed: where a child is orphaned, abandoned or surrendered (a child in need of care and protection under the Juvenile Justice Act), the secular Act's adoption provisions — including Section 41(6) permitting adoption of a same-sex child irrespective of the number of living biological children — prevail over the embargo in Section 11(i)/(ii) HAMA, which stands lifted to that extent. Treating the Juvenile Justice Act as beneficial, remedial legislation to be construed liberally, the Court reasoned that adoption is a facet of Article 21 and that the Act's secular object of rehabilitating destitute children cuts across religious identity. Alternatively, being the later special Act on adoption of that subclass, the Juvenile Justice Act impliedly amends the conflicting provision of HAMA. On facts, the surrendered child was legally free for adoption and the adoption was manifestly in her welfare.
Ratio decidendi
For orphaned, abandoned or surrendered children, the secular Juvenile Justice Act, 2000 prevails over the same-gender adoption bar in Section 11 HAMA; the embargo under Section 11(i)/(ii) is lifted, enabling Hindu parents to adopt a same-sex child irrespective of existing biological children.
Significance
A landmark judgment opening secular adoption to all communities and removing the same-gender restriction for children covered by the Juvenile Justice Act. It is a leading authority on harmonising personal law with secular welfare legislation and on adoption as part of the right to life; its approach informed later jurisprudence and the framework of the Juvenile Justice Act, 2015.
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