Interplay of Adoption Laws: Darshana Gupta v. None and Another

    Adoption is a legal process by which children deprived of their biological families may be integrated into new homes and be given a new family so as to ensure a better quality of life for them. The Hindu Adoptions and Maintenance Act, 1956 (HAMA) was enacted to enable Hindus to adopt but restricted other faiths from such acts. The Guardians and Wards Act (GAWA), 1890 was developed to include persons of Christianity, Islam and Parsi beliefs. However, this Act was limited to Guardianship and did not permit complete adoption. Furthermore, the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) was enacted to provide adoption for abandoned, orphaned or destitute children.

    On a comparative analysis it is seen that transparency, audibility and accountability under the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) has resulted in a majority opting for the less-stringent adoption pathway under the Hindu Adoptions and Maintenance Act, 1956(HAMA) which has resulted in misuse by touts and child trafficking. In the case of Darshana Gupta v None and Another[1]  the Court was seen to applaud the efforts of the appellant who had been maintaining the minor girl child for several months and attempting to rehabilitate a minor girl child into her family by giving care and protection through adoption. This case is representative of a laudable interpretation given by the Court instead of a pedantic one to further the appellants objective of raising the child in a healthy environment which was congenial for her rehabilitation.

    Table of Contents

    Facts

    The facts of the case are as follows – The appellant, Darshana Gupta served as a Joint Director in the Pension Department at Udaipur. She had approached the District Court invoking Sections 9(4) and (5) of the HAMA and Section 41 of the JJ Act in an endeavour to adopt a minor girl child, Priti. Consequently, she also submitted documents relating to application for adoption, custody, guardianship, registration of child and the proforma respondent finding her suitable and entitled for adoption. The minor, Priti, who was presently in the custody and guardianship of Darshana Gupta, had also acted as witness to ascertain the appellant’s intention of adoption. The present appeal in the Rajasthan High Court had been preferred as the Jaipur District Court had quashed the appellant’s application for adoption.

    The issues which were to be addressed in this case were – Whether the prohibitions under Section 11 (i) and (ii) can act as an impediment to a Hindu who wanted to adopt a child of the same gender as of his/her biological child under the JJ Act? Whether a pragmatic approach was to be taken for interpreting the HAMA instead of an idealistic and restrictive one? Whether the provisions of a general statute such as HAMA would yield to a special statute such as the JJ Act?

    The two major laws relating to adoption which were applicable in this case were- Hindu Adoptions and Maintenance Act, 1956: S.9(4), S.9(5), S.11 and the Juvenile Justice (Care and Protection of Children) Act, 2000- S. 41(6)

    https://legalreadings.com/role-of-public-prosecutors-vis-a-viz-low-conviction-rate/

    Analysis

    In the case of Re: Adoption of Payal @ Sharinee Vinay Pathak and his wife Sonika Sahay @ Pathak[2], Court laid down that when a child to be adopted falls under Section 41(2) and is surrendered, abandoned or orphaned, or under Section 2(d) of the JJ Act and is in need of protection and care, the prohibitions of Section 11(i) and (ii) of the HAMA would not apply. In furtherance of the legislative policy of rehabilitation and reintegration of such children into society, Section 41(6) of the JJ Act provides that persons may adopt may adopt a child of the same sex notwithstanding their marital status or the number of biological daughters or sons they had. Furthermore, if provisions of JJ Act were inconsistent with that of HAMA, the former would prevail as it was enacted subsequently. The same principles were reaffirmed in the case of Rajan Mittal and Another v Nari Niketan Trust (Regd.) Nakodar Road, Jalandhar, wherein the Court opined that the HAMA and JJ Act must be harmoniously construed. In the case of The Secretary, Subhadra Mahatab Seva Sadan of Kolathia and Another v State of Orissa[3]the Court had held that the District Court had failed to see that the petitioners had sought an order for adoption under the JJ Act instead of the HAMA.  Additionally, noting the case of Lakshmi Kant Pandey v Union of India[4], it also opined that action should be taken after examining whether a decree in favour of adoption would be in the best interests of the child to be adopted.

    In this case, the Court was observed to take note of the cases cited by the counsel along with the submissions of the Additional Advocate General who mentioned Rajasthan Children Act, 1970 and Articles 21, 39, 45,47 and 51A of the Constitution under which the welfare of children is enshrined. Condemning the District Court’s decision which had failed to examine the issue in the light of the JJ Act, the Rajasthan High Court was observed to resolve the apparent conflict between the two Acts stating that embargo under Section 11 of the HAMA was done away with by the JJ Act. Furthermore, it also stated that the JJ Act would prevail upon the HAMA owing to the principle of “generalia specilibus non derogant” which provided that special provisions prevailed over general ones. However, in the present case, the two Acts were not seen to conflate as the JJ Act had impliedly amended the HAMA and would only apply in cases where the children in question were destitute or abandoned, and the restrictions of HAMA would continue to be applicable in other cases. On further analysis it is observed that the Court stressed on harmonious construction of the two Acts wherein the HAMA laid down provisions for adoption by Hindus and the JJ Act specially provided for children in need of care and protection and in conflict with law.

    The HAMA and JJ Act are in shambles today and hence in cases where children are genuinely adopted for their welfare, the Courts must facilitate such adoptions instead of thwarting such efforts by erroneous judgements.

    Conclusion

    The current pandemic has revealed a present threat of illegal adoptions and child trafficking.[5] In the country today, it is observed that children are either being adopted under the HAMA more often instead of the system in place under the JJ Act, being adopted illegally or falling prey to trafficking. The only requirement in law being the consent of two Hindu parents and a mere agreement, it has even become possible for children to be trafficked in the guise of adoption under the HAMA. Moreover, there is no mandate for registration of adoption[6] and lesser restraints. The absence of requisites under this Act such as home checks, documentation of parents relinquishing or taking a child in adoption, such practices have become rampant. On the other hand, the JJ Act also has its own drawbacks. It lays down a rather detailed procedure, guidelines as provided by CARA, is fraught with paperwork and only applicable to those children who are labelled as destitute by a Child Welfare Committee. Furthermore, this Act does not provide for certainty of maintenance as under the HAMA and too many checks and balances are found to cause hindrances to adoption. [7]

    Adoption agencies are also seen to avoid registration under the JJ Act which now represents an adoption process which is crumbling, with CARA having very few children who are registered and prospective parents who are on waiting lists. Several reforms such as a national adoption register are the need of the hour to reinforce the adoption programme in the country and promote adoption. The HAMA needs improvements such as transparency, removing bars on same-sex adoption, eligibility and qualification of prospective parents and examinations, due diligence conducted before adoption and follow-ups after adoption to ensure welfare of children. The JJ Act needs to relax the bureaucratic nature in order to facilitate and promote adoption, reduce the waiting period, and make childcare institutions mandatorily register under this Act.

    The HAMA and JJ Act are in shambles today and hence in cases where children are genuinely adopted for their welfare, the Courts must facilitate such adoptions instead of thwarting such efforts by erroneous judgements.

    REFERENCES

    1. AIR 2015 Raj 105
    2. 2010(1) BomCR434
    3.  2013 AIR (Ori) 110
    4. 1984 AIR 469
    5. Rohit K Singh and Oliver Frederick, “Child trafficking suspected behind pleas for adoption of Covid orphans”, Hindustan Times, May.13, 2021
    6. Editorial, “Registration of adoption under Hindu law to be made mandatory”, The Economic Times, Nov 22, 2017
    7. Sanya Dhingra, “Too many checks and balances could reduce adoption rates”, The Print, Oct.28, 2017

    BY SHARANYA BHATTACHARYA| SYMBIOSIS LAW SCHOOL, PUNE

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