Kerala HC Dismisses Challenge Against Adoption Regulations, 2017, Stipulating Upper Age Limit For Prospective Adoptive Parent(s)

“Once it is admitted that the child is either a child in need of care and protection and that the adoption is liable to be regulated in terms of the Act, 2015, then the petitioners' right to adopt is regulated by the Regulations framed under the said Act and the rights of the prospective parents has to immediately give way to the best interest of the child.”

The High Court of Kerala has dismissed challenge against eligibility criteria for prospective adoptive parents as contained in Regulation 5 of the Adoption Regulations, 2017, with regard to the maximum composite age of prospective adoptive parents for the purpose of adoption of child up to four years of age.

The regulations stipulate that when the age of the child is four or less, then the maximum composite age of prospective adoptive parents (couple) is 90 years. Maximum age of single prospective adoptive parent in such a case is 45 years.

Justice Anu Sivaraman was considering two writ petitions, one filed by a non-Hindu single prospective adoptive parent aged 50 and the other filed by a Hindu couple aged 58 and 63. The former had challenged the Adoption Regulations on the ground that it discriminates against his right to adopt in so far as Hindu parents are permitted to adopt a child in terms of the provisions of the Hindu Adoption and Maintenance Act, 1956. The Hindu couple challenged the said prescription of upper age limit on the ground that it is unsupported by any study or any discernible reason whatsoever. They contended that being physically fit and economically competent, they are entitled to adopt a child of the age of their choice. It was also contended that the Hindu Adoption and Maintenance Act, 1956 permits such adoption by Hindus and the guidelines in so far as it restricts the right of Hindus to adopt is violative of the provisions of the Act apart from being ultra vires the enabling Statute as well.

The court said that the argument of religious discrimination taken in one of the writ petition is a misapprehension. “The Act, 1956 governs only voluntary adoptions by known parents to known and specified adoptive parents with full willingness on both sides. This apparently was the known form of adoption on which both these writ petitions are based. However, when it comes to the adoption of a child in need of care and protection or a juvenile in conflict with law or an abandoned child in terms of the Act, 2015, the provisions of the said Act and the guidelines made there-under prevail over any provision of any personal law on the subject. Therefore, a child in need of care and protection or an abandoned child in terms of the Act, 2015 can be offered or taken in adoption only in terms of the guidelines prescribed under the Act, 2015,” it said.

As regards the other writ petition filed by Hindu couple, the court said: “In a matter of adoption, what is to be looked into is the welfare of the child and where it is stated that the maximum age is prescribed keeping in mind the probability of the prospective adoptive parents surviving the formative years of the child, this Court cannot, in exercise of its powers of judicial review, say that such a guideline is violative of the right of the prospective adoptive parents or that it is discriminatory. It is not for this Court to consider the reasons behind the fixing of a particular age or to substitute its own wisdom for that of the executive by fixing criteria for adoption at variance with those provided in the impugned guidelines.”

The court said since Section 57 of the Juvenile Justice (Care and Protection of Children) Act, 2015, specifically states that eligibility of prospective adoptive parents shall have the criteria specified in the Adoption Regulations framed by the authority, the argument on statutory ultra vires must immediately fail.

The court further observed: “The question whether the right to adopt is an integral part of the religion of the petitioners, according to me, is of no consequence whatsoever in a scenario where the child who is sought to be adopted is a surrendered or abandoned child who is free for adoption and is therefore governed by the provisions of the Act, 2015. Once it is admitted that the child is either a child in need of care and protection and that the adoption is liable to be regulated in terms of the Act, 2015, then the petitioners' right to adopt is regulated by the Regulations framed under the said Act and the rights of the prospective parents has to immediately give way to the best interest of the child.”

The court also said that, in case they have a contention that the guidelines issued by the CARA are not supported by scientific studies, it is for them to approach the CARA seeking appropriate steps in the matter.