Adoption Under Hindu Adoption & Maintenance Act Is Not Contrary To Juvenile Justice Act : Kerala HC [Read Judgment]

In the instant case, the biological parents (petitioners 3&4) and adoptive parents (petitioners 1&2) together filed a writ petition for Habeas Corpus to direct the child care institutions (respondents 4 to 6) to produce the child named 'Thanmayi' who is 6 months old and said to be in the illegal detention in the institution.

The biological parents of the child by registered adoption deed dated 5.8.2019 of the Malavalli Sub-Registry Office, Mandya, Karnataka placed the child in adoption to the adoptive parents. As the petitioners were all Hindus by religion, they were governed by the provisions of the HAM Act. The biological parents and adoptive parents on their free will and choice decided to give and take the child in adoption. Hence from 5.8.2019, the child was in the care and custody of the adoptive parents.

On 9.12.2019, the Child Welfare Committee (CWC) forcefully took away the child from the adoptive parents and placed the child in their custody. The institution also filed an FIR against the petitioners for an offence punishable under Section 80 of the JJ Act which deals with punishment of any person or organization offers or receives any orphan child (abandoned or surrendered) without following the provisions of the said Act.

This resulted in the filing of the petition against the FIR filed by the child care institutions and in taking away the child from the custody of the adoptive parents and illegal detention of the child.

The questions came up for consideration before the Court was whether the adoption effected the provisions of the HAM Act can be in contravention of the JJ Act and whether the child is in the unlawful detention of the respondents (child care institution).

As per Section 2(1) of the HAM Act, the said act applies to any person who is a Hindu by religion in any of its forms or developments.  

When it comes to the Juvenile Justice Act, 2015 Section 56(3) reads:

" (3) Nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act, 1956 (78 of 1956). "

The Court remarked,

"The above-extracted provisions establish that both the HAM Act and the J.J Act are central enactments occupying their respective fields. The former statute deals with adoption and maintenance among Hindus, and the latter statute is an Act to consolidate and amend the law relating to children found in conflict with law and children in need of care and protection. On a close scrutiny of the two statutes, we do not find any repugnancy between the two legislations."

The court opined that the Child Welfare Committee (CWC) filed FIR against the petitioners under Section 80 of the JJ Act without considering the statutory provisions under the two Acts. The court further noted that the biological parents gave their child in adoption to the adoptive parent after fulfilling all the provisions of the HAM Act after executing a registered adoption deed (Section 16 of the HAM Act).

The Court said,

"Therefore, once an adoption deed is executed and registered under the HAM Act, the Court shall presume that the adoption has been made in compliance with the provisions of the Act until it is disproved."

"Sec.56(3) in the J.J Act, the later enactment, with the intention to permit adoptions under the HAM Act. There may be instances where a person may qualify to adopt a child under the provisions of both the HAM Act and the J.J Act. In such an eventuality, especially where is no repugnancy between the two statutes, it would be the choice of such person to opt for the HAM Act or the J.J Act, 2015, adoption. No authority can compel such person to resort to only the J.J Act, 2015", judgment authored by Justice C S Dias observed.

The Court also said that mere allegation that the child was placed and taken in adoption in contravention of Sec. 80 of the JJ Act is not sufficient to direct the child to be placed with a child care institution and also that the said Act restores orphan, abandoned or surrendered children to their parents, adoptive parents, foster parents, guardian and fit person, respectively.

"The aim and object of the Act is to de-institutionalise children and see that they are restored to their families at the earliest, and not to place the above category of children in institutions", added the court.

The Court also referred to the observations of SC in Shabnam Hashmi v Union of India case that the JJ Act 2000 was an enabling act in respect of adoption. Even though those observations were in respect of JJ Act 2000, the High Court said that they are applicable to JJ Act 2015 as well.

Section 16 of HAM Act, which gives a presumption of legality to adoption deeds, was also referred to by the Court.

While allowing the petition, the Court held that placing of the child with child care institution amounts to illegal detention and also directed that the child to be restored to its adoptive parents. The Court also declared petitioners 1&2 to be the adoptive parents.

Case Details
Case Title: Sivarama v. The State of Kerala
Case No: WP(Crl.) No. 439 of 2019
Quorum: Justices K. Hairlal and C.S. Dias
Appearances: Advocates T.Madhu and Saradamani ( for the petitioners) Government Pleader K.B. Ramanand ( for the respondents)

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