'Adoption Regulations Discriminatory For Not Recognising Christian Personal Law', Plea In Jharkhand HC Challenges Section 56(3) JJ Act [Read Petition]

A couple, who claims to have adopted a child as per Christian personal law, has approached the Jharkhand High Court challenging Section 56(3) of the Juvenile Justice Act 2015 and certain provisions of the Adoption Regulations 2017 as arbitrary and discriminatory.

On January 11, the DB of Chief Justice Aniruddha Bose and Justice H C Mishra issued notice to Attorney General of India, observing "certain important questions have been raised over the constitutionality of Section 56(3) of the Juvenile Justice(Care and Protection of Children) Act, 2015"

Section 56(3) of JJ Act states, "Nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act 1956". This exemption is challenged as discriminatory on religious grounds by the petitioners, who are Christians.

The petitioners, a childless couple, adopted an infant, immediately after birth. The mother of the child was a minor girl, who got pregnant allegedly as a result of rape. The petitioners claimed that they got in contact with the girl through her aunt, and the infant was given to their care and custody in June 2017.

They claimed that they had baptised the child and was raising her as their own daughter. Meanwhile, the Jharkhand police started investigation of  suspected cases of baby selling, allegedly carried out by members of Missionaries of Charity at Ranchi. The petitioners also came under the scanner. Since they had not followed the procedure of adoption under the Adoption Regulations framed under the JJ Act 2015 notified in April 2017 while adopting the infant, the Child Welfare Committee took away the infant from their custody.

In that backdrop, the petitioners approached the High Court through Advocate Prem Mardi, for declaration of adoption and for custody of the child from the Child Welfare Committee. They pointed out that the Adoption Regulations 2017 do not recognise adoption by inter-personal arrangements, and only permits adoption through adoption agencies. However, adoptions done as per inter-personal arrangements in accordance with Hindu Adoption and Maintenance Act are exempted from JJ Act as per Section 56(3). This, according to the petitioners is discriminatory, as the Regulations do not recognise adoptions done as per the right claimed under Christian personal law.

The petition said :

"As per Hindu Adoption and Maintenance Act, on the basis of inter-personal arrangements between a prospective parent and the actual parent or guardian of the child, a child can be adopted. Thus, the Act enables Hindu persons to adopt a child of their preference, and also enables a parent/guardian to give a child in adoption to a person of his/her choice.Thus, Hindu persons can enter into inter-personal arrangements for adoption without having to take recourse to the procedure under the JJ Act and Adoption Regulations. However, such an allowance is not made with respect to Christians. As stated above, the Courts have already recognised that Christians have right to adopt, even in the absence of any express legislation. This amounts to illegal classification and discrimination of Christians".

It further stated that the petitioners were taking giving parental care to the child. The child had developed bonding with the petitioners over the period of stay. Hence, the child cannot be regarded as an "orphan" or an "abandoned child" as per the Act. The forcible taking away of the child by the Child Welfare Committee from the homely atmosphere and parental care provided by the petitioners is against the welfare and best interests of the child, the petition stated.

"It is well settled principle that in matters pertaining to custody of children, the paramount welfare and best interests of the child is the sole consideration. In the instant case, the child was growing up in a friendly family atmosphere, receiving parental care and love. She was growing up as a normal child. Now, the intervention of respondents as per the Act, will transplant the child from the family atmosphere and institutionalize her. This is apparently unreasonable and unjust. The actions of respondents in this regard are totally contrary to the 'General Principles for Care and Protection' enumerated in Section 3 of the JJ Act." 

The petitioners state that the Regulations should permit moving of applications by individuals before competent courts for adoption of a child of their own preference. As per the Regulations, persons desirous of adopting a child have to register with an authorized adoption agency, and will be getting a child for adoption as per seniority of registration.

"If a person proceeds by the scheme of the JJ Act and Regulations, it is not necessary that the person will be able to adopt a particular child of his/her choice. Once a child is declared as legally free for adoption as per Section 38 of the Act, the name of the child will go to a common pool of children declared legally free for adoption. Thereafter, the child will be matched with prospective parents in the order of seniority determined on the basis of uploading of application by them. The matching of the prospective parents with the child depends upon three factors. First, the seniority of prospective parents.Second, availability of child from legally free from adoption from the site of Respondent No.3 and third, outcome of Home study of the Prospective parents. Though this mechanism is fair and effective in cases of persons who are seeking to adopt a child who is an orphan or and abandoned or surrendered child without any particular preference, it is not effective and fair in addressing situations where a parent/guardian of a child wants to voluntarily give that child in adoption to a particular, identified person or a couple. There is no rationale for excluding such an option", said the petitioners.

While considering the petition for admission in the first week of October 2018, the High Court had permitted the petitioners to have the custody of the child; however directed them to produce the child before the Committee every week.

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