Held: Despite
their personal law barring them, Muslims have now the right to adopt a child as
the Supreme Court in a landmark judgment said till the country attains Uniform
Civil Code as provided in Article 44 of the Constitution, the laws of land has
to get priority over personal law.
The Supreme Court bench
said the right to adoption is conferred by a law and functioning of this cannot
be negated by a personal law order. The apex court said the time is not
suitable to declare the right to adopt a fundamental right, even though it said
all individuals have a legal right to adopt a child. The apex court said
Muslims could adopt a child under the juvenile justice law, as its enforcement
could not be obstructed by the Muslim personal law.
REPORTABLE
IN
THE SUPREME COURT OF INDIA
CIVIL
ORIGINAL JURISDICTION
WRIT
PETITION (CIVIL) NO. 470 OF 2005
SHABNAM HASHMI ...
PETITIONER(S)
VERSUS
UNION OF INDIA
& ORS. ... RESPONDENT (S)
J U D G M E N T: RANJAN
GOGOI, J.
1.
Recognition of
the right to adopt and to be adopted as a fundamental right under Part-III of
the Constitution is the vision scripted by the public spirited individual who
has moved this Court under Article 32 of the Constitution. There is an
alternative prayer requesting the Court to lay down optional guidelines
enabling adoption of children by persons irrespective of religion, caste, creed
etc. and further for a direction to the respondent Union of India to enact an optional
law the prime focus of which is the child with considerations like religion
etc. taking a hind seat.
2.
The aforesaid
alternative prayer made in the writ petition appears to have been substantially
fructified by the march that has taken place in this sphere of law, gently nudged
by the judicial verdict in Lakshmi Kant Pandey Vs. Union of India(1984)
2 SCC 244 and the supplemental, if not consequential, legislative innovations
in the shape of the Juvenile Justice (Care And Protection of Children) Act,
2000 as amended in 2006 (hereinafter for short ‘the JJ Act, 2000) as also The Juvenile
Justice (Care and Protection of Children) Rules promulgated in the year 2007
(hereinafter for short ‘the JJ Rules, 2007’).
3.
The alternative
prayer made in the writ petition may be conveniently dealt with at the outset.
The decision of this Court in Lakshmi
Kant Pandey (supra) is a high watermark in the development of the law relating
to adoption. Dealing with inter-country adoptions, elaborate guidelines had
been laid by this Court to protect and further the interest of the child. A
regulatory body, i.e.,Central Adoption Resource Agency (for short ‘CARA’) was recommended
for creation and accordingly set up by the Government of India in the year
1989. Since then, the said body has been playing a pivotal role, laying down
norms both substantive and procedural, in the matter of inter as well as in
country adoptions. The said norms have received statutory recognition on being
notified by the Central Govt. under Rule 33 (2) of the Juvenile Justice (Care
and Protection of Children) Rules, 2007 and are today in force throughout the
country, having also been adopted and notified by several states under the
Rules framed by the states in exercise of the Rule making power under Section
68 of the JJ Act, 2000.
4.
A brief outline
of the statutory developments in the concerned sphere may now be sketched.
In stark contrast to the provisions of
the JJ Act, 2000 in force as on date, the Juvenile Justice Act, 1986
(hereinafter for short ‘the JJ Act, 1986’) dealt with only “neglected” and “delinquent
juveniles”. While the provisions of the 1986 Act dealing with delinquent
juveniles are not relevant for the present, all that was contemplated for a
‘neglected juvenile’ is custody in a juvenile home or an order placing such a juvenile
under the care of a parent, guardian or other person who was willing to ensure
his good behaviour during the period of observation as fixed by the Juvenile
Welfare Board.The JJ Act, 2000 introduced a separate chapter i.e. Chapter IV under
the head ‘Rehabilitation and Social Reintegration’
for a child in need of care and protection. Such rehabilitation and social
reintegration was to be carried out alternatively by adoption or foster care or
sponsorship or by sending the child to an after-care organization. Section 41
contemplates adoption though it makes it clear that the primary responsibility
for providing care and protection to a child is his immediate family. Sections
42, 43 and 44 of the JJ Act, 2000 deals with alternative methods of
rehabilitation namely, foster care, sponsorship and being looked after by an
after-care organisation.
5.
The JJ Act,
2000, however did not define ‘adoption’ and it is only by the amendment of 2006
that the meaning thereof came to be expressed in the following terms:
“2(aa)-“adoption”
means the process through which the adopted child is permanently separated from
his biological parents and become the legitimate child of his adoptive parents
with all the rights, privileges and responsibilities that are attached to the
relationship”
6.
In fact, Section
41 of the JJ Act, 2000 was substantially amended in 2006 and for the first time
the responsibility of giving in adoption was cast upon the Court which was defined
by the JJ Rules, 2007 to mean a civil court having jurisdiction in matters of
adoption and guardianship including the court of the district judge, family
courts and the city civil court. [Rule 33 (5)] Substantial changes were made in
the other sub-sections of Section 41 of the JJ Act, 2000. The CARA, as an
institution, received statutory recognition and so did the guidelines framed by
it and notified by the Central Govt. [Section 41(3)].
7.
In exercise of
the rule making power vested by Section 68 of the JJ Act, 2000, the JJ Rules,
2007 have been enacted. Chapter V of the said Rules deal with rehabilitation and social reintegration.
Under Rule 33(2) guidelines issued by the CARA, as notified by the Central
Government under Section 41 (3) of the JJ Act, 2000, were made applicable to
all matters relating to adoption. It appears that pursuant to the JJ Rules,
2007 and in exercise of the rule making power vested by the JJ Act, 2000 most
of the States have followed suit and adopted the guidelines issued by CARA
making the same applicable in the matter of adoption within the territorial
boundaries of the concerned State.
Rules 33(3) and 33(4) of the JJ Rules, 2007 contain elaborate provisions
regulating pre-adoption procedure i.e. for declaring a child legally free for
adoption. The Rules also provide for foster care (including pre-adoption foster
care) of such children who cannot be placed in adoption & lays down criteria
for selection of families for foster care, for sponsorship and for being looked
after by an aftercare organisation. Whatever the Rules do not provide for are supplemented
by the CARA guidelines of 2011 which additionally provide measures for post
adoption follow up and maintenance of data of adoptions.
8.
It will now be
relevant to take note of the stand of the Union of India. Way back on 15th May,
2006 the Union in its counter affidavit had informed the Court that prospective
parents, irrespective of their religious background, are free to access the
provisions of the Act for adoption of children after following the procedure
prescribed. The progress on the ground as laid before the Court by the Union of
India through the Ministry of Women and Child Development (respondent No. 3
herein) may also be noticed at this stage. The Union in its written submission
before the Court has highlighted that at the end of the calendar year 2013
Child Welfare Committees (CWC) are presently functioning in a total of 619
districts of the country whereas State Adoption Resource Agencies (SARA) has
been set up in 26 States/Union Territories; Adoption Recommendation Committees
(ARCs) have been constituted in 18 States/Union Territories whereas the number
of recognized adoption organisations in the country are 395. According to the
Union the number of reported adoptions in the country from January, 2013 to September,
2013 was 19884 out of which 1712 cases are of inter-country adoption. The third
respondent has also drawn the attention of the Court that notwithstanding the
time schedule specified in the guidelines of 2011 as well as in the JJ Rules,
2007 there is undue delay in processing of adoption cases at the level of Child
Welfare Committees (CWS), the Adoption Recommendation Committees (ARCs) as well
as the concerned courts.
9.
In the light of
the aforesaid developments, the petitioner in his written submission before the
Court, admits that the JJ Act, 2000 is a secular law enabling any person, irrespective
of the religion he professes, to take a child in adoption. It is akin to the
Special Marriage Act 1954, which enables any person living in India to get married
under that Act, irrespective of the religion he follows. JJA 2000 with regard
to adoption is an enabling optional gender-just law, it is submitted. In the
written arguments filed on behalf of the petitioner it has also been stated
that in view of the enactment of the JJ Act, 2000 and the Amending Act of 2006 the
prayers made in the writ petition with regard to guidelines to enable and
facilitate adoption of children by persons irrespective of religion, caste,
creed etc. stands satisfactorily answered and that a direction be made by this Court
to all States, Union Territories and authorities under the JJ Act, 2000 to
implement the provisions of Section 41 of the Act and to follow the CARA
guidelines as notified.
10.
The All India
Muslim Personal Law Board (hereinafter referred to as ‘the Board’) which has
been allowed to intervene in the present proceeding has filed a detailed written
submission wherein it has been contended that under the JJ Act, 2000 adoption
is only one of the methods contemplated for taking care of a child in need of
care and protection and that Section 41 explicitly recognizes foster care,
sponsorship and being look after by after-care organizations as other/
alternative modes of taking care of an abandoned/surrendered child. It is
contended that Islamic Law does not recognize an adopted child to be at par
with a biological child. According to the Board, Islamic Law professes what is
known as the “Kafala” system under which the child is placed under a ‘Kafil’
who provides for the well being of the child including financial support and
thus is legally allowed to take care of the child though the child remains the
true descendant of his biological parents and not that of the “adoptive”
parents. The Board contends that the “Kafala” system which is recognized by the
United Nation’s Convention of the Rights of the Child under Article 20(3) is one
of the alternate system of child care contemplated by the JJ Act, 2000 and
therefore a direction should be issued to all the Child Welfare Committees to
keep in mind and follow the principles of Islamic Law before declaring a muslim
child available for adoption under Section 41(5) of the JJ Act, 2000.
11.
The JJ Act,
2000, as amended, is an enabling legislation that gives a prospective parent
the option of adopting an eligible child by following the procedure prescribed
by the Act, Rules and the CARA guidelines, as notified under the Act. The Act
does not mandate any compulsive action by any prospective parent leaving such
person with the liberty of accessing the provisions of the Act, if he so
desires. Such a person is always free to adopt or choose not to do so and, instead,
follow what he comprehends to be the dictates of the personal law applicable to
him. To us, the Act is a small step in reaching the goal enshrined by Article
44 of the Constitution. Personal beliefs and faiths, though must be honoured,
cannot dictate the operation of the provisions of an enabling statute. At the
cost of repetition we would like to say that an optional legislation that does
not contain an unavoidable imperative cannot be stultified by principles of personal
law which, however, would always continue to govern any person who chooses to
so submit himself until such time that the vision of a uniform Civil Code is
achieved. The same can only happen by the collective decision of the generation(s)
to come to sink conflicting faiths and beliefs that are still active as on
date.
12.
The writ petitioner has also prayed for a declaration
that the right of a child to be adopted and that of the prospective parents to
adopt be declared a fundamental right under Article 21 of the Constitution.
Reliance is placed in this regard on the views of the Bombay and Kerala High
Courts in In re: Manuel Theodore D’souza2 and Philips Alfred (2000) 3 BomCR 244 and Malvin Vs. Y.J.Gonsalvis &
Ors. AIR 1999 Kerala 187 respectively. The Board objects to such a
declaration on the grounds already been noticed, namely, that Muslim Personal
Law does not recognize adoption though it does not prohibit a childless couple
from taking care and protecting a child with material and emotional support.
13.
Even though no
serious or substantial debate has been made on behalf of the petitioner on the
issue, abundant literature including the holy scripts have been placed before the
Court by the Board in support of its contention, noted above. Though enriched
by the lengthy discourse laid before us, we do not think it necessary to go
into any of the issues raised. The Fundamental Rights embodied in Part-III of
the Constitution constitute the basic human rights which inhere in every person
and such other rights which are fundamental to the dignity and well being of
citizens. While it is correct that the dimensions and perspectives of the
meaning and content of fundamental rights are in a process of constant evolution
as is bound to happen in a vibrant democracy where the mind is always free,
elevation of the right to adopt or to be adopted to the status of a Fundamental
Right, in our considered view, will have to await a dissipation of the conflicting
thought processes in this sphere of practices and belief prevailing in the
country. The legislature which is better equipped to comprehend the mental
preparedness of the entire citizenry to think unitedly on the issue has expressed
its view, for the present, by the enactment of the JJ Act 2000 and the same
must receive due respect. Conflicting view points prevailing between different communities,
as on date, on the subject makes the vision contemplated by Article 44 of the
Constitution i.e. a Uniform Civil Code a goal yet to be fully reached and the
Court is reminded of the anxiety expressed by it earlier with regard to the
necessity to maintain restraint. All these impel us to take the view that the
present is not an appropriate time and stage where the right to adopt and the
right to be adopted can be raised to the status of a fundamental right and/or
to understand such a right to be encompassed by Article 21 of the Constitution.
In this regard we would like to observe that the decisions of the Bombay High
Court in Manuel Theodore D’souza (supra) and the Kerala High Court in Philips
Alfred Malvin (supra) can be best understood to have been rendered in
the facts of the respective cases. While the larger question i.e. qua
Fundamental Rights was not directly in issue before the Kerala High Court, in Manuel
Theodore D’souza (supra) the right to adopt was consistent with the
canonical law applicable to the parties who were Christians by faith. We hardly
need to reiterate the well settled principles of judicial restraint, the
fundamental of which requires the Court not to deal with issues of Constitutional
interpretation unless such an exercise is but unavoidable.
14.
Consequently,
the writ petition is disposed of in terms of
our
directions and observations made above.
...…………………………CJI.
[P.
SATHASIVAM]
.........………………………J.
[RANJAN
GOGOI]
…..........……………………J.
[SHIVA
KIRTI SINGH]
NEW
DELHI,
FEBRUARY
19, 2014.
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