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

In a significant judgment, the High Court of Kerala observed the Juvenile Justice Act (JJ Act) 2015 will not affect the validity of an adoption carried out under the Hindu Adoption and Maintenance Act(HAM Act) 1956. Based on this, the Court held the action of the authorities under the JJ Act in taking away an infant from the care of her adoptive parents to be illegal. The authorities had contended that the adoption was illegal as it was not carried out in accordance with the JJ Act. A Division Bench comprising Justices K.Harilal and C.S Dias noted that the adoption in the case was done as per a deed registered under the HAM Act and that the parties in the case were Hindus. The bench observed that it in cases where a person qualifies for adoption under both the Acts, it would the choice of the person to opt for Hindu Adoption and Maintenance (HAM) Act 1956 or the Juvenile Justice (JJ) Act, 2015. The court added that in such cases, no authority can compel such person to resort to only the JJ Act, 2015. 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...

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

Arabhi Anandan

In a case where both the Acts apply, it would be the choice of the person to opt for either of the Act.

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