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Period Of 2 Years Between Order Of Guardianship And Petition For Adoption Can Be Waived Off: Bombay HC [Read Judgment]

Asserting its role as loco parentis, the Bombay High Court has held that the period of two years mandated under the reported Manuel D’Souza decision of Justice FI Rebello of the Bombay High Court in 1999 (as he then was), was an invariable and inflexible rule having no statutory backing.

Justice GS Patel held the same while hearing an adoption petition filed by the adoptive parents of a 7-year-old boy who was placed under the custody of his adoptive mother Devyani by his birth mother. Devyani then married Mayur (adoptive father) in October 2016.

The couple then filed a guardianship petition for the minor who was six and a half years old at the time. The order of guardianship was passed on January 17, 2018. The adoption petition was then filed.

The court noted that the couple had given an undertaking to deposit Rs.1 lakh in the name of the minor and also submitted a proof investment for the same. The court also acknowledged the adoption home study report dated April 13, 2017 by one Clipsy Banji which recommended the adoption and said the adoptive parents have good families, sound values and that their respective families have supported their decision with much keenness and enthusiasm. There is also an updated and more recent home visit report of February 8, 2018 which is equally positive, the court said.

Justice Patel analysed the reported judgment in Manuel D’souza, and said although the said judgment is an elaborate discussion on various aspects of human rights, the position of parents, and jurisdictional issues, the two-year requirement does not seem reasonable. He said:

“I am unable to find any specific reasoning why the period should be two years and neither more nor less. I can only presume, and I think it is reasonable to so presume, that the two-year period between the guardianship order and an adoption petition was thought necessary so that the Court could, in a given case, correct course and make perhaps a different order if it was found, for instance, that an adoption was inappropriate. As a matter of fact, I know of no case where an adoption has actually been refused after a guardianship order.”

The court highlighted the critical importance of a proof of identity for every living person today. He said how every parent today is expected to have documentation for a multitude of purposes in order to establish their child’s birth, identity and parentage.

The court further noted:

“In matters of education, things have reached an absurd and even impossible pass where a child has to be registered for admission almost at birth and certainly well before the child is able to speak or walk. So competitive is the race for admission and so difficult is the process that the child’s entire educational future is often imperilled merely for want of early registration. Government benefits, both financial and social, are equally crucial. Perhaps two or more decades ago these considerations of digital ids, early admissions and the pressure and competition to gain admission had not yet become as severe or pronounced as they are today.”

Thus, the court decided to waive off the two-year period mandated the Manuel D’Souza decision in the interest of the minor and finally said:

“As a matter of law, I would therefore hold that the two-year period specified in paragraph 35 of the Manuel D’Souza judgment is not one that is inflexible but can always be waived if a Court finds that to do so is in the interest of the minor and if sufficient cause is made out. The hands of a Court of equity can never be tied by too rigid or too doctrinaire an approach, particularly when a Court has to deal with children. The hands of a Court of equity can never be tied by too rigid or too doctrinaire an approach, particularly when a Court has to deal with children.”

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