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Jeshy C.O. vs Union Of India on 17 January, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY

THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

THURSDAY ,THE 17TH DAY OF JANUARY 2019 / 27TH POUSHA, 1940

WA.No. 30 of 2019

AGAINST THE JUDGMENT IN WP(C) 31780/2016 of HIGH COURT OF KERALA DATED 5.12.2018

APPELLANT/PETITIONER:

JESHY C.O., AGED 50 YEARS
W/O.ANTONY FLEMY MATHEW, PALAKKAL HOUSE, THEKKAN MALIPPURAM,
AZHEEKKAL P.O., COCHIN-682 508.

BY ADV. SRI.EBIN MATHEW
SRI. DINESH R. SHENOY

RESPONDENTS/RESPONDENTS:

1 UNION OF INDIA,
REPRESENTED BY THE SECRETARY, MINISTRY OF LAW AND JUSTICE,
CABINET SECRETARIAT, RAISINA HILL, NEW DELHI-110 001.

2 THE SECRETARY, MINISTRY OF CHILD AND WOMEN DEVELOPEMENT,
GOVERNMENT OF INDIA, SASTHRIBHAVAN, DR.RAJENDRA PRASAD ROAD,
NEW DELHI-110 001.

3 THE CENTRAL ADOPTION RESOURCE AUTHORITY,
REPRESENTED BY THE MEMBER SECRETARY, WEST BLOCK 8,
WING-2, 2ND FLOOR, RK PURAM, NEW DELHI-110 066.

4 VALSALYAM SHISHU BHAVAN,
SISTERS OF NASARETH, ROCKWEL ROAD,
HMT COLONY P.O., KALAMASSERY-683 504.

SRI . B. RAMACHANDRAN CGC FOR R1 R2,
SRI. C.S DIAS FOR R3 R4.

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.01.2019, THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
WA.No. 30 of 2019
: 2 :

JUDGMENT

Hrishikesh Roy, C.J.

Heard Sri.Dinesh R.Shenoy, the learned counsel appearing for the

appellant/petitioner. The learned Central Government Counsel Sri.B.Ramachandran

appears for the respondents 1 and 2. The learned counsel Sri.C.S.Dias appears for the

respondents 3 and 4 in this proceeding.

2. The appellant is the writ petitioner and he challenges the judgment dated

5.12.2018 in the W.P.(C)31780/2016. In that case, the petitioner challenged the

guidelines governing adoption and more particularly, the maximum age restriction for

the prospective adoptive parents (couple), prescribed under clause 5(4) of the Adoption

Regulations, 2017, hereinafter referred to as ‘the Adoption Regulation’.

3. The writ petitioner, who is a non hindu aged about 50 years when the writ

petition was filed, contended that the Regulation 5(4) discriminates against her right to

adopt inasmuch as, Hindu parents are permitted to adopt in terms of the provisions of

the Hindu Adoption and Maintenance Act, 1956 hereinafter referred to as ‘the Hindu

Adoption Act’. No such restrictive clause is imposed on a hindu person whereas a non

hindu is disabled from adopting a child of less than four years of age, if the composite

age of the adoptive parents is greater than what is prescribed under the Regulation 5(4)

of the Adoption Regulations, 2017.

WA.No. 30 of 2019
: 3 :

4. In the context of the challenge on the ground of discrimination, the learned

Judge was of the view that the Juvenile Justice (Care and Protection of Children) Act,

2015, hereinafter referred to as ‘the JJ Act, 2015’ , itself carves out an exception in

respect of hindus and the non hindus are discriminated against. In the matter of

adoption, the respective clause in the guideline issued by the Central Adoption Resource

Authority hereinafter referred to as ‘the CARA’ are applicable, only to non hindus. The

court in that perspective observed that the Hindu Adoption Act governs only voluntary

adoption by known parents with willingness on both sides. However, when it comes to

adoption of child in need of care and protection under the JJ Act, 2015, the provisions of

this Act and the guidelines made thereunder would prevail over any other provision of

personal law on the subject. Accordingly, it was concluded that the challenge raised on

the ground of discrimination have no application whatsoever, since what has been laid

in the other enactment is, adoption of abandoned or surrendered children, who are

legally available for adoption.

5. Insofar as the challenge to the Regulation 5(4) of the Adoption Regulation,

2017, the court noted that the JJ Act itself recognise the role of CARA, under sub

clause(s) 3, 7, 9 and 14 of the definition Section 2. Moreover, statutory recognition to

CARA is given under Section 68 of the JJ Act, 2015 . Accordingly, it was observed that

since the Regulations are framed by the statutorily recognised Authority, there can be no

basis for intervention by the court in the matter of fixing the maximum age or the

composite age of the prospective adoptive parents.

WA.No. 30 of 2019
: 4 :

6. In his turn, the learned counsel Sri.C.S.Dias would bring to the notice of the

court the Guidelines for In-Country Adoption, 2004 and the subsequent one i.e.,

Guidelines governing the Adoption of Children, 2011 framed by CARA to point out that

the competent Authority under the statutory power conferred by the JJ Act, 2015, had

undertaken detailed studies and thereafter formulated the eligibility criteria for

prospective adoptive parents. On this basis, it is argued that the court should not

substitute its views for that of the recognised statutory Authority in the matter of age

eligibility for the prospective parents, who are hoping to adopt a child.

7. It can be seen from the recent judgment in Sampurna Behura v. Union of India

and Others (2018) 4 SCC 433 that the provisions of the JJ Act, 2015 has to be applied

with all its rigour overriding other statutes. Moreover, since the role of CARA is

recognised in the welfare of a child and the concern here is towards the child to be

adopted, it would be improper for the court to substitute its own view for the view of

the experts, insofar as the age eligibility criteria of the prospective parents is concerned.

The court according to us should be slow in entering into such domain, where expertise

of another kind would be needed.

8. The learned Judge in the impugned judgment had given the liberty to the

petitioner to approach the CARA, seeking appropriate amendment of the Guidelines for

adoption and we are of the view that would be the best option for the aggrieved party.

Having regard to the discussion made above, the impugned judgment dated 5.12.2018

in W.P.(C)No.31780 of 2016 according to our assessment, should remain undisturbed.
WA.No. 30 of 2019
: 5 :

However, bearing in mind the liberty granted by the learned Judge, in the event the

petitioner approaches CARA for appropriate amendment in the Guidelines, or raise their

grievance relating to the age criteria and also for relaxation of the individual difficulty, a

decision on merit on such representation should be given by the Authority without any

delay and preferably within three months of receipt of representation. It is ordered

accordingly.

9. With the above order, the Writ Appeal stands disposed of.

SD/-

HRISHIKESH ROY
CHIEF JUSTICE

SD/-

K.ABRAHAM MATHEW
JUDGE
jes

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