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Jeshy C.O vs Union Of India on 5 December, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940

WP(C).No. 31780 of 2016

PETITIONER/S:

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

BY ADVS.
SMT.K.K.JYOTHILAKSHMY
SRI.EBIN MATHEW

RESPONDENT/S:
1 UNION OF INDIA.
REP. BY THE SECRETARY, MINISTRY OF LAW AND JUSTICE,
CABINET SECRETARIAT, RAISINA HILL, NEW DELHI- 110 001

2 THE SECRETARY
MINISTRY OF CHILD WOMEN DEVELOPMENT, GOVT. OF
INDIA, SASTHRI BHAVAN, DR. RAJENDRA PRASAD ROAD, NEW
DELHI – 110 001

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

4 VALSALYAM SHISHU BHAVAN
SISTERS OF NZARETH ROCKWEL ROAD, HMTCOLONY P.O.
KALAMASSERY- 683 504

BY ADVS.
SRI.B.RAMACHANDRAN, CGC
SRI.C.S.DIAS
[WP(C) 31780/2016
WP(C).4702/2017 ] 2

SMT.GLORY THARAKAN
SMT.P.T.MARY
SRI.B.RAMACHANDRAN CGC
SRI.N.K.SUBRAMANIAN

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.8.2018, ALONG WITH WP(C).4702/2017, THE COURT ON 05.12.2018
DELIVERED THE FOLLOWING:
[WP(C) 31780/2016
WP(C).4702/2017 ] 3

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940

WP(C).No. 4702 of 2017

PETITIONER/S:

1 REMABAI.M.K
AGED 58 YEARS, W/O VELAYUDHAN M.K.,MAVULLA KANDIYIL,
KODUVALLY P.O,CALICUT.

2 VELAYUDHAN M.K.
AGED 63 YEARS, S/O PERACHAN, MAVULLA KANDIYIL,
KODUVALLY. P.O., CALICUT.

BY ADV. SRI.NIRMAL. S

RESPONDENT/S:
1 UNION OF INDIA
REP. BY THE SECRETARY TO GOVERNMENT,MINISTRY OF WOMEN
CHILD DEVELOPMENT,GOVT. OF INIDA, NEW DELHI-110
001.

2 CENTRAL ADOPTION RESOURCE AUTHORITY
REP BY ITS CHAIRPERSON,MINISTRY OF WOMEN CHILD
DEVELOPMENT,WEST BLOCK-8, WING 2,2ND FLOOR,RK PURAM,
NEW DELHI-110 066.

3 STATE ADOPTION RESOURCE AGENCY
REP. BY ITS DIRECTOR,RAJAGIRI COLLEGE OF SOCIAL
SCIENCE,KALAMASSERY, ERNAKULAM- 683 104.

4 DISTRICT CHILD PROTECTION UNIT
REP. BY PROTECTION OFICER,6TH BLOCK, CIVIL
STATION,KOZHIKODE-673 020.

BY ADVS.
SRI.T.V.VINU, CGC
GOVERNMENT PLEADER
SRI.T.V.VINU CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.8.2018, ALONG WITH WP(C).31780/2016, THE COURT ON 05.12.2018
DELIVERED THE FOLLOWING:
ANU SIVARAMAN, J.
———————————————–
W.P(C).No. 31780 of 2016

W.P(C).No. 4702 of 2017
———————————————–
Dated this the 5th day of December, 2018

JUDGMENT

These writ petitions are filed challenging the provisions of the

guidelines governing Adoption Regulations, 2017 issued under the

Juvenile Justice (Care and Protection of Children) Act, 2015 (for short,

‘the Act, 2015’). The essential challenge is against the eligibility criteria

for prospective adoptive parents as contained in Regulation 5 of the

Adoption Regulations, 2017 with regard to the maximum composite age

of prospective adoptive parents for the purpose of adoption of child up

to four years of age. The grounds for challenge in the writ petitions are,

however, different.

2. The petitioner in W.P(C).No.31780 of 2016, who is a non Hindu

aged 50 years at the time of filing of this writ petition, challenges the

provisions of Regulation 5(g) on the ground that it discriminates against

his right to adopt in so far as Hindu parents are permitted to adopt a

child in terms of the provisions of the Hindu Adoption and Maintenance

Act, 1956 (for short, ‘the Act, 1956’). It is therefore contended that since

a non Hindu is disabled from adopting a child of less than four years of
[WP(C) 31780/2016
WP(C).4702/2017 ] 5

age, if the composite age of the adoptive parents is greater than what is

prescribed under the Regulation, the said Regulation in the guidelines

amounts to a restrictive discrimination as against the right of a non

Hindu to adopt. Reliance is placed on the decisions of the Apex Court in

Lakshmi Kant Pandey v. Union of India [1984 KHC 616], Mary Sonia

Zachariah v. Union of India [1995(1) KLT 644(FB)], Delhi

Subordinate Services Selection Board v. Praveen Kumar [2017

KHC 2413], Saumya Ann Thomas v. Union of India [2010(1) KLT 869]

and Shabnam Hashmi v. Union of India and Others [(2014)4 SCC 1].

3. In W.P(C).No.4702 of 2017, the petitioners, who are Hindus by

religion aged 58 and 63 years respectively, challenge the guidelines on

the ground that the provision with regard to maximum composite age of

prospective parents is ultra vires the enabling provision in Section 57 of

the Act, 2015. It is further submitted that the said prescription of upper

age limit is unsupported by any study or any discernible reason

whatsoever. It is stated that the petitioners being physically fit and

economically competent are entitled to adopt a child of the age of their

choice. It is further contended that the Act, 1956 permits such adoption

by Hindus and the guidelines in so far as it restricts the right of Hindus to

adopt is violative of the provisions of the Act apart from being ultra vires

the enabling Statute as well. Reliance is placed on Anokha v. State of

Rajasthan [(2004)1 SCC 382], Commissioner of Police v.

Acharya Jagadishwarananda Avadhuta [(2004)12 SCC 770],
[WP(C) 31780/
2016
WP(C).4702/2017 ] 6

Chandrasekhara v. Kulandaivelu [AIR 1963 SC 185], Amarendra

Man Singh Bhramarbar v. Sanatan Singh [AIR 1933 PC 155], Bijoe

Emmanuel v. State of Kerala [AIR 1987 SC 748], Vareed

Porinchukutty v. State of Kerala [1971 KLT 204] Ratilal Panachand

Gandhi v. State of Bombay [AIR 1954 SC 388] and The

Commissioner, Hindu Religious Endowments, Madras v.

Sri.Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [AIR 1954 SC

282]. The essential contention of the petitioners in W.P(C).No.4702 of

2017 is that their right to adopt is an essential part of their religious

belief and faith and cannot be taken away by a temporal law on the

subject. On the question of reliance of age as means of classification, the

learned counsel relied on the decisions of the Apex Court in Indian

Council of Legal Aid Advice v. Bar Council of India [(1995)1 SCC

732], St.Johns Teachers Training Institute v. Regional Director,

National Council for Teacher Education and Another [(2003)3 SCC

321] and Delhi Subordinate Services Selection Board v. Praveen

Kumar [AIR 2017 SC 649].

4. A detailed counter affidavit has been placed on record on behalf

of respondents 1 and 2 in W.P(C).No.4702 of 2017. Pleadings have been

filed on behalf of the Central Adoption Resource Authority (CARA) as well.

The learned counsel appearing for the CARA would rely on the decisions

in Namit Sharma v. Union of India [(2013)1 SCC 745], In Re

Adoptaion of Payal [AIR 2010(1) BomC.R. 434], Darshana Gupta v.
[WP(C) 31780/2016
WP(C).4702/2017 ] 7

None [AIR 2015 Rajasthan 105] and Rajendra Prasad v. Union of

India [2015(3) KHC 905 (DB)]. It is contended that the regulation itself

provides an efficacious remedy and the decisions cited by the petitioners

would be of no avail in a situation governing adoption of a child, since all

that has to be looked into is the best interest of the child and there is

absolutely no fundamental right for any prospective parents to adopt a

child. It is stated that the Act, 2015 is a child-centric legislation and the

provision regarding upper age limit is only a reasonable restriction

imposed on the adoption of children. It is stated that the restriction is

based on a clear perception as to the best interest of a child in mind and

the probability of the prospective adoptive parents surviving to see the

child through it’s formative years. It is stated that this Court should

always presume the constitutional validity of a provision of law unless a

challenge based on discrimination is clearly made out. It is stated that in

the absence of any right to adopt, the entire argument based on the

rights of the prospective adoptive parents is bound to fail.

5. I have considered the contentions advanced and have gone

through the pleadings as well as the extensive case law cited before me.

The contention of the petitioner in W.P(C).No.31780 of 2016 is based on a

presumed discrimination on the ground of religion. The contention is that

the Act, 2015 itself carves out an exemption in respect of Hindus with the

result that Christians as well as other non Hindus are discriminated

against in the matter of adoption, since the restrictive clauses in the
[WP(C) 31780/2016
WP(C).4702/2017 ] 8

CARA guidelines are applicable only to non Hindus. According to me, this

argument on which this writ petition is conceived itself is a

misapprehension. The Act, 1956 governs only voluntary adoptions by

known parents to known and specified adoptive parents with full

willingness on both sides. This apparently was the known form of

adoption on which both these writ petitions are based. However, when it

comes to the adoption of a child in need of care and protection or a

juvenile in conflict with law or an abandoned child in terms of the Act,

2015, the provisions of the said Act and the guidelines made thereunder

prevail over any provision of any personal law on the subject. Therefore,

a child in need of care and protection or an abandoned child in terms of

the Act, 2015 can be offered or taken in adoption only in terms of the

guidelines prescribed under the Act, 2015. If that be so, the challenge

raised on the ground of discrimination can have no application

whatsoever, since what is being dealt with in all these cases is adoption

of abandoned or surrendered children who are legally free for adoption.

6. With regard to the contention that Regulation 5(4) of the 2017

Regulation is ultra vires the provisions of the enabling statute, I notice

that specific power is conferred on the authority by the enactment to

frame regulations on adoption and related matters. The criteria to be

satisfied by prospective adopted parents to make them eligible to adopt

the child of a particular age is specifically a matter relating to adoption

and as such the argument that the clause is ultra vires the enabling
[WP(C) 31780/2016
WP(C).4702/2017 ] 9

statute cannot be accepted. While it is true that the enabling Act does

not contain the restriction as to age of adoptive parents, the authority

has been specifically given the power to frame the regulations for

adoption and as such, the authority is well within its powers in

formulating criteria for such adoptions.

7. Section 57 of the Juvenile Justice (Care and Protection of

Children) Act, 2015 reads as follows:-

“Eligibility of Prospective adoptive parents:- (1)
The prospective adoptive parents shall be physically fit,
financially sound, mentally alert and highly motivated to
adopt a child for providing a good upbringing to him.

(2)In case of a couple, the consent of both the spouses
for the adoption shall be required.

(3) A single or divorced person can also adopt, subject
to fulfilment of the criteria and in accordance with the
provisions of adoption regulations framed by the Authority.

(4) A single male is not eligible to adopt a girl child.
(5) Any other criteria that may be specified in the
adoption regulations framed by the Authority.”

8. Section 68 empowers the Central Adoption Resource Agency to

frame regulations on adoption and related matters from time to time as

may be necessary. In view of the fact that the Act specifically states that

eligibility of prospective adoptive parents shall have the criteria

specified in the Adoption Regulations framed by the Authority, the

argument on statutory ultra vires must immediately fail.
[WP(C) 31780/2016
WP(C).4702/2017 ] 10

9. Clause 5(4) of the Adoption Regulations, 2017 reads as under:

“5. Eligibility criteria for prospective adoptive parents.-

(1) xx xx
(4) The age of prospective adoptive parents, as on the date of
registration, shall be counted for deciding the eligibility and the
eligibility of prospective adoptive parents to apply for children of
different age groups shall be as under:

Age of the child Maximum composite age of Maximum age of
prospective adoptive parents single prospective
(couple) adoptive parent
Upto 4 years 90 years 45 years
Above 4 and 100 years 50 years
upto 8 years
Above 8 and 110 years 55 years
upto 18 years

The Regulation forms a part of the prescription of eligibility to adopt and

this Court would not be justified in examining the reasons for the

individual criteria framed by the Authority which is vested with the power

to frame such guidelines. The CARA has framed the guidelines which fall

well within it’s powers and no sustainable grounds are raised in support

of the challenge to the prescription of age limit in the guidelines. The

challenge raised must therefore fail.

10. With regard to the contention in W.P(C).No.4702 of 2017, again

the entire argument is based on the right of Hindu adoptive parents to

adopt a child. In Shabnam Hashmi v. Union of India and Others

[(2014)4 SCC 1], the Apex Court has held in unequivocal terms that there

is no fundamental right vested in prospective adoptive parents to adopt a

child. The right to adopt is a legal right which has to conform to the
[WP(C) 31780/2016
WP(C).4702/2017 ] 11

various reasonable restrictions imposed by the Rules or Regulations

which are framed to protect the best interest of the child. The question

whether the right to adopt is an integral part of the religion of the

petitioners, according to me, is of no consequence whatsoever in a

scenario where the child who is sought to be adopted is a surrendered or

abandoned child who is free for adoption and is therefore governed by

the provisions of the Act, 2015. Once it is admitted that the child is either

a child in need of care and protection and that the adoption is liable to be

regulated in terms of the Act, 2015, then the petitioners’ right to adopt is

regulated by the Regulations framed under the said Act and the rights of

the prospective parents has to immediately give way to the best interest

of the child.

11. The Apex Court in Shabnam Hashmi’s case (supra) held that

personal laws cannot be allowed to dictate to operate over the provisions

of an enabling statute like the Juvenile Justice Act, 2000 and cannot come

in the way of a person who chooses to adopt a child under the Juvenile

Justice Act. It was held that the Juvenile Justice Act, 2000 is a secular law

and a small step in reaching the goal of Uniform Civil Code under Article

44 of the Constitution of India and that it overrides the Personal Law. It is

further stated at paragraph 16 of the said judgment as follows:

“16. 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
[WP(C) 31780/2016
WP(C).4702/2017 ] 12

dimensions and perspectives of the meaning and content of the
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 and the Kerala High Court in Philips
Alfred Malvin 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 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.”

Even in terms of the Hindu Adoption and Maintenance Act, 1956, this
[WP(C) 31780/2016
WP(C).4702/2017 ] 13

Court as well as the Apex Court has repeatedly cautioned that it is not

the right of the parents which is paramount but the best interest of the

child which is sought to be adopted which has to be looked into in any

matter concerning adoption. I am therefore of the clear view that the

arguments raised on the strength of the rights of the parents to adopt

has to fail, since the CARA guidelines are admittedly those issued with

the best interest of the child in mind.

12. In a matter of adoption, what is to be looked into is the welfare

of the child and where it is stated that the maximum age is prescribed

keeping in mind the probability of the prospective adoptive parents

surviving the formative years of the child, this Court cannot, in exercise

of its powers of judicial review, say that such a guideline is violative of

the right of the prospective adoptive parents or that it is discriminatory.

It is not for this Court to consider the reasons behind the fixing of a

particular age or to substitute it’s own wisdom for that of the executive

by fixing a criteria for adoption at variance with those provided in the

impugned guidelines. In case the petitioners have a contention that the

guidelines issued by the CARA are not supported by scientific studies, it

is for them to approach the CARA seeking appropriate steps in the

matter. Since the guidelines for adoption clearly affect the rights of

prospective adoptive parents, I am sure, the concerns raised by the

petitioners will be addressed appropriately by the CARA.
[WP(C) 31780/2016
WP(C).4702/2017 ] 14

However, the challenge raised against the guidelines on the ground

of discrimination as also on the ground of unreasonableness and ultra

vires are, according to me, not sustainable. The challenge therefore is

repelled. The writ petitions are dismissed reserving the rights of the

petitioners to approach the CARA as mentioned above, if so advised.

Sd/-

ANU SIVARAMAN
JUDGE

vgs
[WP(C) 31780/2016
WP(C).4702/2017 ] 15

APPENDIX OF WP(C) 31780/2016
PETITIONER’S/S EXHIBITS:

EXHIBITP1 TRUE PHTOCOPY OF REGISTRATION
ACKNOWLEDGEMENT LETTER DATED 11-5-2016
ISSUED TO THE PETITINER

EXHIBIT P2 TRUE PHTOCOPY OF THE NEWS REPORT IN THE
MALAYALA MANORAMA DAILY DATED 25-8-2016

EXHIBIT P3: COPY OF RELEVANT PORTIONS OF THE
NOTIFICATION ISSUED BY THE 1ST RESPONDENT
GSR 3(E) DATED 4.1.17, CONTAINING THE
RELEVANT PAGES OF THE ADOPTION REGULATION
2017.
[WP(C) 31780/2016
WP(C).4702/2017 ] 16

APPENDIX OF WP(C) 4702/2017
PETITIONER’S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE MARRIAGE CERTIFICATE DATED
18-05-1978.

EXHIBIT P2 TRUE COPY OF THE ADOPTION REGULATION 2017.

EXHIBIT P3 TRUE COPY OF THE LAND TAX RECEIPT ISSUED IN
THE NAME OF THE 1ST PETITIONER DATED 10-06-
2016.

EXHIBIT P4 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED
19-09-2016.

EXHIBIT P5 COPY OF THE PENSION PAYMENT ORDER DATED 11-
03-2015.

EXHIBIT P6 TRUE COPY OF THE CERTIFICATE OF PHYSICAL
FITNESS BY THE SINGLE MEDICAL BOARD FOR THE
1ST PETITIONER DATED 31.12.2016.

EXHIBIT P7 TRUE COPY OF THE CERTIFICATE OF PHYSICAL
FITNESS BY THE SINGLE MEDICAL BOARD FOR THE
1ST PETITIONER DATED 31.12.2016.

EXHIBIT P8 TRUE COPY OF THE PRINTOUT OF THE WEB THROUGH
WHICH THE ONLINE APPLICATION MADE BY THE
PETITIONERS.

EXHIBIT R1(a): COPY OF HOME STUDY REPORT FORMAT.

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