This article is written by Daksh Ghai, from Symbiosis Law School, Noida. The article provides a critical analysis of the case of Sumed v. Nil, the article further provides a detailed discussion on the several provisions that were used in this case.
Table of Contents
Introduction
The biological parents of a minor child wanted to give their daughter for adoption in the case of Sumed v Nil, but the lower courts ruled that under the Juvenile Justice Act of 2015, the minor child could not be given for adoption because she was not a child in conflict with the law or in need of care and protection. The Juvenile Justice Act of 2015 is India’s primary legal framework for child protection. The Act ensures the safety, security, education, and well-being of children in need in India. The Act suggests making inquiries to see if a child’s vulnerability necessitates his placement in a children’s home.
The case of Sumed v. NIL
Facts
In this case, an application was filed by the applicants who were the biological parents of a minor girl who wanted to give their minor daughter to prospective adoptive parents herein under the provisions of the Juvenile Justice Act, 2015 (JJ Act) and Adoption Regulations, 2017 framed under the said Act.
The application was rejected by the Court of District Judge, Yavatmal, the ground on which the District Magistrate rejected the application was that the child, in this case, was neither a child in conflict with the law, nor a child in need of care and protection, nor an orphan, nor a surrendered/ abandoned child and therefore, provisions of the JJ Act, 2015 would not apply.
Issue
Can adoption of children be restricted only to orphaned, abandoned, or surrendered children or those in conflict with the law or in need of care and protection?
Judgement
The applicants went to High Court, the court-appointed amicus curiae who submitted that if the contents of the JJ Act, 2015 were compared to those of the previous enactment, the Juvenile Justice (Care and Protection of Children) Act, 2000 it is clear that the JJ Act, 2015 has numerous new provisions. As a result, the scope of the legislation expanded, and it now includes a specialised method for child adoption for relatives.
On this basis, it was asserted that the lower court could not have found that the application deserved to be rejected because the kid in question was not in violation of the law or in need of care and protection.
The learned Amicus Curiae cited the Supreme Court’s decision in the matter of Shabnam Hashmi v. Union of India (2014) to argue that a person could adopt a kid under either the applicable personal law or the JJ Act, 2015, which is a secular law aimed at accomplishing the goal expressed in Article 44 of the Indian Constitution about a Uniform Civil Code for citizens.
The Bombay High Court’s Nagpur Bench ruled that under the Juvenile Justice Act, 2015, adoption of children cannot be limited to orphaned, abandoned, or surrendered children, or those in conflict with the law or need of care and protection.
Various provisions applied in the case
Right to the family for an orphan abandoned and surrendered children
Section 56(1) of the Juvenile Justice Act states that adoption should be used to ensure that orphaned, abandoned, and surrendered children have a family. It was held in the case of Lakshmi Kant Pandey vs Union of India (1984) that every child has the right to love and be loved, as well as to grow up in an environment of care and devotion, as well as a moral and material stability, and that this can only be achieved if the child is raised in a family. According to Article 39(f) of the Indian Constitution, the state should guarantee that children have the chance and resources they need to grow up healthy and dignified to prevent childhood and adolescents from exploitation, moral and material abandonment and exploitation. Article 4 of the UN Guidelines for Alternative Care of Children, 2009 states that every child and young person deserves to grow up in a nurturing, protecting, and caring environment that encourages them to reach their best potential.
Adoption by a relative
Earlier, only an orphan, abandoned, or a surrendered child could be adopted. The government has now broadened the criteria of children eligible for adoption in the Juvenile Justice Act to include a kid of a relative as well as a child or children of a spouse from a previous marriage who have been given for adoption by their biological parents. Relatives, as defined by Section 2(52) of the Act, include paternal uncles or aunts, maternal uncles or aunts, paternal grandparent or maternal grandparent, who can adopt children from a relative and have a legal relationship with them. A relative residing abroad who wishes to adopt a child from a relative in India must receive a court order and apply for a No-Objection Certificate from the Administration in the way prescribed by the Authority’s adoption guidelines.
Hindu Adoption and Maintenance Act,1956
Nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act, 1956. The difference between Juvenile Justice Act and the Hindu Adoption Act is that in the Hindu Adoption and Maintenance Act only Hindu children up to the age of 15 years can be adopted, same-sex children can not be adopted and inter-country adoptions can not be done under HAMA while Juvenile Justice Act is a secular Act and children up to the age of 18 years can be adopted, no such condition as to same-sex adoption and all inter-country adoptions can be done as per the Section 56(4) of the Juvenile Justice Act.
Prospective adoptive parents’ eligibility
Section 57 of the Juvenile Justice Act states that the adoptive parents must be in good bodily, mental, and emotional health, as well as financially capable and free of any life-threatening medical conditions. Any prospective adoptive parents, regardless of marital status or whether or not they have a biological son or daughter, can adopt a child if they meet the following criteria:
- In the case of a married couple, both spouses must consent to the adoption;
- A single female can adopt a child of any gender;
- A single male cannot adopt a girl child.
Duties of specialised adoption authority for adoption procedure for Indian prospective adoptive parents who live in India
- A specialised adoption agency under Section 2(57) of the Act should be established and should be given the duty to house orphans, abandoned, and surrendered children who have been placed there by the Committee for adoption.
- If an Indian prospective adoptive parent, regardless of religion, wishes to adopt an orphan, abandoned, or surrendered child, he or she must apply to a Specialised Adoption Agency in the manner prescribed by the Authority’s adoption laws.
- The Specialised Adoption Agency will start preparing the prospective adoptive parents’ home study report and, if they are found to be eligible, will refer a child who has been declared legally free for adoption to them, along with the child’s child study report and medical report, following the Authority’s adoption regulations.
- Upon receipt of the child’s acceptance as well as the child’s child study report and the medical report signed by such parents, the Specialised Adoption Agency shall place the child in pre-adoption foster care and file an application in court for an adoption order, in the manner specified in the adoption regulations.
- The Specialised Adoption Agency will provide a certified copy of the court order to the prospective adoptive parents as soon as it receives it.
- The progress and well-being of the child in the adoptive family shall be monitored and verified by the Authority’s adoption regulations.
Adoption by a person from a different nation
Section 59 of the Act states that, if despite the joint efforts of the Specialised Adoption Agency and the State Agency, an orphan, neglected, or surrendered child could not be placed with an Indian or Non-Resident Indian prospective adoptive parent within sixty days of the date the child was declared legally free for adoption, the child shall be free for inter-country adoption:
- If one is willing to adopt a kid from India, he must be a Non-Resident Indian or an overseas citizen of India, or a person of Indian descent or a foreigner, regardless of one’s religion the person can apply for adoption through a registered foreign adoption agency, the Central Authority, or a concerned Government department in their country of usual residence.
- It will be the duty of the foreign adoption agency to prepare the home study report of such prospective adoptive parents if they are found to be eligible, and will support their application to the Authority for the adoption of a child from India in the manner prescribed by the Authority’s adoption regulations.
- When the Authority receives an application from such prospective adoptive parents, it will investigate it and, if the applicants are found to be acceptable, it will refer the application to one of the Specialised Adoption Agencies, where children who are legally free for adoption will be available.
Conclusion
The Juvenile Justice Act of 2015 provides a separate new chapter on Adoption to streamline adoption procedures for orphaned, abandoned, and surrendered children.
The Act aims to reform and rehabilitate juvenile offenders so that they can become productive members of society. India’s commitment as a member to the United Nations Convention on the Rights of the Child, the Hague Convention for the Protection of Children and Cooperation in Respect of Inter-country Adoption (1993), and other similar international documents are fulfilled by this Act. As a signatory, India is obligated to take all necessary steps to protect children’s rights in the areas of juvenile justice, care and protection, and adoption.
Also, the Central Adoption Resource Authority (CARA) has now been granted the status of a statutory body to enable it to perform its function more effectively. The Act makes the registration of all children’s homes mandatory, bringing in more transparency and efficiency in the system. Adoption of children cannot be limited to orphaned, abandoned, or surrendered children, or those conflict with the law or in need of care and protection.
References
- http://cara.nic.in/PDF/JJ%20act%202015.pdf
- https://tcw.nic.in/Acts/Hindu%20adoption%20and%20Maintenance%20Act.pdf
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