Jeshy C.O. v. Union of India; Remabai M.K. v. Union of India

## **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 5[th] 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_<br>_prospective adoptive parents_<br>_(couple)_|_Maximum age of_<br>_single_<br>_prospective_<br>_adoptive parent_| |---|---|---| |_Upto 4 years_|_90 years_|_45 years_| |_Above 4 and_<br>_upto 8 years_|_100 years_|_50 years_| |_Above 8 and_<br>_upto 18 years_|_110 years_|_55 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 10-062016.** **EXHIBIT P4 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 19-09-2016.** **EXHIBIT P5 COPY OF THE PENSION PAYMENT ORDER DATED 1103-2015. 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.**