Kerala High Court
Jeshy C.O vs Union Of India on 17 January, 2019
Author: Hrishikesh Roy
Bench: Hrishikesh Roy, K.Abraham Mathew
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:
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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.
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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.
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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
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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