IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
Darshana Gupta Vs. None & Anr.
S.B. CIVIL MISC. APPEAL NO. 144/15
DATE OF JUDGMENT:
February 9, 2015.
PRESENT
HON'BLE MR. JUSTICE P.K. LOHRA
Reportable
Citation;AIR 2015 Raj105
This legal battle is unique wherein appellant is
not pitted against any opponent much less formidable
opponent.
Appellant, Ms. Darshana Gupta, has laid this
appeal under Section 52 of the Juvenile Justice (Care &
Protection of Children) Act, 2000 (for short, ‘Act of 2000’)
read with Order 43 rule 1 of the Code of Civil Procedure,
1908 (for short, ‘CPC’) to assail the impugned order
[2]
dated 18th December 2014, passed by learned District
Judge, Udaipur (for short, 'learned Court below).
By the order impugned, endeavour made by
the appellant in unison with proforma respondent Rajkiya
Balika
Garh/Visheshak
Dattak
Garhn
Agency,
Bal
Adhikarita Vibhag, under Section 9 (4 & 5) of the Hindu
Adoptions and Maintenance Act, 1956 (for short, ‘Act of
1956’) read with Section 41 of the Act of 2000, to adopt
a minor girl, Priti, proved abortive inasmuch as the
learned
Court below declined her prayer by citing
embargo envisaged in clause (ii) of Section 11 of the Act
of 1956, under the caption “Other conditions for a valid
adoption”.
Succinctly stated, the facts of the case are that
the appellant is presently working as Joint Director,
Pension Department having her posting at Udaipur. She
made endeavour to adopt minor girl Priti, and for that
purpose she invoked provisions of Section 9(4) & (5) of
the Act of 1956 read with Section 41 of the Act of 2000
by submitting a joint application before the learned Court
below.
This effort was made by the appellant seeking
declaration for adoption of the minor child.
Along with
her application, appellant also annexed an affidavit
[3]
claiming, inter-alia, that she moved an application for
adopting minor girl Priti before the co-applicant, which is
now a proforma respondent. In her application, material
particulars about registration of the minor girl were also
incorporated. Facts were also pleaded in the application
that the Board of the proforma respondent found her
entitled for adoption of minor girl Priti w.e.f. 6th of June
2014 and since then Priti is in custody and guardianship
of the appellant.
The requisite documents, pertaining to
decision of the Board dated 06.06.2014 as well as
custody and guardianship of the minor child, were also
submitted before the learned Court below.
With all
humility at her command, the appellant made endeavour
to seek declaration and permission from the learned
Court
below
for
adopting
the
minor
girl.
For
substantiating her intention to adopt minor girl Priti,
appellant also appeared in the witness box and proved all
the documents.
In all, during her examination, six
documents were exhibited.
After conclusion of the
evidence, the learned Court below thrashed out the
matter and rejected the application by the impugned
order.
[4]
Learned counsel for the appellant Dr. Sachin
Acharya submits that the Act of 2000 is enacted with
laudable objects for the rehabilitation and providing social
integration
to
orphaned,
abandoned
or
surrendered
children and therefore it is intended to regulate the
interface all the laws with children in conflict with law. Dr.
Acharya, therefore, submits that in case of adoption of
Orphaned, abandoned or surrendered children, the power
envisaged under Section 11 (i) & (ii) of the Act of 1956
cannot be cited as an embargo for the Hindu having
biological child of alike gender from adopting the child of
same gender.
Dr. Acharya has strenuously urged that in
such cases, need of the hour is to have a pragmatic
rather than purely idealistic and pedantic approach for
farthering the aims and objects of the Act of 2000.
Dr.
Acharya further submits that the Act of 2000 does not
envisage a restrictive condition foreclosing the rights of
the parents, who have a child, to adopt another child of
the same gender.
On the strength of these submissions,
learned counsel has vociferously urged that the learned
Court
below
has
not
made
any
endeavour
to
harmoniously construe the provisions contained under the
Act of 2000 with the Act of 1956, and as such the
impugned order cannot be sustained. Lastly, Dr. Acharya
[5]
has urged that in the impugned order the learned Court
below has not at all cared to discuss the provisions of the
Act of 2000 and therefore the order is vitiated.
In
support of his contentions, learned counsel has placed
reliance on following legal precedents:
·
In Re: Adoption of Payal @ Sharinee Vinay Pathak
and his wife Sonika Sahay @ Pathak, [2010(1) Bom
CR 434]
· Rajan Mittal & Anr. Vs. Nari Niketan Trust (Regd.)
Nakodar Road, Jalandar [2012 (4) RCR (Civil) 541]
· The Secretary, Subhadra Mahatab Seva Sadan of
Kolathia & Anr. Vs.State of Orissa (AIR 2013 Ori
110]
In Re: Adoption of Payal @ Sharinee Vinay
Pathak & Anr. (supra), the Bombay High Court examined
the provisions of the Act of 1956 as well as the Act of
2000 threadbare, more particularly, focusing on the
embargo envisaged under clause (ii) of Section 11 of the
Act of 1956.
The Court held:
“The Hindu Adoptions and Maintenance
Act, 1956 and the Juvenile Justice Act, 2000
must be harmoniously construed. The
Hindu Adoptions and Maintenance Act,
1956 deals with conditions requisite
for adoption by Hindus. The Juvenile Justice
Act of 2000 is a special enactment dealing
with children in conflict with law and
children in need of care and protection.
While enacting the Juvenile Justice Act 2000
the legislature has taken care to ensure
that its provisions are secular in character
[6]
and that the benefit of adoption is not
restricted to any religious or social group.
The focus of the legislation is on the
condition of the child taken in adoption. If
the child is orphaned, abandoned or
surrendered, that condition is what triggers
the beneficial provisions for adoption. The
legislation seeks to ensure social integration
of such children and adoption is one method
to achieve that object. The religious identity
of the child or of the parents who adopt is
not a precondition to the applicability of the
law. The law is secular and deals with
conditions of social destitution which cut
across religious identities. The legislature in
its wisdom clarified in sub-section (6) of
Section 41 that the Court may allow a child
to be given in adoption to parents to adopt
a child of the same sex irrespective of the
number of living biological sons or
daughters. This provision is intended to
facilitate the rehabilitation of orphaned,
abandoned or surrendered children. The
condition must apply to all persons
irrespective of religious affiliation who seek
to adopt children of that description. The
object of rehabilitation and providing for
social reintegration to orphaned, abandoned
or surrendered children is a matter of high
legislative policy. It is in effectuation of that
policy that the legislature has stipulated
that adoption of such a child must proceed
irrespective of the marital status of a
person taking in adoption and irrespective of
the number of living biological children of
the
parents
seeking adoption.
Consequently, where the child which is
sought to be adopted falls within the
description of an orphaned, abandoned or
surrendered child within the meaning of
sub-section (2) of Section 41 or a child in
need of care and protection under Clause
(d) of Section 2, the provisions of the
Juvenile Justice (Care and Protection of
Children) Act 2000 must prevail. In such a
case the embargo that is imposed on
adopting a child of the same sex by a Hindu
[7]
under Clauses (i) and (ii) of Section 11 of
the Hindu Adoptions and Maintenance Act,
1956 must give way to the salutary
provisions made by the Juvenile Justice Act.
Where, however, the child is not of a
description falling under the purview of
Chapter IV of the Juvenile Justice Act,
2000, a Hindu desirous of adopting a child
continues to be under the embargo imposed
by Clauses (i) and (ii) of Section 11 of the
Act of 1956. If the two pieces of legislation,
both of which are enacted by Parliament are
harmoniously construed, there is no conflict
of interpretation. Resolution of Conflicting
provisions the alternate hypothesis.
Alternatively, even if there were to be
a conflict between the provisions of the
Hindu Adoptions and Maintenance Act, 1956
and the Juvenile Justice Act of 2000, it is
the latter Act which would prevail. This is on
the well settled principle that when there
are two special Acts dealing with the same
subject matter, the legislation which has
been enacted subsequently should prevail.
The Supreme Court applied this principle in
the context of a conflict between the
Companies Act 1956 and the Recovery of
Debts Due to Banks and Financial
Institutions Act, 1993 in its decision in
Allahabad Bank v. Canara Bank, (2000) 4
SCC 406. Where a later enactment does not
expressly amend (whether textually or
indirectly) an earlier enactment which it has
power to override, but the provisions of the
later enactment are inconsistent with those
of the earlier, the later by implication
amends the earlier so far as is necessary to
remove the inconsistency between them.
Bennion on Statutory Interpretation (5th
ed., 2008) § 80: Implied amendment.
Here, the 1956 Act prohibits a Hindu
from adopting a child when he or she
already has a child of the same gender, and
the 2000 Act creates a general right to
adopt abandoned, surrendered, or orphaned
children. While there is a presumption
[8]
against implied amendment or repeal under
Indian law, the Supreme Court has
recognized that "this presumption may be
rebutted where the inconsistency cannot be
reconciled." Municipal Council, Palai v. T.J.
Joseph AIR 1963 SC 156, 1, 1564. If the
2000 Act is held to be inconsistent with the
1956 Act, when passing the later Act
Parliament
impliedly
amended
the
Hindu Adoptions and
Maintenance
Act,
1956, to permit adoption of children in the
specified subclass, irrespective of whether a
person has children of the same sex.”
In Rajan Mittal & Anr. (supra), High Court of
Punjab & Haryana, while relying on the decision of
Bombay High Court in Payal @ Sharinee Vinay Pathak &
Anr. (supra), reiterated the same principle that the Act of
1956 and the Act of 2000 must be harmoniously
construed and held:
“It was finally held in the said
judgment that a Hindu couple governed by
the 1956 Act can adopt a child of the same
gender under the provisions of the Act.
Similar is the ratio of the another judgment
of Bombay High Court in Indian Association
for Promotion of Adoption and Child Welfare
and Christopher Drury and Shenz Drury,
wherein it was held that a couple already
adopted one girl child is entitled to adopt
another girl child under the Act reported in
1 FAP 1/2012 decided on January 13, 2012.
Before disposal of this petition, an attempt
was made to ensure that adoption of minor
is bonafide and for the welfare of the child.
The petitioner had undertaken to fulfill any
condition imposed by the Court to ensure
the future welfare of the child. Prima facie
the adoption in the present case is, in
[9]
consonance with the provisions and
objectives of The Juvenile Justice (Care and
Protection of Children) Act, 2000 and The
Juvenile Justice (Care and Protection of
Children) Rules, 2007. I follow the opinion
of Bombay High Court in the matter of
Payal's case (supra) and hold that the
petitioners are entitled to adopt the second
child. The impugned order dated August 31,
2010 is hereby set aside.”
In Secretary, Subhadra, Mahatab Seva Sadan
(supra), Orissa High Court has also reiterated the same
principle in case of two minor girl children who were
being reared as siblings by permitting their adoption in
the same family. The Court held:
“Law is well settled that it is the
substance and not the form which is to be
looked in to by a Court of law while deciding
any lis and appropriate relief to which a
party may be entitled to should not be
withheld on the technical ground that the
nomenclature of an application has been
made wrongly. The documents which were
produced before the learned District Judge
clearly envisage that the petitioners
intended to obtain an order of allowing
adoption under the J.J. Act and not under
the Act, 1956. It was, therefore, incumbent
upon the learned District Judge to deal with
both the applications to be under the J.J.
Act. Further, in view of the documents
produced and in view of the provisions of
the J.J. Act, as discussed above, there was
no scope on the part of the learned District
Judge to call for a report from the Orissa
State Council for Child Welfare, who in an
evasive manner only stated in their report
in one line that the petitioner No.2 is not
eligible to adopt two girl children under
Section 11 of the Hindu Adoption and
[10]
Maintenance Act, 1956 and relying upon
which
the
learned
District
Judge
mechanically held that Section 11 is a bar
for the petitioner No. 2 to adopt both the
girl children without considering the ratio of
the decision in the case of Lakshmi Kant
Pandey (supra) in its proper perspective
and the CARA Guidelines. In such cases, it
is always incumbent upon the learned
District Judge to carefully scrutinize as to
whether giving an approval/sanction for
adoption is in the best interest of the child
in question, who needs care and protection
as per the provisions of the J.J. Act for
which the petitioners produced all required
documents before him. The learned District
Judge, therefore keeping the spirit of the
provisions of the J.J. Act in Section
41 thereof and the law as laid down by the
apex Court should have allowed the
applications
for
rehabilitation
and
reintegration of both the girl children in the
family of the petitioner No.2.
In view of the materials available
on record, this Court has, therefore, no
hesitation to hold that both Kuni and Gudly
were under the custody and care of the
petitioner No.1 and being reared as siblings,
are now under the petitioner No.2 pursuant
to
her
executing
the
Foster
Care
agreement. Both the said children are in
need of care and protection and as already
held are required to be rehabilitated and
socially reintegrated as early as possible
within the period prescribed by placing
them in the family by giving them in
adoption to the petitioner No.2 so that such
children will feel themselves to be an
integral part of the society and will not be
looked down upon.”
Mr. S.S. Ladrecha, learned Addl. Advocate
General, who was called upon by the Court to render
assistance in the matter keeping in view the larger public
[11]
interest, submits that the Courts are meant for imparting
justice and not to thwart the same.
While emphasizing
the rigor of Article 21, 39, 45, 47 & 51A of the
Constitution,
Mr.
Ladrecha
also
concurs
with
the
submission of the learned counsel for the appellant that
the Act of 2000 and the Act of 1956 are to be
harmoniously construed and greater care for minor
children in destitute is desirable to facilitate effective
implementation of the Act of 2000.
Mr. Ladrecha has
also referred to the provisions of the Rajasthan Children
Act 1970 to support the cause of the appellant with a
submission to examine the lis with a pragmatic approach
in the best interest of orphanded, abandoned and
surrendered children.
I have heard learned counsel for the appellant
and learned Addl. Advocate General, and perused the
impugned order, application submitted by the appellant
before the learned Court below, the documents annexed
thereto as well as the statement of the appellant, with
the assistance of learned counsel for the appellant.
Instant case is a glaring example where
appellant’s pursuit to adopt second child of same gender,
[12]
i.e. a female child, has foiled without any resistance on
account of lackadaisical approach of the learned Court
below.
A bonafide endeavor of the appellant to adopt a
female orphaned child for her rehabilitation and social
reintegration has turned out to be a catastrophe due to
stringent provision contained under Section 11(ii) of the
Act of 1956. Although learned Court below has not cared
to examine the issue in the background of welfare
legislation, i.e. the Act of 2000, but this Court feels that
the matter is to be sorted out while explicating the
conflict between the two legislations, viz., the Act of 1956
and the Act of 2000.
The Act of 1956 deals with the
subject of adoptions and maintenance among Hindus. It
provides a complete procedure for adoption by a Hindu by
conferring right to take Hindu female in adoption.
As
such, it is a general law governing the province of
adoption amongst Hindus. On the other hand, the Act of
2000 is a special legislation enacted with laudable
objects.
The Act is for providing “care, protection and
treatment by catering to their development needs, and by
adopting a child-friendly approach in the adjudication and
disposition of matters in the best interest of children and
for their ultimate rehabilitation”.
The preamble to the
Act of 2000 makes reference of several Constitutional
[13]
provisions having bearing on the welfare of the children
which are Article 15, 39, 45, 47 and 51A.
Section 41 of
the Act of 2000 as amended by Act No.33 of 2006 reads
as under:
41. Adoption- (1) The Primary responsibility
for providing care and protection to children
shall be that of his family.
(2) Adoption shall be restored to for the
rehabilitation of the children who are
orphan, abandoned or surrendered through
such mechanism as may be prescribed.
(3) In keeping with the provisions of the
various guidelines for adoption issued from
time to time, by the State Government, or
the Central Adoption Resource Agency and
notified by the Central Government,
children may be given in adoption by a
Court after satisfying itself regarding the
investigations having been carried out as
are required for giving such children in
adoption.
(4) The State Government shall recognize
one or more of its institutions or voluntary
organizations in each district as specialized
adoption agencies in such manner as may
be prescribed for the placement of orphan,
abandoned or surrendered children for
adoption in accordance with the guidelines
notified under sub-section (3):
Provided that the children's homes and
the
institutions
run
by
the
State
Government or a voluntary organization for
children in need of care and protection, who
are orphan, abandoned or surrendered,
shall ensure that these children are declared
free for adoption by the Committee and all
such cases shall be referred to the adoption
agency in that district for placement of such
children in adoption in accordance with the
guidelines notified under sub-section (3).
[14]
(5) No child shall be offered for adoption -
(a) until two members of the Committee
declare the child legally free for
placement in the case of abandoned
children:
(b) till the two months period for
reconsideration by the parent is over in
the case of surrendered children, and
(c) without his consent in the case of a
child who can understand and express his
consent.
(6) The Court may allow a child to be given
in adoption -
(a) to a person irrespective of marital
status or;
(b) to parents to adopt a child of same
sex irrespective of the number of living
biological sons and daughters; or
(c) to childless couples.
A bare reading of sub-section (6) of Section 41
of the Act of 2000 makes it crystal clear that a person is
competent to adopt a child irrespective of marital status
and also child of same sex irrespective of number of
living biological sons or daughters.
Therefore, the
embargo for adopting a child of same sex, as envisaged
under Section 11 (ii) of the Act of 1956, has been done
away under the Act of 2000 for adoption of orphaned,
abandoned or surrendered, or child in destitution, with
the solemn object of their rehabilitation and their social
reintegration.
[15]
Perusal of the impugned order clearly and
unequivocally reveals that the learned Court below has
not addressed the issue involved in the light of provisions
contained under the Act of 2000 and has simply non-
suited the appellant by relying on the legal embargo
under Section 11 (ii) of the Act of 1956. In my opinion,
appellant, who is a responsible officer of the Government,
has solicited the approval of the Court, in unison with the
proforma respondent, to adopt a female child to act as
her parent for providing care and protection to her as
part of her family.
In the present era of woman empowerment,
such an endeavor of the appellant is appreciable and
deserves
encouragement
technicalities.
by
the
law
Courts
sans
Looking to the social status of the
appellant and the fact that she is maintaining the child for
last more than seven months, there remains no doubt
about her intentions and credentials.
In the changed
social scenario, the Act of 1956 and the Act of 2000 are
liable
to
be
rehabilitation
construed
and
social
harmoniously
reintegration
abandoned and surrendered children.
to
of
ensure
orphaned,
[16]
There remains no quarrel that the Act of 1956
deals with the conditions requisite for adoption by Hindus,
whereas the Act of 2000 is a special enactment dealing
with children in conflict with law and children in need of
care and protection.
As observed hereinabove, sub-section (6) of
Section 41 of the Act of 2000 empowers the Court to
allow appellant/parents to adopt a child of same sex
irrespective of the number of living biological sons or
daughters, the embargo envisaged under clause (ii) of
Section 11 of the Act of 1956 is to yield before the Act of
2000 as it is a special legislation and the Act of 1956 is a
general law applicable for Hindus.
Thus, even if there is
a conflict between the two legislations, the Act of 2000 is
to prevail on the strength of legal maxim generalia
specialibus non derogant, which means special provisions
will control general provisions.
This legal maxim is
ordinarily attracted where there is a conflict between a
special and a general statute and an argument of implied
repeal is raised. Hon'ble Apex Court in a recent judgment
in case of Commercial Taxes Officer Vs. Binani Cement &
Anr. [(2014) 8 SCC 319] has laid down the criteria for
[17]
determining whether statute is a special or general one.
Relying on some of the earlier decisions, the Court held:
In Gobind Sugar Mills Ltd. v. State of
Bihar (1999) 7 SCC 76 this Court has
observed that while determining the question
whether a statute is a general or a special
one, focus must be on the principal subject-
matter coupled with a particular perspective
with reference to the intendment of the Act.
With this basic principle in mind, the
provisions must be examined to find out
whether
it
is
possible
to
construe
harmoniously the two provisions. If it is not
possible then an effort will have to be made
to ascertain whether the legislature had
intended to accord a special treatment vis-à-
vis the general entries and a further
endeavour will have to be made to find out
whether the specific provision excludes the
applicability of the general ones. Once we
come to the conclusion that intention of the
legislation is to exclude the general provision
then the rule "general provision should yield
to special provision" is squarely attracted.
Having noticed the aforesaid, it could
be concluded that the rule of statutory
construction that the specific governs the
general is not an absolute rule but is merely
a strong indication of statutory meaning that
can be overcome by textual indications that
point in the other direction. This rule is
particularly applicable where the legislature
has enacted comprehensive scheme and has
deliberately targeted specific problems with
specific solutions. A subject specific provision
relating
to
a
specific,
defined
and
descriptable subject is regarded as an
exception to and would prevail over a
general provision relating to a broad subject.
As such, the interpretation of the legal maxim
generalia specialibus non derogant has persuaded me to
[18]
believe that the Act of 2000 has impliedly amended the
conflicting provisions of the Act of 1956 rather than
repealing it.
It goes without saying that the general
prohibition of the Act of 1956 remains in force; the latter
Act i.e. Act of 2000 simply creates an exception in case of
abandoned children or children in destitute.
Therefore, on examining the matter in its
entirety, I am in total agreement with the judgment of
Bombay High Court in Re: Adoption of Payal @ Sharinee
Vinay Pathak & Anr. (Supra) and as such, in my opinion,
the impugned order passed by learned Court below
cannot be sustained and the same is hereby quashed and
set aside.
The application submitted by the appellant
before the learned Court below is therefore allowed and it
is hereby declared that the appellant is the adoptive
parent of child Priti (Registration No.92427) with all the
rights, privileges, responsibilities and consequences under
the law.
The appellant is expected to take utmost care
about the welfare of child Priti, and the proforma
respondent should also make endeavor to see that child
[19]
is brought up in a profound and healthy atmosphere
congenial for her rehabilitation and social reintegration.
The appeal is accordingly allowed, as indicated
supra.
(P.K. LOHRA), J.
arora/
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