Monday 18 December 2023

Bombay High Court Orders Stay On Transfer of Adoption Cases To District Magistrates.

  While considering interim relief, we must bear in mind the

primary objective which is the interest of the children and infants

who are to be adopted whether these are domestic or foreign

adoptions. The concerns of the adoptive parents are also involved.

In considering ad-interim relief, we have to bear in mind the

interests of the minors who are put up for adoption and the interests

of the adopted parents. Presently, the adoptions are being handled

by Single Judges of this Court. This has continued for a very long

period of time and nothing is shown to us to indicate why for a

limited period of time of about four weeks this should not be

continued until we finally hear the challenge. No prejudice will be

caused to any party if the existing system continues. On the

contrary, the primary interest would be protected. Moreover, we are

granting interim relief only until the next date and not indefinitely for a long period of time. We are not impressed by the arguments of delays for disposals because at least in this High Court, the the adoptions jurisdiction is one in which there is no backlog at all. Adjournments are almost never requested or ordered and disposals take place on a weekly basis. {Para 2}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION (L) 598 OF 2023

IN

WRIT PETITION NO. 32065 OF 2022

Aadil Ebrahim & Anr ...Applicant

In the mater between

Nisha Pradeep Pandya alias Nisha Amit Gor & Anr Vs Union of India & Ors 

CORAM G.S. Patel &

S.G. Dige, JJ.

DATED: 10th January 2023


1. The Writ Petition challenges the vires of the Juvenile Justice

(Care and Protection of Children) Amendment Act 2021 to the

extent that the word ‘Court’ is replaced with ‘District Magistrate’.


The effect of this amendment according to the Petitioners and the

Intervenors is that an exclusive jurisdiction over all adoptions

including foreign adoptions will now be with the District Magistrate.

Until now at least adoptions were with the judges of the High Court

and many of us have, while on the Bench, handled these cases. It is

not shown to us that there has been any complaint about the

handling of these cases. We have yet to see the justification for the

amendment. The matter has been pending since October 2022. We

are now told that there should be no stay on the implementation of

the amendment and that the Government will file its reply. We do

not think that the matters require to go through multiple cycles of

the same arguments.

2. While considering interim relief, we must bear in mind the

primary objective which is the interest of the children and infants

who are to be adopted whether these are domestic or foreign

adoptions. The concerns of the adoptive parents are also involved.

In considering ad-interim relief, we have to bear in mind the

interests of the minors who are put up for adoption and the interests

of the adopted parents. Presently, the adoptions are being handled

by Single Judges of this Court. This has continued for a very long

period of time and nothing is shown to us to indicate why for a

limited period of time of about four weeks this should not be

continued until we finally hear the challenge. No prejudice will be

caused to any party if the existing system continues. On the

contrary, the primary interest would be protected. Moreover, we are

granting interim relief only until the next date and not indefinitely

for a long period of time. We are not impressed by the arguments of

delays for disposals because at least in this High Court, the the

adoptions jurisdiction is one in which there is no backlog at all.

Adjournments are almost never requested or ordered and disposals

take place on a weekly basis.

3. We are also mindful of the fact that if the petitioners succeed,

any orders that are passed by the District Magistrate would be

immediately vulnerable.

4. Since there is a vires challenge, we issue notice to the

Attorney General. A copy is to be provided to the office of

Additional Solicitor.

5. The Interim Application is allowed in terms of prayer clause

(a).

6. The intervenor will be joined as respondents without need of

reverification. Service of the amended petition is not required.

7. All concerned are at liberty to put in brief notes of written

arguments along with properly indexed and paginated compilations

of authorities.

8. In the meantime, there will be an ad-interim order only until

the next dtae in terms of prayer clauses (d), (e) and (f ) of the

petition which reads as follows:

d. Pending the final hearing and disposal of the

present Petition, the Hon’ble Court may be pleased

to stay the effect, implementation and purport of

the letter dated 30th September, 2022 issued by

Respondent No.2;

e. Pending the final hearing and disposal of the

present Petition, the Hon’ble Court may be

pleased to direct the Respondents not to transfer

pending adoption matters before the District

Magistrates for adjudication.

f. Pending the final hearing and disposal of the

present Petition, the Hon’ble Court may be pleased

to direct the Hon’ble Courts to continue with the

adjudication of the adoption matters that are

pending on their record and file.

9. Additionally, the safer and more prudent course of action

would be to allow all matters to be placed before the learned Single

Judge of this Court who is assigned those matters. Those orders

may be continued to be passed until the challenge is finally decided.

10. The Petition will be listed peremptorily for final disposal on

14th February 2023 at 2.30 pm.

(S. G. Dige, J) (G. S. Patel, J)


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