Transfer Of Adoption Powers To District Magistrates Valid: Bombay High Court Upholds 2021 Juvenile Justice Act Amendment

 We have noted that though the Bombay High Court had granted stay to the transfer of pending adoption matters to the District Magistrate, by directing that ongoing cases shall continue in the Court, in other States the Amendment of 2021 has come into force and has yielded success. In light of the aforesaid discussion, since we do not find any merit and substance in the challenge raised by the Petitioners, both the Petitions stand dismissed. Pending Interim Applications also stand disposed of. At the same time, we vacate the interim order dated 10/01/2023 and permit the matters to be dealt with by the

District Magistrate. We must also clarify that in the interregnum the orders which are passed by the Court in adoption matters shall be treated as legally and validly passed. {Para 28}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1085 OF 2023

Nisha Pradeep Pandya alias Nisha Amit Gor & Anr.  V/S  Union of India & Ors.

CORAM : BHARATI DANGRE &

MANJUSHA DESHPANDE, JJ

DATE : 4th MAY 2026

JUDGMENT (PER BHARATI DANGRE, J) :

Citation: 2026:BHC-OS:11417-DB

Print Page

District Judge interview Prep: Judicial Oversight in Adoption of Child : What Every District Judge Should Know about HAMA and JJ Act?

 Question 1

Explain the current status of the Bombay High Court’s stay order on transferring adoption cases from courts to District Magistrates. How does it impact the jurisdiction of District Judges?

Answer:

The Bombay High Court issued an interim stay in January 2023 on the transfer of adoption cases from courts to District Magistrates under the Juvenile Justice (Care and Protection of Children) Amendment Act 2021. This stay remains effective as of 2025, preserving the jurisdiction of District Judges. Adoption proceedings continue before District Courts and High Courts, ensuring that the court-centric approach and judicial oversight remain intact.

Question 2

What is the scope of jurisdiction of the District Judge under the Hindu Adoption and Maintenance Act, 1956 (HAMA) for adoption within Hindu families?

Answer:

District Judges have jurisdiction primarily in adoption cases under HAMA where court approval is mandated by Section 9(4), which includes scenarios such as death or abandonment of the child’s parents. In typical family adoptions between Hindus, no court permission is needed, and the adoption can be effected by execution of a registered adoption deed complying with statutory requirements.

Question 3

Under HAMA, when is court permission mandatory for adoption? Cite relevant sections.

Answer:

Court permission is mandatory under Section 9(4) of HAMA if:

·       Both parents are dead, or

·       Both parents have renounced the world, or

·       Both parents have abandoned the child, or

·       Both parents have been declared of unsound mind by a competent court, or

·       The parentage of the child is unknown.

These exceptions require judicial sanction to ensure child protection.

Question 4

What role does the Central Adoption Resource Authority (CARA) play in adoption proceedings, and when is its permission required?

Answer:

CARA regulates institutional adoption under the Juvenile Justice Act. CARA’s permission is compulsory for adoptions involving orphaned, abandoned, or surrendered children placed through registered adoption agencies. However, CARA does not regulate interse family adoptions under HAMA, where parties need not seek CARA permission.

Question 5

Compare the procedural and jurisdictional differences between adoption under HAMA and the Juvenile Justice (Care and Protection of Children) Act, 2015.

Answer:

·       HAMA: Minimal court intervention limited to specified cases, no CARA involvement for family adoptions, focuses on Hindu families and traditional adoptions, registered adoption deed often sufficient.

·       Juvenile Justice Act: Mandatory court adoption orders for all institutional adoptions, CARA regulation compulsory, applies to all religions, strong institutional oversight.

Question 6

Discuss the difference between adoption orders under the Juvenile Justice Act and adoption deeds under HAMA.

Answer:

Under the Juvenile Justice Act, adoption requires a mandatory court order that legally validates the adoption. Under HAMA, for most family adoptions, a registered adoption deed suffices unless Section 9(4) conditions apply, when court approval becomes necessary.

Question 7

Distinguish institutional adoption and interse family adoption with reference to legal framework and procedure.

Answer:

·       Institutional adoption: Involves orphaned or abandoned children, processed through CARA-regulated agencies and requires court orders under the Juvenile Justice Act.

·       Interse family adoption: Adoption between relatives under HAMA without mandatory CARA involvement or court orders in normal cases, emphasizing family autonomy.

Question 8

Which statute governs the adoption of a brother’s child in a Hindu family and why?

Answer:

The Hindu Adoption and Maintenance Act, 1956 governs such adoption since it falls under interse family adoption within Hindu personal law. CARA and Juvenile Justice Act provisions do not apply in this family-specific context.

Question 9

Explain the principle of harmonious construction regarding HAMA and the Juvenile Justice Act adopted by courts.

Answer:

Courts hold that HAMA and the Juvenile Justice Act must be read harmoniously without conflict. Each statute governs distinct adoption scenarios—HAMA for family adoptions and JJ Act for institutional adoptions—ensuring complementary child welfare systems without jurisdictional conflicts.

Question 10

What procedural challenges arise from the Juvenile Justice Act amendments and Bombay High Court’s judicial intervention?

Answer:

Challenges include jurisdictional confusion between courts and District Magistrates, inconsistent procedural practices, and concerns regarding judicial oversight and constitutional separation of powers. The Bombay High Court’s stay safeguards court jurisdiction, ensuring procedural clarity.

Question 11

As a District Judge, how would you adjudicate an adoption petition of a relative’s child under HAMA? What documentation is required?

Answer:

Check whether Section 9(4) applies requiring court approval. Verify statutory compliance, family relationship proof, consents, and ensure execution and registration of the adoption deed if no court order is needed.

Question 12

How does the Juvenile Justice Act extend adoption rights beyond religious boundaries compared to HAMA?

Answer:

The JJ Act applies universally to all religions and runs a secular adoption framework. HAMA applies solely to Hindus, Buddhists, Sikhs, and Jains and does not extend adoption rights beyond these communities.

Question 13

Define the age limits for adoptable children under HAMA and the Juvenile Justice Act and explain the differences.

Answer:

HAMA generally limits adoption to children under 15 years (with some customary exceptions). The Juvenile Justice Act extends eligibility to children under 18, providing a broader protective framework.

Question 14

How would you maintain procedural consistency and child welfare standards when handling adoption cases under both HAMA and the Juvenile Justice Act?

Answer:

Ensure statutory compliance per each Act. For HAMA, verify family-based procedural correctness and deed registration. For JJ Act, confirm CARA involvement and court adoption orders. Always prioritize the child's welfare and legal safeguards.

Print Page

Supreme Court: Under which circumstances, adoption of child is not proved even though it was through registered adoption deed?

  Adoption Deed was registered, the presumption under Section 16 of the Act of 1956 attached to it and it was for Defendant No.1 to rebut that presumption. We find that he did so more than sufficiently. Mere registration of Adoption Deed did not absolve the person asserting such adoption from proving that fact by cogent evidence and the person contesting it from adducing evidence to the contrary. It is in this respect that various suspicious circumstances attached to the adoption ceremony assume significance. While so, Plaintiff witness, himself, stated that she did not invite any of her relations to attend the adoption ceremony. Normally, such occasions would not be kept secret or confidential as an adoption would usually be made with much pomp and celebration. The clandestine manner in which the alleged adoption is stated to have taken place raises a doubt but the same has not been adequately explained. Further, no evidence was adduced to prove that relations between owner and defendant no.1, her grandson, had fallen out. The document also did not record any reasons as to why owner was not happy with Defendant No.1, whose marriage she had performed a few months earlier.[Para 46]

50. The actual giving and taking of the child in adoption, being an essential requisite under Section 11(vi) of the Act of 1956, there was no convincing evidence of that act also in the case on hand. Interestingly, there were no pictures of the actual giving and taking of the child in adoption. The purohit was seen standing or sitting behind the others and the same could not be taken to be during the ceremony of giving and taking, as he would have stood/sat in front of them, chanting mantras and incantations as per shastras. Further, there were no photographs of the datta homam, though purohit claimed that he had performed the same. Even though it was no longer considered an essential ceremony, it was of significance when performed, and would have been captured for posterity by taking pictures. Strangely, though a professional photographer was stated to have been engaged for the purpose of taking pictures at the adoption ceremony, he took only three photographs and no more. This parsimony was not explained. Further, Plaintiff witness producing and marking receipt, supposedly issued by photographer to the temple, with no explanation as to how it came into her possession, also did not inspire confidence.

55. The adoption of Appellant-Plaintiff by deceased-owner was not proved in accordance with law despite the registration of Adoption Deed. The very adoption, itself, was not believable, given the multitude of suspicious circumstances surrounding it. The Appellant could not, therefore, be treated as her heir by adoption. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2435 of 2010

Decided On: 20.11.2023

Moturu Nalini Kanth Vs. Gainedi Kaliprasad (Dead) through L.Rs.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Citation:  MANU/SC/1240/2023.

Read full Judgment here: Click here.

Print Page

Supreme Court: How to prove execution of will as per Section 69 of the Indian Evidence Act, 1872?

 For the purposes of Section 69 of the Evidence Act, it is not enough to merely examine a random witness who asserts that he saw the attesting witness affix his signature in the Will. The very purpose and objective of insisting upon examination of at least one attesting witness to the Will would be entirely lost if such requirement is whittled down to just having a stray witness depose that he saw the attesting witness sign the Will. The evidence of the scribe of the disputed Will (PW 6) also casts a doubt on the identity of the executant as he specifically stated that a woman was sitting at a distance but he could not tell whether she was Venkubayamma and he could not also tell whether Venkubayamma had signed the document. In effect, Ex. A10 Will was not proved in accordance with law and it can have no legal consequence. Nalini Kanth's claim of absolute right and title over Venkubayamma's properties on the strength thereof has, therefore, no legs to stand upon and is liable to be rejected.

{Para 32}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2435 of 2010

Decided On: 20.11.2023

Moturu Nalini Kanth Vs. Gainedi Kaliprasad (Dead) through L.Rs.

Hon'ble Judges/Coram:

C.T. Ravikumar and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation:  MANU/SC/1240/2023.

Print Page

Legal Consequences of Adoption of child : Inheritance Rights in the Natural and Adoptive Families

Under Indian law, an adopted child cannot claim a share in the property of their natural (biological) parents after adoption. The adoption legally severs all ties with the biological family regarding inheritance rights. Section 12 of the Hindu Adoptions and Maintenance Act, 1956 (HAMA) clearly states that "all ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family".

Print Page

Checklist for Judges of necessary pre- requisite for passing order of adoption of child as per provisions of Hindu adoption and maintenance Act

Based on the provisions of the Hindu Adoption and Maintenance Act, 1956, here is a comprehensive checklist of prerequisites for passing an order of adoption of a child:

Legal Capacity Requirements

For Adoptive Parents (Sections 7 & 8)

Male Hindu Adoptive Parent:

·       [ ] Must be Hindu by religion

·       [ ] Must be of sound mind (not mentally ill)

·       [ ] Must not be a minor (must be of legal age)

·       [ ] If married, must have wife's consent for adoption

·       [ ] If adopting a daughter, must be at least 21 years older than the child.

Print Page

Supreme Court: Adoption By Widow Would Relate Back To Date Of Husband's Death, gift deed executed by widow will be held null and void

 It is the said finding of the trial Court that was set aside by the High Court in the first appeal with respect to the alienation under the gift deed dated 27.08.2008. A careful scanning of the impugned common judgment of the High Court would reveal that the sound reasoning of the trial Court in regard to this issue was interfered with and set aside without detailed discussion and at the same time without providing any good and sustainable reason therefor. It appears that the High Court was carried away by the fact that the gift deed is a registered one. We have already taken note of the fact that in order to be valid, acceptance of the gift is a pre-requisite. When the very case of one of the donees of the gift viz., the Defendant No. 4 that the property was in the possession of the donor herself till her death itself would reveal that the properties were not delivered and in other words in the legal sense there was no acceptance. The fact that Defendant No. 4 himself depose before the Court that he was not aware of the fact as to in whose possession the gifted properties lie with, would justify the conclusions arrived at by the trial Court. True that the First Appellate Court will be having the power to reappreciate the entire evidence and to substitute any finding of the trial Court if it is legally required. At the same time, when once it is found that a sound reasoning given by a trial Court for returning a finding with respect to a definite issue the same cannot be likely interfered without giving appropriate sustainable reasons. The position with respect to the gift deed is discussed in detail by the trial Court and when it arrived at the conclusion that the pre-requisite for making the same valid was absent such a finding could be reversed only if it is found that the said finding was based on perverse precision of evidence. In the case on hand, the discussion as above would reveal that the pre-requisite to constitute a valid gift is lacking and the evidence discussed by the trial Court would support the said finding we do not find any reason for the Appellate Court to interfere with the same. The declaration that gift deed dated 27.08.2008 is null and void is made by the trial Court in the aforesaid circumstances and it is only as a necessary sequel that the trial Court held that the Appellant/Plaintiff is entitled to entire 'B' and 'C' Schedule properties as the sole legal heir of deceased Defendant No. 1. As noted hereinbefore, DW-1 herself in her written statement admitted the adoption of the Appellant/Plaintiff as her son and the registered adoption deed could fortify the same. When that be so the finding that the Appellant is entitled to the said properties being the sole legal heir of deceased Defendant No. 1 cannot be said to be faulty as it is the inevitable consequence of application for the 'Doctrine of Relation Back' and the ratio of the decisions in Kasabai Tukaram Karvar's case (supra) and Sripad Gajanan Suthankar's case (supra).{Para 29}

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 36-37 of 2025.

Decided On: 02.01.2025

Mahesh Vs. Sangram and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Prashant Kumar Mishra, JJ.

Author: C.T. Ravikumar, J.

Read full Judgment here: Click here.

Print Page

Supreme Court: Sale Deed Executed After Adoption By Mother For Pre-Adoption Property Binding On Adopted Child

 Obviously, in the case on hand, the factum of adoption of the Appellant/the Plaintiff by Defendant No. 1 after the death of adoptive father, on 16.07.1994 is established by the Appellant/the Plaintiff and it is pertinent to note that the same was admitted by Defendant No. 1 as well, in her written statement. In such circumstances, in view of the 'Doctrine of Relation Back' and by applying the law laid down in Sripad Gajanan Suthankar's case (supra) relied on with agreement in Kasabai Tukaram Karvar's case (supra) the adoption by Defendant No. 1, the widow of Bhavakanna Shahpurkar, would relate back to the date of death of the adoptive father which is 04.03.1982 but then all lawful alienations made by Defendant No. 1 would be binding on the Appellant/Plaintiff. As held in Sripad Gajanan Suthankar's case (supra) in paragraph 11 his right to impeach previous alienations would depend upon the capacity of Defendant No. 1 who made the alienation as well as on the nature of the action of alienation. {Para 22}

23. The first among the alienations under challenge in the case on hand is the one where Defendant No. 1 effected sale of the properties covered by registered sale deed dated 13.12.2007 in respect of 'A' Schedule property in favour of Defendant Nos. 2 and 3. There is concurrency with respect to the said issue between the trial Court and the High Court. The Courts have held that Defendant No. 1 got absolute right to effect the sale of the property covered thereunder and that the sale was done in favour of Defendant Nos. 2 and 3 in accordance with the law. Admittedly, in regard to the sale, Defendant No. 1 executed the sale deed dated 13.12.2007 and she was not having a case that she had not received sale consideration. By applying the 'Doctrine of Relation Back' and the ratio of decisions in Kasabai Tukaram Karvar's case (supra) and Sripad Gajanan Suthankar's case (supra) it can only be held that the Appellant/Plaintiff is bound by the said alienation. This is because of the cumulative effect of the compromise decree in OS No. 122 of 2009 followed by Ext.D14 and the allotment of share based on the same. In this context it is also relevant to note that the factum of execution of the sale deed is not disputed by the Appellant but his contention is only that Defendant No. 1 could not have sold the property without his consent and knowledge. Though the alienation was subsequent to his adoption by virtue of the fact that Defendant No. 1 got absolute right and title in regard to the property covered by the said sale deed dated 13.12.2007 and that a valid sale was effected following the procedures, the challenge of the Appellant against the said alienation of property by Defendant No. 1 in favour of Defendant Nos. 2 and 3 is not liable to be interfered with. We have no hesitation to hold that the concurrent findings of the trial Court and the High Court in regard to the said sale deed warrant no interference. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 36-37 of 2025.

Decided On: 02.01.2025

Mahesh Vs. Sangram and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Prashant Kumar Mishra, JJ.

Author: C.T. Ravikumar, J.

Print Page

Navigating the Adoption Process in India: Legal Framework and Procedures

 Adoption in India is governed by a complex legal framework primarily consisting of the Hindu Adoption and Maintenance Act, 1956 (HAMA) and the Juvenile Justice (Care and Protection of Children) Act, 2015. These laws outline the eligibility criteria for both adoptive parents and children, as well as the procedural requirements for a valid adoption.

Legal Framework

Hindu Adoption and Maintenance Act, 1956 (HAMA)

- Eligibility to Adopt: Under HAMA, any male Hindu who is of sound mind and not a minor can adopt a child, provided that he has the consent of his living wife unless she has been declared incompetent by a court. Female Hindus can adopt if they are unmarried, widowed, or divorced.

Print Page

What basic principles the court should follow while deciding child custody dispute?

Principles governing custody of minor children

53. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict Rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.

55. We are unable to appreciate the approach of the Courts below. This Court in catena of decisions has held that the controlling consideration governing the custody of children is the welfare of children and not the right of their parents.

[Emphasis supplied]

14. This Court has consistently held that welfare of the child is of paramount consideration and not personal law and statute. In Ashish Ranjan v. Anupam Tandon and Anr. MANU/SC/1013/2010 : 2010:INSC:836 : (2010) 14 SCC 274, this Court held as under:

19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.

16. Another principle of law which is settled with reference to custody of the child is the wish of the child, if she is capable of. Reference can be made to Rohith Thammana Gowda v. State of Karnataka and ors.' case (supra). It was held as under:

13. We have stated earlier that the question 'what is the wish/desire of the child' can be ascertained through interaction, but then, the question as to 'what would be the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1345 of 2024.

Decided On: 04.03.2024

Shazia Aman Khan and Ors. Vs. The State of Orissa and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J.

Citation:- MANU/SC/0160/2024.

Print Page

Important highlights of SC Judgment Supriyo @ Supriya Chakraborty & Anr. v. Union of India (2023 INSC 920)

 1. No Fundamental Right To Marry.

The Supreme Court unanimously held that there was not fundamental, unequivocal right to marry in India.

2. On Striking Down The Special Marriage Act & Allied Laws

Another point on which the entire bench agreed was to not strike or read the Special Marriage Act (SMA) and its allied laws down.

3. On Rights Of Transgender Persons To Marry

Print Page

Supreme Court: Child Adopted By Widow After Death Of Govt. Employee Not Entitled To Family Pension

 It may also be appropriate to refer to the decision of this Court in Poonamal v. Union of India, MANU/SC/0359/1985 : (1985) 3 SCC 345, wherein the purpose for which 'family pension' is granted, was highlighted by this Court in the following words:

Family pension came to be conceptualised in the year 1950. When a Government servant die in harness or soon after retirement, in the traditional Indian family on the death of the only earning member, the widow or the minor children were not only rendered orphans but faced more often destitution and starvation. Traditionally speaking the widow was hardly in a position to obtain gainful employment. She suffered the most in as much as she was deprived of the companionship of the husband and also became economically orphaned. As a measure of socioeconomic justice family pension scheme was devise to help the widows tie over the crisis and till the minor children attain majority to extend them some succour. This appeared to be the underlying motivation in devising the family pension scheme. It was liberalised from time to time. {Para 12}

It is evident from the passage quoted above that family pension was devised as a means to help the dependents of the deceased government servant tide over the crisis and to extend to them some succour. Therefore, the definition of the term 'family' cannot be extended to include those persons who were not even dependents of the government servant, at the time of his death.

12.1.  In the present case, the heirs listed Under Rule 54(14)(b) of the CCS (Pension) Rules are the immediate dependents of the deceased government servant. Therefore, persons who were not dependant on the government servant prior to his death cannot be held to be included in the definition of 'family' Under Rule 54(14)(b) of the CCS (Pension) Rules.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 386 of 2023 

Decided On: 17.01.2023

Ram Shridhar Chimurkar Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

K.M. Joseph and B.V. Nagarathna, JJ.

Author: B.V. Nagarathna, J.

Citation: MANU/SC/0041/2023.

Print Page

Case Note: Supriyo @ Supriya Chakraborty & Anr. v. Union of India (2023 INSC 920)

Findings of the court

Dr. D.Y. Chandrachud, C.J.I.

(i) The following were conclusions of this court:

a. This Court was vested with the authority to hear this case. Under Article 32, this Court had the power to issue directions, orders, or writs for the enforcement of the rights in Part III.

b. Queerness is a natural phenomenon known to India since ancient times. It was not urban or elite. c. There was no universal conception of the institution of marriage, nor is it static. under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage d. Marriage has attained significance as a legal institution largely because of Regulation by the state. By recognizing a relationship in the form of marriage, the state grants material benefits exclusive to marriage e. The State has an interest in regulating the intimate zone to democratize personal relationship f. The issue of whether the Constitution recognizes the right to marry did not arise before this Court in Justice KS Puttaswamy, Shafin Jahan, and Shakti Vahini

g. The Constitution does not expressly recognize a fundamental right to marry. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law. However, several facets of the marital relationship are reflections of constitutional values including the right to human dignity and the right to life and personal liberty

h. This Court could not either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations. This Court could not read words into the provisions of the SMA and provisions of other allied laws such as the ISA and the HSA because that would amount to judicial legislation. The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain

i. The freedom of all persons including queer couples to enter into a union is protected by Part III of the Constitution. The failure of the state to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime. The state has an obligation to recognize such unions and grant them benefit under law

j. In Article 15(1), the word sex must be read to include sexual orientation not only because of the causal relationship between homophobia and sexism but also because the word sex is used as a marker of identity which cannot be read independent of the social and historical context

k. The right to enter into a union could not be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom was available to all persons regardless of gender identity or sexual orientation

l. The decisions in Navtej and Justice KS Puttaswamy recognize the right of queer couples to exercise the choice to enter into a union. This relationship is protected from external threat. Discrimination on the basis of sexual orientation will violate Article 15

m. Transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage

n. Intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage

o. The state must enable the LGBTQ community to exercise its rights under the Constitution. Queer persons have the right to freedom from coercion from their natal families, agencies of the state including the police, and other persons

p. Unmarried couples (including queer couples) can jointly adopt a child. Regulation 5(3) of the Adoption Regulations was ultra vires the JJ Act, Articles 14, and 15. Regulation 5(3) was read down to exclude the word marital. The reference to a couple in Regulation 5 includes both married and unmarried couples as well as queer couples. The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together was equally applicable to unmarried couples who seek to jointly adopt a child. However, while framing Regulations, the state may impose conditions which will subserve the best interest and welfare of the child in terms of the exposition in the judgment

q. The CARA Circular disproportionately impacts the queer community and was violative of Article 15 r. The Union Government, State Governments, and Governments of Union Territories shall not discriminate against the freedom of queer persons to enter into union with benefits under law and s. This court record the assurance of the Solicitor General that the Union Government will constitute a Committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who were in unions. The Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community as well as members of the queer community. The Committee shall before finalizing its decisions conduct wide stakeholder consultation amongst persons belonging to the queer community, including persons belonging to marginalized groups and with the governments of the States and Union Territories The Committee shall in terms of the exposition in this judgment consider the following: (1). Enabling partners in a queer relationship (i) to be treated as a part of the same family for the purposes of a ration card; and (ii) to have the facility of a joint bank account with the option to name the partner as a nominee, in case of death (2). In terms of the decision in Common Cause v. Union of India, as modified by Common Cause v. Union of India, medical practitioners have a duty to consult family or next of kin or next friend, in the event patients who are terminally ill have not executed an Advance Directive. Parties in a union may be considered family for this purpose iii. Jail visitation rights and the right to access the body of the deceased partner and arrange the last rites and iv. Legal consequences such as succession rights, maintenance, financial benefits such as under the Income Tax Act 1961, rights flowing from employment such as gratuity and family pension and insurance.

The report of the Committee chaired by the Cabinet Secretary shall be implemented at the administrative level by the Union Government and the governments of the States and Union Territories. [340]

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 1011 of 2022, Writ Petition (Civil) No. 93 of 2023,

Decided On: 17.10.2023

Supriyo and Ors. Vs. Union of India (UOI)

Hon'ble Judges/Coram: Dr. D.Y. Chandrachud, C.J.I., Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and Pamidighantam Sri Narasimha, JJ.

Citation: MANU/SC/1155/2023,2023/INSC/920.

Print Page

What are essentials of valid adoption of child as per provisions of Hindu adoption and maintenance Act?

 S 6 of Hindu Adoption and maintenance Act:- Requisites of a valid adoption.—No adoption shall be valid unless—

(i) the person adopting has the capacity, and also the right, to take in adoption;

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.

Print Page

Important provisions of Hindu Adoptions and Maintenance Act, 1956 regarding adoption of child

 3. Definitions.—In this Act unless the context otherwise requires—

(c) “minor” means a person who has not completed his or her age of eighteen years.

4. Overriding effect of Act.

5. Adoptions to be regulated by this Chapter.—(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.

(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.

Print Page

Under which circumstances the court must relegate parties to adoption petition to substantive suit?

  The civil court rejected the petition on two grounds firstly that the biological parents have taken objection for giving the child in adoption and secondly that adoption deed is not registered as per Section 16 of HAMA. As regards the rejection on the ground of absence of consent is concerned, as indicated above, the proper course would have been to relegate the parties to the remedy of substantive suit. In face of the objection raised by the biological parents, the issue could not be decided in summary manner as decided by the Civil Court in the Adoption Petition. The inquiry contemplated under the provisions of HAMA as regards the actual giving and taking of the child in adoption with the intent of transferring the child from the family of the biological parents to the family of adoptive parents was not conducted in the proceedings of Adoption Petition No 189 of 2021. The biological parents have disputed that the adoptive parents were present at the time of execution of the Deed of Adoption and it is their contention that the child was handed over to Ms. Julia of AHAM Foundation. Clause (vi) of section 11 of HAMA emphasizes give and take of child with intent to transfer the child from one family to another. The intention will have to be gathered from the conduct of parties at the time of actual give and take of the child which can be only conclusively proved after the evidence in that behalf has been led. In wake of the dispute being raised as regards the actual giving and taking of the child with intent to transfer the child from one family to another, evidence was required to be led.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

Read full Judgment here: Click here.

Print Page

Whether the court can entertain miscellaneous application after disposal of main petition?

  The adoption petition was disposed of on 16th March, 2022 and Misc. Application was filed on 18th August, 2022. The provisions of Order 20 Rule 3 of Code of Civil Procedure (CPC) provides that the judgment once signed shall not afterwards be altered or added to save as provided by Section 152 or on review. I find considerable force in the submission of learned counsel for Petitioner that once the adoption petition was disposed of by order dated 16th March, 2022, the City Civil Court became functus officio and could not have entertained Misc Application No.137 of 2022. Pertinently at the time of passing of the order dated 8th March, 2023 in Misc. Application No.137 of 2022, the same Court was seized of Short Cause Suit No.2830 of 2022 and passed the order in Notice of Motion No.4791 of 2022 on the same day. In spite of being functus officio, the City Civil Court has, on the basis of arguments and documents, decided the miscellaneous application and vide order dated 8th March, 2023 directed the custody to be handed over to the respondents herein which cannot be sustained. {Para 38}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

Read full Judgment here: Click here.

Print Page

Whether government circular have overriding effect over statutory provisions?

  As regards the Government Circulars relied upon by learned counsel for the respondents, the circular dated 15th May, 2015 provides that as regards non institutional adoptions, registered adoption deed is enough and there is no need to produce adoption order of a court for such cases. The circular dated 31st January, 2018 the same is in respect of adoptions through institutions. A reading of the said circulars cannot be interpreted to mean that the adoption deed is required to be mandatorily registered. In any case the government circulars cannot override the statutory provisions and the circulars have been issued to facilitate the registration of births and issuance of birth certificate in respect of adopted child. {Para 39}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

Read full Judgment here: Click here.

Print Page

Whether it is mandatory to register adoption deed?

 The civil court rejected the petition on two grounds firstly that the biological parents have taken objection for giving the child in adoption and secondly that adoption deed is not registered as per Section 16 of HAMA. As regards the rejection on the ground of absence of consent is concerned, as indicated above, the proper course would have been to relegate the parties to the remedy of substantive suit. This was not done and the petition was rejected. The second ground was that the adoption deed was not registered. In that context if we peruse Section 16 of HAMA, it raises a statutory presumption as to registered documents relating to adoption provided that the condition precedent is satisfied and cannot be interpreted to mean that the adoption deed is required to be registered. In that context if we peruse the provisions of Section 17 of Indian Registration Act, 1908, the deed of adoption does not find mention in the documents required to be compulsorily registered.  The provisions of HAMA do not require a document to be registered, however, there is a statutory presumption which arises in respect of the registered document relating to adoption. In the present case, as the deed of adoption is not registered, the condition precedent for statutory presumption to be raised is not satisfied and as such without evidence being led, there can be no presumption relating to adoption as regards the unregistered deed of adoption. 

{Para 32}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

Print Page