In re Adoption of Payal @ Sharinee Vinay Pathak (2010)

Unit 3 asks what the Constitution and the international instruments say about the child, and then asks what follows from them. This judgment is the clearest worked example on the paper of the two being used together to decide a live question, and it supplies the proposition that ties the unit to the rest of the syllabus: adoption is a facet of the right to life under Art. 21, and the right specially protected is the right of children in need of special care and protection.

It is also the case that shows what it means to call a children's statute secular and beneficial. The Juvenile Justice Act is addressed to the condition of the child — orphaned, abandoned or surrendered — and not to the religion of the child or of the adopting parents; poverty, as the judgment puts it, has no religion.

The petitioners, a married couple professing the Hindu religion, already had a biological daughter. They had obtained guardianship under the Guardians and Wards Act 1890 of a minor child of the same sex, a child who answered the description of a child in need of care and protection under s. 2(d) and of a surrendered child under s. 41(2) of the Juvenile Justice Act, and who was legally free for adoption. The child had already been with them for more than four years, and both children were at school.

The obstacle was the Hindu Adoptions and Maintenance Act 1956, whose conditions forbid the adoption of a daughter where the adoptive father or mother already has a Hindu daughter, or a son's daughter, living at the time of adoption; the corresponding condition for a son is stricter still. The Juvenile Justice Act contains no such restriction and allows a child to be given in adoption to parents of a child of the same sex irrespective of the number of living biological sons or daughters.

The question was therefore whether a Hindu couple with a child of their own may adopt a child of the same gender under the Juvenile Justice Act.

1. They may. Where the child sought to be adopted is an orphaned, abandoned or surrendered child within s. 41(2), or a child in need of care and protection under s. 2(d), the provisions of the Juvenile Justice Act apply, and the restrictive condition of the 1956 Act does not stand in the way. The two Acts are to be harmoniously construed; so far as they conflict, the Juvenile Justice Act, a special enactment dealing with a limited and defined class of children, is best viewed as impliedly amending the general law of adoption on that point.
2. The order of guardianship already obtained did not destroy the petitioners' entitlement to adopt, the substance and effect of the statutory procedure having been complied with, and it was manifestly in the interest and welfare of the child that the adoption be allowed. The petitioners were declared the adoptive parents with all the rights, privileges, responsibilities and consequences under the law.

1. Start from the constitutional provisions on the child. Art. 15(3) empowers special provision for women and children. Art. 39(e) directs that the tender age of children not be abused, and Art. 39(f) that children be given opportunities and facilities to develop in a healthy manner, in conditions of freedom and dignity, childhood and youth being protected against exploitation and against moral and material abandonment. Art. 45 concerns early childhood care and education up to the age of six, Art. 47 the raising of nutrition levels, and Art. 51A the parent's or guardian's duty to provide opportunities for education between six and fourteen. These are a composite part of a constitutional ethos in which the freedom and dignity of the young count above all.

1. Add the Convention. India ratified the Convention on the Rights of the Child on 11 December 1992. Art. 3 requires that in all actions concerning children — by public or private welfare institutions, courts, administrative authorities or legislative bodies — the best interests of the child shall be a primary consideration. Art. 20 entitles a child deprived of his or her family environment to special protection and assistance from the State, which may include foster placement and adoption. Art. 21 requires that a system of adoption ensure that the best interests of the child are the paramount consideration.

1. Read the statute as the beneficial law it is. The Juvenile Justice Act was enacted to effectuate the constitutional provisions and to fulfil India's international obligations, providing alternatives for rehabilitation and social reintegration — adoption, foster care, sponsorship and after-care. Beneficial legislation must be construed liberally, and a children's statute has been held to be not merely beneficial but remedial, to be construed so as to make it effective and operative.

1. Resolve the conflict by subject matter. The 1956 Act lays down rules of general application for adoption by Hindus; the Juvenile Justice Act lays down specific rules for a defined class of destitute children, deliberately secular in character, and focuses on the condition of the child rather than the identity of the parties.

It opens any question on the constitutional and international protection of the child, because it puts Arts. 15(3), 39(e) and (f), 45, 47 and 51A and the CRC to work on one concrete issue rather than listing them. Use its Art. 21 proposition wherever the question asks whether children's rights are enforceable rights and not merely policy.

It disposes of the argument that the personal law of adoption governs a destitute child, and the argument that parents with a living child of the same sex are disqualified from adopting one.

It does not decide the general law of adoption for Hindus outside the class of orphaned, abandoned and surrendered children; the 1956 Act's conditions continue to govern an ordinary adoption between Hindus. Note also that this judgment was given on the Juvenile Justice Act as it stood in 2000 and as amended in 2006; the current Act is the Juvenile Justice (Care and Protection of Children) Act 2015. Cite the case for the constitutional and treaty reasoning, and take the section numbers of the present Act from the statute in force.