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Hindu Couple Adoption Legal Case

Vinay Pathak and his wife, Hindus with a biological daughter, sought to adopt a female child surrendered to a nursing home four days after birth. The court appointed them guardians. They now seek a declaration of adoption with legal rights and responsibilities. The issue is whether Hindus with a living child of the same gender can adopt under the Juvenile Justice Act. The Act allows adoption irrespective of living biological children. If two acts conflict, the subsequent act prevails. The Juvenile Justice Act of 2000 allows adoption in this case, overriding the Hindu Adoption Act. The child was eligible for adoption as a surrendered child, and adoption procedures were followed.

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1K views2 pages

Hindu Couple Adoption Legal Case

Vinay Pathak and his wife, Hindus with a biological daughter, sought to adopt a female child surrendered to a nursing home four days after birth. The court appointed them guardians. They now seek a declaration of adoption with legal rights and responsibilities. The issue is whether Hindus with a living child of the same gender can adopt under the Juvenile Justice Act. The Act allows adoption irrespective of living biological children. If two acts conflict, the subsequent act prevails. The Juvenile Justice Act of 2000 allows adoption in this case, overriding the Hindu Adoption Act. The child was eligible for adoption as a surrendered child, and adoption procedures were followed.

Uploaded by

manika
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© © All Rights Reserved
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Vinay Pathak and his wife v.

Unknown

Facts:-

Petitioners (husband and wife), both Hindus and marriage and have their own daughter. The petitioner
in the court sought their appointment as the guardian of a female child who was born in 2004 and her
biological parents, four days after her birth, surrendered her to a nursing home. The court appointed
petitioners as the guardians of the child. The child lived with the Petitioners for over four years. A
petition is now being filed by them seeking a declaration that the Petitioners are the adoptive parents of
the child with consequential rights, privileges and responsibilities under the law.

Issue

The issue is whether a hindu couple governed by the Hindu adoption and maintenance act with their
own child can adopt the child of the same gender under the provision of JJ Act?

Rule:-

As per Hindu adoption Act one cannot adopt another child of the same gender but JJ act does not
incorporate such restrictive condition. The Act recognizes the right of parents to adopt
children irrespective of the number of living biological sons or daughters. The purpose of legislation is
rehabilitation.

Sub section (6) of Section 41 clearly says 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 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.

If there is conflict between the two acts the latter act should prevail, SC applied this principle in the
context of conflict between Companies Act and Institution Act in case Allahabad Bank v. Canara Bank it
was held that subsequent act will prevail.

In our case, 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.

Judgment:-
The child in question did fit the description of a child in need of care and protection under Section 2(d)
(v) of the Juvenile Justice Act, 2000 and of a surrendered child under sub section (2) of Section 41. The
Petitioners were eligible to adopt the child under the Juvenile Justice Act, 2000. The child was a
surrendered child and was legally free for adoption. The substance and effect of the procedures
prescribed under the Juvenile Justice (Care and Protection of Children) Act, 2000 have been complied
with.

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