Indian Association For Promotion ... vs Unknown on 13 January, 2012
Bench: D.G. Karnik
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION FOREIGN ADOPTION PETITION NO. 1 OF 2012 WITH
JUDGE'S ORDER NO. 2 OF 2012
Indian Association for Promotion of
Adoption & Child Welfare .. Petitioner And
1) Christopher Drury
2) Shenaz Drury .. Proposed Adopters
CORAM: D.G. KARNIK, J
DATED : 13TH JANUARY 2012
1. Heard.
2. A short question that requires consideration in this petition is: Whether a couple, who already has adopted one girl child, is entitled to adopt another girl child under the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short "Juvenile Justice Act")?
3. The bare facts necessary for decision are given below:
The petitioner is an Indian placement agency recognised by C.A.R.A. It has applied for permission to give a female minor "Tanishka" in adoption to the proposed adoptive parents. The proposed adoptive father is a person of Indian origin and holds a PIO Card bearing No. P 0186803. The proposed adoptive mother is an Overseas Citizen of India registered under no.A137572 at London on 14th June 2007. The proposed adoptive parents have already adopted one female child in the year 2008 from India (Foreign Adoption Petition No. 11 of 2008, allowed on 13th February 2008). They now want to adopt a second female child.
4. Sub-section (6) of section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short "the Juvenile Justice Act") reads as under: "41. Adoption.-
(1) ...
(2) ...
(3) ...
(4) ...
(5) ...
(6) The Court may allow a child to be given 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 or daughters; or
(c) to childless couples."
Clause (b) of sub-section (6) of section 41 of the Juvenile Justice Act permits parents to adopt a child of the same sex irrespective of number of living biological sons or daughters. It does not however expressly permit parents to adopt a child of the same sex irrespective of number of living adoptive children (sons or daughters) of the same sex.
5. In my view clause (b) of sub-section (6) of section 41 of the Juvenile Justice Act is permissive and not restrictive. It permits parents to adopt a child of the same sex even if they have a living biological child of the same sex. It is often thought that a subtle differentiation may be made by the parents between a biological child and an adoptive child of the same sex. The legislature has therefore expressly permitted adoption of a child of the same sex even if the parents have a biological child or children of the same sex living on the date of adoption. Section 6(b) or any other provision of the Juvenile Justice Act does not prevent adoption of a child where the adoptive parents have another living adopted child of the same sex. Though this issue has not been specifically considered, there are precedents where this Court has allowed adoption of a child even if the proposed adoptive parents, or person in case of an adoption by an individual, already have a living adopted child of the same sex. In Indian Adoption Petition No. 70 of 2009 (decided on 13th January 2010, Coram: V.M. Kanade, J.), this Court permitted an adoptive mother to adopt a female child though she already had a living adopted daughter. Similarly in Foreign Adoption Petition No. 44 of 2011 (Coram: Smt. R.S. Dalvi, J.), by an order dated 10th August 2011 this Court permitted adoption of a female child by a couple though the couple already had another living adopted daughter.
6. I, therefore, hold that the adoptive parents are entitled to adopt a child of the same sex irrespective of the fact that they already have a living adoptive child of the same sex.
7. In the present case, the biological mother of Tanishka has executed a surrender deed which is at page 26-M of the petition. The Child Welfare Committee by its order dated 9th April 2010 has declared Tanishka to be free for adoption.
8. The medical report of Tanishka shows an abnormality in her heart. The adoptive parents, who are present before me, have inspected the medical reports and are aware of the abnormality and yet have decided to adopt her. Home Study Report of the proposed adoptive parents is at page 51 of the petition. The proposed adoptive parents had visited India in May 2011 and had spent one week with Tanishka. They have again come to India on 10th January 2012 and have spent a week with her.
9. The adoptive parents have produced for for my inspection a demand draft bearing no. 383640 dated 11th 6 FAP 1/2012
January 2012 drawn on Hong Kong & Shanghai Banking Corporation in favour of Prothonotary & Senior Master, High Court, Bombay towards security. The draft shall be deposited with the Prothonotary & Senior Master who shall invest the amount in a nationalised bank till Tanishka attains majority.
10. In my view, the material on record is adequate to conclude that it is in the interest of minor Tanishka to grant permission for her adoption.
11. For these reasons, I allow the petition in terms of prayer clauses (a), (b) and (c). Accordingly, I have signed the Judge's Order prepared separately. This order shall from part of the Judge's Order.
(D.G.KARNIK, J.)
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