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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