Irrespective of their religious background,
people are free to adopt children, the Supreme Court ruled today paving
the way for adoption of child by persons hailing from Muslim community
even though it is not allowed under their personal law. Holding that
Juvenile Justice (Care and Protection of Children) Act is a "small step"
towards the concept of Uniform Civil Code, the apex court held that the
law entitles adoption by people belonging to any religion and any
person, who does not submit himself to personal law, can adopt a child.
"To us, the Act is a small step in reaching the goal enshrined by
Article 44 of the Constitution(Uniform Civil Code). Personal beliefs and
faiths, though must be honoured, cannot dictate the operation of the
provisions of an enabling statute," a bench headed by Chief Justice P
Sathasivam said. The Act does not mandate any compulsive action by any
prospective parent leaving such person with the liberty of accessing the
provisions of the Act, if he so desires, the court said. "Such a
person is always free to adopt or choose not to do so and, instead,
follow what he comprehends to be the dictates of the personal law
applicable to him," the bench, also comprising justices Ranjan Gogoi and
Shiva Kriti Singh, said. The Bench said the Act is an enabling
legislation that gives a prospective parent the option of adopting an
eligible child by following due procedure. "At the cost of repetition
we would like to say that an optional legislation that does not contain
an unavoidable imperative cannot be stultified by principles of personal
law which, however, would always continue to govern any person who
chooses to so submit himself until such time that the vision of a
uniform Civil Code is achieved. "The same can only happen by the
collective decision of the generation(s) to come to sink conflicting
faiths and beliefs that are still active as on date," Justice Gogoi, who
wrote the judgement, said.
The apex court, however, turned down the plea for declaring right of a child to be adopted and right of a parent to adopt a fundamental right under the Constitution saying that such order cannot be passed at this stage in view of conflicting practices and beliefs. "While it is correct that the dimensions and perspectives of the meaning and content of fundamental rights are in a process of constant evolution as is bound to happen in a vibrant democracy where the mind is always free, elevation of the right to adopt or to be adopted to the status of a Fundamental Right, in our considered view, will have to await a dissipation of the conflicting thought processes in this sphere of practices and beliefs prevailing in the country," it said. The bench was hearing a PIL filed in 2005 by a social activist Shabnam Hashmi seeking court's direction to frame uniform guidelines for adoption of children in the country which is not recognised by Muslim Personal Law. During the pendency of the petition, the Centre amended the JJ Act in 2006 and the responsibility of giving in adoption was cast upon the Court and Central Adoption Resource Agency (CARA) which received statutory recognition. The Centre also notified the guidelines framed by CARA. According to government data, the number of reported adoptions in the country from January, 2013 to September, 2013 was 19,884 out of which 1,712 cases are of inter-country adoption. The Centre had informed the court that at the end of the calendar year 2013 Child Welfare Committees (CWC) were functioning in 619 districts and State Adoption Resource Agencies (SARA) have been set up in 26 States/Union Territories. It had said Adoption Recommendation Committees (ARCs) have been constituted in 18 States/Union Territories. The number of recognized adoption organisations in the country are 395.
The bench expressed concern over prevalence of conflicting view points among different communities on the issue of adoption coming in the way for formation of Uniform Civil Code. "Conflicting view points prevailing between different communities, as on date, on the subject makes the vision contemplated by Article 44 of the Constitution i.e. a Uniform Civil Code a goal yet to be fully reached and the court is reminded of the anxiety expressed by it earlier with regard to the necessity to maintain restraint. "All these impel us to take the view that the present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/or to understand such a right to be encompassed by Article 21 of the Constitution," the bench said. It also appreciated the decision taken by Parliament to enact the adoption law. "The legislature which is better equipped to comprehend the mental preparedness of the entire citizenry to think unitedly on the issue has expressed its view, for the present, by the enactment of the JJ Act 2000 and the same must receive due respect," it said. The apex court also noted that pursuant to the JJ Rules, 2007 and in exercise of the rule making power vested by the JJ Act, most of the states have followed suit and adopted the guidelines issued by CARA making the same applicable in the matter of adoption within the territorial boundaries of the state concerned. According to the Muslim Personal Law Board, Islamic law professes what is known as the 'Kafala' system under which the child is placed under a 'Kafil' who provides for the well being of the child including financial support and thus is legally allowed to take care of the child though the child remains the true descendant of his biological parents and not that of the adoptive parents.
The apex court, however, turned down the plea for declaring right of a child to be adopted and right of a parent to adopt a fundamental right under the Constitution saying that such order cannot be passed at this stage in view of conflicting practices and beliefs. "While it is correct that the dimensions and perspectives of the meaning and content of fundamental rights are in a process of constant evolution as is bound to happen in a vibrant democracy where the mind is always free, elevation of the right to adopt or to be adopted to the status of a Fundamental Right, in our considered view, will have to await a dissipation of the conflicting thought processes in this sphere of practices and beliefs prevailing in the country," it said. The bench was hearing a PIL filed in 2005 by a social activist Shabnam Hashmi seeking court's direction to frame uniform guidelines for adoption of children in the country which is not recognised by Muslim Personal Law. During the pendency of the petition, the Centre amended the JJ Act in 2006 and the responsibility of giving in adoption was cast upon the Court and Central Adoption Resource Agency (CARA) which received statutory recognition. The Centre also notified the guidelines framed by CARA. According to government data, the number of reported adoptions in the country from January, 2013 to September, 2013 was 19,884 out of which 1,712 cases are of inter-country adoption. The Centre had informed the court that at the end of the calendar year 2013 Child Welfare Committees (CWC) were functioning in 619 districts and State Adoption Resource Agencies (SARA) have been set up in 26 States/Union Territories. It had said Adoption Recommendation Committees (ARCs) have been constituted in 18 States/Union Territories. The number of recognized adoption organisations in the country are 395.
The bench expressed concern over prevalence of conflicting view points among different communities on the issue of adoption coming in the way for formation of Uniform Civil Code. "Conflicting view points prevailing between different communities, as on date, on the subject makes the vision contemplated by Article 44 of the Constitution i.e. a Uniform Civil Code a goal yet to be fully reached and the court is reminded of the anxiety expressed by it earlier with regard to the necessity to maintain restraint. "All these impel us to take the view that the present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/or to understand such a right to be encompassed by Article 21 of the Constitution," the bench said. It also appreciated the decision taken by Parliament to enact the adoption law. "The legislature which is better equipped to comprehend the mental preparedness of the entire citizenry to think unitedly on the issue has expressed its view, for the present, by the enactment of the JJ Act 2000 and the same must receive due respect," it said. The apex court also noted that pursuant to the JJ Rules, 2007 and in exercise of the rule making power vested by the JJ Act, most of the states have followed suit and adopted the guidelines issued by CARA making the same applicable in the matter of adoption within the territorial boundaries of the state concerned. According to the Muslim Personal Law Board, Islamic law professes what is known as the 'Kafala' system under which the child is placed under a 'Kafil' who provides for the well being of the child including financial support and thus is legally allowed to take care of the child though the child remains the true descendant of his biological parents and not that of the adoptive parents.
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