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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 470 OF 2005

SHABNAM HASHMI        ...    PETITIONER(S)

VERSUS

UNION OF INDIA & ORS.        ...  RESPONDENT (S)  

J U D G M E N T

RANJAN GOGOI, J.

1. Recognition of the right to adopt and to be adopted as a  

fundamental  right  under  Part-III  of  the  Constitution  is  the  

vision  scripted  by  the  public  spirited  individual  who  has  

moved this Court under Article 32 of the Constitution.  There  

is  an  alternative  prayer  requesting  the  Court  to  lay down  

optional guidelines enabling adoption of children by persons  

irrespective of religion, caste, creed etc.  and further for a  

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direction  to  the  respondent  Union  of  India  to  enact  an  

optional  law  the  prime  focus  of  which  is  the  child  with  

considerations like religion etc. taking a hind seat.   

2. The  aforesaid  alternative  prayer  made  in  the  writ  

petition appears to have been substantially fructified by the  

march  that  has  taken  place  in  this  sphere  of  law,  gently  

nudged by the judicial verdict in Lakshmi Kant Pandey Vs.  

Union of India1 and the supplemental, if not consequential,  

legislative  innovations in  the  shape  of  the  Juvenile  Justice  

(Care And Protection of Children) Act, 2000 as amended in  

2006  (hereinafter  for  short  ‘the  JJ  Act,  2000)  as  also  The  

Juvenile  Justice  (Care  and  Protection  of  Children)  Rules  

promulgated in the year 2007 (hereinafter for short ‘the JJ  

Rules, 2007’).   

3. The alternative prayer made in the writ petition may be  

conveniently dealt with at the outset.

The decision of this  Court  in  Lakshmi Kant Pandey  

(supra) is a high watermark in the development of the law  

relating to adoption.   Dealing with inter-country adoptions,  1 (1984) 2 SCC 244

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elaborate guidelines had been laid by this Court to protect  

and further the interest of the child.  A regulatory body, i.e.,  

Central  Adoption  Resource  Agency  (for  short  ‘CARA’)  was  

recommended  for  creation  and  accordingly  set  up  by  the  

Government of India in the year 1989.  Since then, the said  

body has been playing a pivotal role, laying down norms both  

substantive and procedural, in the matter of inter as well as  

in  country  adoptions.   The  said  norms  have  received  

statutory recognition on being notified by the Central Govt.  

under Rule 33 (2) of the Juvenile Justice (Care and Protection  

of Children) Rules, 2007 and are today in force throughout  

the  country,  having  also  been  adopted  and  notified  by  

several  states  under  the  Rules  framed  by  the  states  in  

exercise of the Rule making power under Section 68 of the JJ  

Act, 2000.

4. A  brief  outline  of  the  statutory  developments  in  the  

concerned sphere may now be sketched.   

In stark contrast to the provisions of the JJ Act, 2000 in  

force as on date,  the Juvenile Justice Act, 1986 (hereinafter  

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for short ‘the JJ Act, 1986’) dealt with only “neglected” and  

“delinquent juveniles”.  While the provisions of the 1986 Act  

dealing  with  delinquent  juveniles  are  not  relevant  for  the  

present, all that was contemplated for a ‘neglected juvenile’  

is  custody in  a  juvenile  home or  an  order  placing  such  a  

juvenile under the care of a parent, guardian or other person  

who was  willing  to  ensure  his  good behaviour  during  the  

period of observation as fixed by the Juvenile Welfare Board.  

The JJ Act, 2000 introduced a separate chapter i.e. Chapter IV  

under  the  head  ‘Rehabilitation  and  Social  

Reintegration’ for a child in need of care and protection.  

Such rehabilitation and social reintegration was to be carried  

out alternatively by adoption or foster care or sponsorship or  

by sending the child to an after-care organization.  Section  

41 contemplates adoption though it makes it clear that the  

primary responsibility for providing care and protection to a  

child is his immediate family.  Sections 42, 43 and 44 of the JJ  

Act,  2000  deals  with  alternative  methods  of  rehabilitation  

namely, foster care, sponsorship and being looked after by  

an after-care organisation.   

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5. The JJ Act, 2000, however did not define ‘adoption’ and  

it  is  only  by  the  amendment  of  2006  that  the  meaning  

thereof came to be expressed in the following terms:

“2(aa)-“adoption”  means  the  process  through  which the adopted child is permanently separated  from  his  biological  parents  and  become  the  legitimate child of his adoptive parents with all the  rights,  privileges  and  responsibilities  that  are  attached to the relationship”

6. In fact, Section 41 of the JJ Act, 2000 was substantially  

amended in 2006 and for the first time the responsibility of  

giving  in  adoption  was  cast  upon  the  Court  which  was  

defined by the JJ  Rules, 2007 to mean a civil court having  

jurisdiction in matters of adoption and guardianship including  

the court of the district judge, family courts and the city civil  

court.  [Rule 33 (5)]  Substantial changes were made in the  

other  sub-sections of Section 41 of the JJ  Act,  2000.   The  

CARA, as an institution, received statutory recognition and so  

did the guidelines framed by it and notified by the Central  

Govt. [Section 41(3)].

7. In exercise of the rule making power vested by Section  

68 of the JJ Act, 2000, the JJ Rules, 2007 have been enacted.  

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Chapter V of the said Rules deal with  rehabilitation and  

social reintegration.   Under Rule 33(2) guidelines issued  

by the CARA, as notified by the Central Government under  

Section 41 (3) of the JJ Act, 2000, were made applicable to all  

matters relating to adoption.  It appears that pursuant to the  

JJ  Rules,  2007  and  in  exercise  of  the  rule  making  power  

vested by the JJ Act, 2000 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 concerned State.   

Rules  33(3)  and  33(4)  of  the  JJ  Rules,  2007  contain  

elaborate  provisions regulating  pre-adoption procedure  i.e.  

for declaring a child legally free for adoption. The Rules also  

provide for foster care (including pre-adoption foster care) of  

such children who cannot be placed in adoption & lays down  

criteria  for  selection  of  families  for  foster  care,  for  

sponsorship  and  for  being  looked  after  by  an  aftercare  

organisation.  Whatever the Rules do not provide for  are  

supplemented  by  the  CARA  guidelines  of  2011  which  

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additionally  provide  measures  for  post  adoption  follow up  

and maintenance of data of adoptions.  

8. It will now be relevant to take note of the stand of the  

Union of India.  Way back on 15th May, 2006 the Union in its  

counter  affidavit  had  informed  the  Court  that  prospective  

parents, irrespective of their religious background, are free  

to access the provisions of the Act for adoption of children  

after following the procedure prescribed.  The progress on  

the ground as laid before the Court by the Union of India  

through  the  Ministry  of  Women  and  Child  Development  

(respondent No. 3 herein) may also be noticed at this stage.  

The  Union  in  its  written  submission  before  the  Court  has  

highlighted that at the end of the calendar year 2013 Child  

Welfare  Committees  (CWC)  are  presently  functioning  in  a  

total of 619 districts of the country whereas State Adoption  

Resource  Agencies  (SARA)  has  been  set  up  in  26  

States/Union  Territories;  Adoption  Recommendation  

Committees (ARCs) have been constituted in 18 States/Union  

Territories  whereas  the  number  of  recognized  adoption  

organisations in the country are 395.  According to the Union  

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the  number  of  reported  adoptions  in  the  country  from  

January, 2013 to September, 2013 was 19884 out of which  

1712  cases  are  of  inter-country  adoption.   The  third  

respondent has also drawn the attention of the Court that  

notwithstanding the time schedule specified in the guidelines  

of 2011 as well as in the JJ Rules, 2007 there is undue delay  

in processing of adoption cases at the level of Child Welfare  

Committees  (CWS),  the  Adoption  Recommendation  

Committees (ARCs) as well as the concerned courts.   

9. In  the  light  of  the  aforesaid  developments,  the  

petitioner in his written submission before the Court, admits  

that the JJ  Act, 2000 is a secular law enabling any person,  

irrespective of the religion he professes, to take a child in  

adoption.  It is akin to the Special Marriage Act 1954, which  

enables any person living in India to get married under that  

Act,  irrespective  of  the  religion he  follows.  JJA  2000 with  

regard to adoption is an enabling optional gender-just law, it  

is submitted.  In the written arguments filed on behalf of the  

petitioner  it  has  also  been  stated  that  in  view  of  the  

enactment of the JJ Act, 2000 and the Amending Act of 2006  

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the  prayers  made  in  the  writ  petition  with  regard  to  

guidelines to enable and facilitate  adoption of children by  

persons  irrespective  of  religion,  caste,  creed  etc.   stands  

satisfactorily answered and that a direction be made by this  

Court to all  States, Union Territories and authorities under  

the JJ Act, 2000 to implement the provisions of Section 41 of  

the Act and to follow the CARA guidelines as notified.

10. The All  India  Muslim Personal  Law Board (hereinafter  

referred  to  as   ‘the  Board’)  which  has  been  allowed  to  

intervene  in  the  present  proceeding  has  filed  a  detailed  

written submission wherein it has been contended that under  

the  JJ  Act,  2000  adoption  is  only  one  of  the  methods  

contemplated for taking care of a child in need of care and  

protection and  that  Section 41 explicitly  recognizes  foster  

care,  sponsorship  and  being  look  after  by  after-care  

organizations as other/ alternative modes of taking care of  

an abandoned/surrendered child.  It is contended that Islamic  

Law does not recognize an adopted child to be at par with a  

biological  child.   According  to  the  Board,  Islamic  Law  

professes what is known as the “Kafala” system under which  

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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 Board contends that the  

“Kafala” system which is recognized by the United Nation’s  

Convention of the Rights of the Child under Article 20(3) is  

one of the alternate system of child care contemplated by  

the JJ Act, 2000 and therefore a direction should be issued to  

all the Child Welfare Committees to keep in mind and follow  

the principles of Islamic Law before declaring a muslim child  

available for adoption under Section 41(5) of the JJ Act, 2000.  

11. The JJ Act, 2000, as amended, is an enabling legislation  

that  gives a  prospective parent  the option of adopting an  

eligible child by following the procedure prescribed by the  

Act,  Rules and the CARA guidelines,  as notified under the  

Act.  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.  Such  

a person is always free to adopt or choose not to do so and,  

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instead, follow what he comprehends to be the dictates of  

the personal law applicable to him.  To us, the Act is a small  

step  in  reaching  the  goal  enshrined  by  Article  44  of  the  

Constitution.   Personal  beliefs  and faiths,  though must  be  

honoured, cannot dictate the operation of the provisions of  

an enabling statute.  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.  

12. The writ petitioner has also prayed for a declaration that  

the right of a child to be adopted and that of the prospective  

parents  to  adopt  be  declared  a  fundamental  right  under  

Article  21  of  the  Constitution.   Reliance  is  placed  in  this  

regard on the views of the Bombay and Kerala High Courts in  

In  re:  Manuel  Theodore D’souza2 and  Philips  Alfred  2 (2000) 3 BomCR 244

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Malvin Vs.  Y.J.Gonsalvis & Ors.3 respectively. The Board  

objects to such a declaration on the grounds already been  

noticed,  namely,  that  Muslim  Personal  Law  does  not  

recognize adoption though it  does not  prohibit  a  childless  

couple from taking care and protecting a child with material  

and emotional support.

13. Even though no serious or substantial debate has been  

made  on  behalf  of  the  petitioner  on  the  issue,  abundant  

literature including the holy scripts have been placed before  

the Court by the Board in support of its contention, noted  

above.  Though enriched by the lengthy discourse laid before  

us, we do not think it necessary to go into any of the issues  

raised.   The Fundamental Rights embodied in Part-III of the  

Constitution constitute the basic human rights which inhere  

in every person and such other rights which are fundamental  

to the dignity and well being of citizens.  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  

3 AIR 1999 Kerala 187 12

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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  

belief  prevailing  in  the  country.  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.  

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. In this regard we would like to observe that  

the  decisions  of  the  Bombay  High  Court  in  Manuel  

Theodore D’souza (supra)  and  the  Kerala  High  Court  in  13

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Philips Alfred Malvin (supra)  can be best understood to  

have  been  rendered  in  the  facts  of  the  respective  cases.  

While the larger question i.e. qua Fundamental Rights was  

not directly in issue before the Kerala High Court, in Manuel  

Theodore D’souza (supra) the right to adopt was consistent  

with the canonical  law applicable to the parties who were  

Christians  by faith.   We hardly  need  to  reiterate  the  well  

settled  principles  of  judicial  restraint,  the  fundamental  of  

which  requires  the  Court  not  to  deal  with  issues  of  

Constitutional interpretation unless such an exercise is but  

unavoidable.

14. Consequently, the writ petition is disposed of in terms of  

our directions and observations made above.

...…………………………CJI. [P. SATHASIVAM]

.........………………………J. [RANJAN GOGOI]

…..........……………………J. [SHIVA KIRTI SINGH]

NEW DELHI, FEBRUARY  19, 2014.

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