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Madhya Pradesh High Court · body

2017 DIGILAW 532 (MP)

Om Prakash Sharma v. State of M. P.

2017-04-20

VIVEK AGARWAL

body2017
ORDER : Vivek Agarwal, J. Petitioner has filed this writ petition being aggrieved by order dated 2nd December, 2016 passed by the Court of 9th Additional District Judge, Gwalior, in civil suit No.7000166/2016 (Dr. Om Prakash Sharma and others v. State of M.P.), whereby an application for adoption of a orphan child under the provisions of Section 61(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short the Act of 2015) has been rejected on the ground that Union of India, Ministry of Women and Child Development has issued a notification dated 17th July, 2015 vide which Guidelines Governing the Adoption of Children, 2015 have been notified and as per those guidelines maximum composite age of prospective adoptive parents for a child to be adopted upto the age of 4 years should be 90 years and on this ground that since maximum composite age of petitioners is above 90 years, application for adoption has been rejected. 2. It is petitioner's contention that there is a specific provision in Section 68 of the Act of 2015 which provides for formation of a Central Adoption Resource Authority (CARA). The functions which have been prescribed for such authority are to promote in-country adoptions and to facilitate inter-State adoptions in co-ordination with State Agency. Section 70 deals with powers of CARA. Section 70(2) provides that in case of any difference of opinion in an adoption case, including the eligibility of prospective adoptive parents or of a child to be adopted, the decision of Authority shall prevail. Learned counsel for the petitioners submits that CARA vide its communication dated 25.5.2016 had already communicated to petitioner No.3 that they have no objection for placement of the child in adoption with Dr. Om Prakash Sharma and Dr. Vandana Sharma. In view of such no objection, it is submitted that provisions of Section 70(2) will overrule the notification notifying guidelines for adoption. 3. It is also submitted that these guidelines have come into force on 1st day of August, 2015, whereas petitioners No.1 and 2 have been registered for adoption since 27.7.2014, and therefore, these guidelines being prospective will not come in the way of the petitioners. 4. 3. It is also submitted that these guidelines have come into force on 1st day of August, 2015, whereas petitioners No.1 and 2 have been registered for adoption since 27.7.2014, and therefore, these guidelines being prospective will not come in the way of the petitioners. 4. Learned counsel for the respondent/State submits that even under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2007 there was a provision for composite age of the parents and since petitioners No.1 and 2 exceed such composite age, they cannot be permitted to have adoption of the child in question. 5. In the present case, the fact of the matter is that child in question is already in foster care of petitioners No. 1 and 2 and welfare of the child being pre-dominent consideration. Section 57 of the Act of 2015 provides eligibility of prospective adoptive parents. Section 57 does not prescribe any age for prospective adoptive parents and it only provides that prospective adoptive parents should be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him. Further Section 61 provides that before issuing an adoption order, the Court shall satisfy itself that the adoption is for the welfare of child; due consideration is given to the wishes of the child having regard to the age and understanding of the child; and neither the prospective adoptive parents has given or agreed to give nor the specialised adoption agency or the parent or guardian of the child in case of relative adoption has received or agreed to receive any payment or reward in consideration of the adoption, except as permitted under the adoption regulations framed by the Authority towards the adoption fees or service charge or child care corpus. Further, Rule 35 of the Juvenile Justice (Care & Protection of the Children) Rules, 2007, provides criteria for selection of families for foster care and it does not provide any age limit except that Rule 35(vi) provides that foster parents should be physically, mentally and emotionally stable. 6. Further, Rule 35 of the Juvenile Justice (Care & Protection of the Children) Rules, 2007, provides criteria for selection of families for foster care and it does not provide any age limit except that Rule 35(vi) provides that foster parents should be physically, mentally and emotionally stable. 6. In view of such provisions under the Act and the Rules, this Court is of the view that prescribing maximum composite age of prospective adoptive parents by way of guidelines cannot overrule the provisions of the Act and the Rules and in any case such guidelines are prospective and will be effective for those prospective adoptive parents, who have registered themselves after first day of August, 2015, when these guidelines were brought into force. Further, these guidelines have been issued in relation to Juvenile Justice (Care & Protection of Children) Act, 2000, whereas petitioners' case is governed by the provisions contained in Juvenile Justice (Care & Protection of Children) Act, 2015, therefore, these guidelines will not be applicable for those parents who had registered themselves for adoption prior to coming into force of these guidelines and therefore, as per the provisions contained in Section 70(2), the opinion of CARA has to prevail and since CARA has expressed no objection for placement of the child in adoption with petitioners No.1 and 2, the impugned order passed on the basis of guidelines, is not just and correct. Guidelines will not supersede the provisions of the Act and the Rules made thereunder, and therefore, the impugned order is quashed. Writ Petition is allowed and it is directed that child-Atul shall be handed over in adoption to petitioners No.1 and 2 by petitioner No.3.