ANDREW MENDEZ Vs. STATE OF KERALA

JUDGEMENT

(1.) Which is the court referred to in Section 41(6) of The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act) after its amendment by Act 33/06 Can it be said that it is the Juvenile Justice Board itself If not, which is the court which the Legislature had in mind when the Act was amended by Act 33/06 These are the questions which come up before this court for consideration in this petition. How an in alert amendment of a statute can reap pernicious consequences in the implementation of the provisions of the statute is clearly revealed from the dilemma which is posed before the court in this case.

(2.) The petitioners 1 and 2 are a couple, who had got themselves appointed as guardians of a child sponsored by the placement agency, the third petitioner. By order dated 6/6/97 passed by the Family Court, Ernakulam in O.P.No.97/97 petitioners 1 and 2 were appointed as guardians of the child and the child continues to be under their care and custody. According to them, since there was no law enabling them to adopt the child they had to remain satisfied with their status as legal guardians of the child.

(3.) Then came the enactment of The Juvenile Justice (Care and Protection of Children) Act, 2000. It contained provisions relating to adoption. Adoption as a legal concept was available only among the members of the Hindu community except where custom permits such adoption for any sections of the polity. But in Chapter 6 of the Act dealing with re-habilitation and social re-integration of children we find the legislature accepting the concept of secular adoption whereby without any reference to the community or the religious persuasions of the parents or the child concerned, a right appears to have been granted to all citizens to adopt and all children to be adopted. The history of the attempt to bring in the concept of secular adoption into our system of laws narrates a sad tale of inaction and action without conviction on the part of the legislature. It is perhaps unfortunate that even now the republic of India does not have a codified law of adoption applicable to all Indians. The attempts of the Indian Parliament in this direction did not bear fruit. The history of the Adoption of Children's Bill 1972 and Adoption of Children's Bill 1980 do not, of course, bring credit to the secular credentials of the Indian polity. Let us accept the reality. Awareness and acceptance of failure can be the stepping stones to eventual success. We have not been able to bring in a secular law of adoption applicable to all Indians so far. It is in this context that a laudable attempt is undertaken by the legislature by the stipulations which have been made in chapter IV of the Juvenile Justice (Care an Protection of Children) Act, 2000. There was still confusion as the concept of adoption was not defined in the Act. The provisions were criticized to be inadequate as the legal status of the adopted child has no by law been declared to be equal to that of a biological legitimate child. It is in this context that Act 33 of 2006 was introduced under which the concept of adoption was defined by enacting Section 2(aa) of the Act which reads as follows: