JESHY C O Vs. UNION OF INDIA

JUDGEMENT

(1.) These writ petitions are filed challenging the provisions of the guidelines governing Adoption Regulations, 2017 issued under the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, 'the Act, 2015'). The essential challenge is against the eligibility criteria for prospective adoptive parents as contained in Regulation 5 of the Adoption Regulations, 2017 with regard to the maximum composite age of prospective adoptive parents for the purpose of adoption of child up to four years of age. The grounds for challenge in the writ petitions are, however, different.

(2.) The petitioner in W.P(C).No.31780 of 2016, who is a non Hindu aged 50 years at the time of filing of this writ petition, challenges the provisions of Regulation 5(g) on the ground that it discriminates against his right to adopt in so far as Hindu parents are permitted to adopt a child in terms of the provisions of the Hindu Adoption and Maintenance Act, 1956 (for short, 'the Act, 1956'). It is therefore contended that since a non Hindu is disabled from adopting a child of less than four years of age, if the composite age of the adoptive parents is greater than what is prescribed under the Regulation, the said Regulation in the guidelines amounts to a restrictive discrimination as against the right of a non Hindu to adopt. Reliance is placed on the decisions of the Apex Court in Lakshmi Kant Pandey v. Union of India,1984 KHC 616, Mary Sonia Zachariah v. Union of India, 1995 1 KerLT 644 (FB), Delhi Subordinate Services Selection Board v. Praveen Kumar,2017 KHC 2413, Saumya Ann Thomas v. Union of India, 2010 1 KerLT 869 and Shabnam Hashmi v. Union of India and Others, 2014 4 SCC 1.

(3.) In W.P(C).No.4702 of 2017, the petitioners, who are Hindus by religion aged 58 and 63 years respectively, challenge the guidelines on the ground that the provision with regard to maximum composite age of prospective parents is ultra vires the enabling provision in Section 57 of the Act, 2015. It is further submitted that the said prescription of upper age limit is unsupported by any study or any discernible reason whatsoever. It is stated that the petitioners being physically fit and economically competent are entitled to adopt a child of the age of their choice. It is further contended that the Act, 1956 permits such adoption by Hindus and the guidelines in so far as it restricts the right of Hindus to adopt is violative of the provisions of the Act apart from being ultra vires the enabling Statute as well. Reliance is placed on Anokha v. State of Rajasthan, 2004 1 SCC 382, Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, 2004 12 SCC 770, Chandrasekhara v. Kulandaivelu, 1963 AIR(SC) 185, Amarendra Man Singh Bhramarbar v. Sanatan Singh, 1933 AIR(PC) 155, Bijoe Emmanuel v. State of Kerala, 1987 AIR(SC) 748, Vareed Porinchukutty v. State of Kerala,1971 KerLT 204 Ratilal Panachand Gandhi v. State of Bombay, 1954 AIR(SC) 388 and The Commissioner, Hindu Religious Endowments, Madras v. Sri.Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR(SC) 282. The essential contention of the petitioners in W.P(C).No.4702 of 2017 is that their right to adopt is an essential part of their religious belief and faith and cannot be taken away by a temporal law on the subject. On the question of reliance of age as means of classification, the learned counsel relied on the decisions of the Apex Court in Indian Council of Legal Aid & Advice v. Bar Council of India, 1995 1 SCC 732, St.Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education and Another, 2003 3 SCC 321 and Delhi Subordinate Services Selection Board v. Praveen Kumar, 2017 AIR(SC) 649.