MANUEL THEODORE DSOUZA Vs. N R

JUDGEMENT

(1.) TWO couples, Indian citizens, professing the Christian faith, applied to this Court for being appointed as guardians under the Guardians and Wards Act. In the course of the proceedings they amended their petition, to seek a prayer that the children be given to them in adoption. The petitioners being Christians are presently only entitled to be appointed as guardians. They do not fall within the definition of "hindu" as defined in the Hindu Adoption and Maintenance Act, 1956. A question immediately arose, whether a civilised State committed to the Rule of law, governed by a written Constitution and signatory to International Conventions on the Rights of a child, could deny to a section of its own citizens the right to adopt a child and to give that child, a home, a name and nationality. Article 14 of our Constitution ensures equality before law to all citizens. Non-arbitrariness is the hallmark of this Article. On 26th November, 1949 we gave to ourselves, a Bill of Rights, when the Constituent Assembly voted and approved the Preamble to the Constitution of India. The "tryst with Destiny" Speech, of the first Prime Minister of the new Nation, symbolised its hopes and aspirations. Much earlier our Noble Laureate Gurudev Tagore had penned a poem. Where the mind is without fear and the head is held High visualising what the new nation yet to be born out of the freedom struggle must aspire. These hopes and aspirations permeate the preamble to our Constitution. They now constitute our Rule of law. The Preamble is the judicial tool. This tool is of metal which is malleable, ductile and tenacious. Its effectiveness and strength lies in the hands of the maker. Belief in the Constitution and social commitments temper the approach in its use. Experience and age adds maturity to actions. Practical field experiences adds to this armoury. Experience, therefore, has a great role to play not only in shaping our thoughts but in our approach in interpreting the constitutional provisions. The fight against injustice must be inherent in you. It cannot be conferred or imposed by mere occupation of a judicial chair. Justice does not flow from the chair, but from the person occupying it. The chair reflects authority. The weak should not occupy it, nor the submissive. The Constitutional structure will be damaged beyond repair if Constitutional functionaries fail to express their views. Expressing views which may not be palatable to some is not dissent, but upholding of Constitutional values. These are not stray or rambling thoughts. These views are borne out of experience. A reflection of the present and the past. A Division Bench of this Court sitting at Panaji, Goa a decade ago presided over by a Visiting Judge, had to hear a petition filed on behalf of orphan children housed in Homes run by an Institution known as Provedoria Assistanca Publica. These children from the infancy were left in the custody of these Homes. All through their young life that was home to them. The Government of Goa issued a Circular that on reaching majority, both girls and boys would have to leave the Institutions. Most of them were not trained for any occupation and were otherwise unemployed. By the petition, relief was sought that they should be allowed to stay even after attaining majority or till they were employed and/or rehabilitated in a useful vocation. The learned Judge after hearing Counsel for the petitioner summarily dismissed the petition whilst expressing, 'oh what beautiful poetry'. The Judge was appreciative of the language of the petition, but deaf to the orphans anguished cry for justice. Many of us examining such issues forget that we have taken a solemn oath or protect and defend the Constitution. That requires examining legislation and fundamental rights in such a manner that the tears of the abandoned and homeless infants are wiped away, of course within the Constitutional parameters. In this matter the exercise of power of parens patraie and Article 226 to give effect to the fundamental rights, what is in issue are the enforceability of directive principles and International covenants to which India is a signatory. It was the Poet Khalil Gibran who in a couplet said:---"our children are not our children, they are the sons and daughters of life, longing for itself. " how long must these children wait for justice in the absence of positive steps taken by the State. Even the good Lord seems to have forgotten them. I quote from the Book of Psalms: "how long, Oh Lord? Will thee forget me forever". They are children just like other children. These are children, however, without home and family. Don't they have a right to love and security. Should not the Constitution be also meaningful to them. Having been orphaned should the Republic abandon them forever. The Rule of law must reach them. Protests, from whatever sections should not stop the pursuit of justice to those in need of it. The right of a child cannot be confused with the personal law of any section of our pluralistic society. Adoption is not to be treated as an act by a State to force a child on unwilling parents. On the contrary it is a voluntary act on the part of eligible persons to provide comfort, love and security to the abandoned and homeless children. No religion, can deny family love to these children of God. Religions preach peace and brotherhood. How can there be brotherhood if you will not treat a section of your citizens as brothers. Children are the living embodiment of God. In them you find the manifestation of God in all its forms. In the smile of the child you see beauty of creation.

(2.) THE question then, in the absence of legislation has the Court powers of giving an abandoned or orphaned or destitute child in adoption? Before formulating the questions I may once again refer to the Bible, the Gospel by Mathew. When a disciple came to Jesus saying "who is the greatest in the Kingdom of Heaven? Calling a child, he put him in the midst of them and said "truly, I say to you, unless you turn and become like children, you will never enter the Kingdom of Heaven. Whoever humbles himself like this child, he is the greatest in the Kingdom of heaven. Whoever receives one such child in my name receives me:. . . . " to answer the question, the points formulated are as under:---

(3.) COUNSEL arguing for Adoption have raised various submissions to support the contention that a child in the absence of law can be given in adoption. The Advocate General of State of Maharashtra, after referring to judicial authorities pointed out to the Court that both Houses constituting the Legislature of the State of Maharashtra had passed a Bill which was awaiting assent of the President of India. On behalf of the Union of India, the learned Additional Solicitor General strongly contended that in the absence of legislation courts cannot pass orders. Matter pertaining to adoption being a sensitive issue the Court should not pass any orders which rightly belongs to the domain of the Legislature and or the Executive. It is further pointed out that Article 21 is couched in a negative language and as such also no relief can be granted by the Court. Various Institutions have also put forward their views which I would briefly refer to.