Full Judgment Text
2026:BHC-OS:11417-DB
J-WP-1085-205.odt
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1085 OF 2023
WITH
INTERIM APPLICATION (L) NO.21485 OF 2024
WITH
INTERIM APPLICATION (L) NO.12194 OF 2023
WITH
INTERIM APPLICATION (L) NO.10867 OF 2023
IN
WRIT PETITION NO.1085 OF 2023
Nisha Pradeep Pandya alias
Nisha Amit Gor & Anr. ....Petitioners
V/S
Union of India & Ors. ....Respondents
ALONGWITH
WRIT PETITION NO.205 OF 2023
Mohammed Javid Khan & Anr. ....Petitioners
V/S
Union of India & Ors. ....Respondent
Mr.Vishal Kanade a/w Ms.Tanaya Patankar i/b Mr.Sameer
Sawant for the Petitioner in WP No.1085/2023.
Mr.Avinash Gokhale a/w Ms.Amrin Khan for Petitioner in WP
No.205/2023.
Mr.Anil Singh, ASG a/w Ms.Savita Ganoo, Mr.Aditya Thakkar,
Mr.Adarsh Vyas and Ms.Rama Gupta i/b Ms.Anusha Amin for
Union of India.
Mr.Danish Qureshi i/b Mahimtura & Co. for Respondent Nos.4 and
5.
Digitally signed
by RAJSHREE
KISHOR MORE
Date:
2026.05.04
17:27:24 +0530
RAJSHREE
KISHOR
MORE
Ms.P.H. Kantharia, GP a/w Ms.Jyoti Chavan, Addl. GP for State.
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CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ
th
DATE : 4 MAY 2026
JUDGMENT (PER BHARATI DANGRE, J) :
1 Writ Petition No.1085 of 2023 filed by the Petitioners Nisha
Pradeep Pandya and Pradeep Baijnath Pandya raise a challenge
to the amendment introduced by the Juvenile Justice (Care and
Protection of Children) Amendment Bill, 2021, in the Juvenile
Justice (Care and Protection of Children) Act, 2015 alongwith the
Juvenile Justice (Care and Protection of Children) Amendment
Rules, 2022, insofar as they have replaced the word ‘Court’ with
‘District Magistrate’. A challenge is also raised to the
consequential amendments in the Act and Rules by claiming that
they are violative of Article 14 and 21 of the Constitution of India
and defeat the basic structure doctrine which shall enforce
concept of equality and separation of power.
The second Writ Petition No.205 of 2023 filed by
Mohammad Javid Khan and Shewar Mohammed Javid Khan is
concerned with adoption of the child to the proposed parents, in
close relation of Petitioner No.2 who had filed a Foreign Adoption
Petition under Section 16(1) of the Juvenile Justice Act, 2015
and the Regulations of 2017 and challenge is also raised to the
conferment of the judicial powers from the Collector to the
District Magistrate (executive) in the wake of the Juvenile
Justice (Care and Protection of Children) Model Amendment
Rules, 2022, being introduced and challenge is also raised to the
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provisions in the Amendment Act, 2021 to the extent that it
contemplate transfer of power from the ‘Court’ to the ‘Collector’
and ‘District Magistrate’ and the claim is, it is ultra vires to the
Constitution.
2 On 10/01/2023, the Division Bench noted that there is no
stay to the implementation of the amendment and directed the
Government to file its Affidavit in Reply and also issued notice to
the Attorney General. On the very same day, ad-interim order
was granted in terms of prayer clauses (d), (e) and (f) , as a result
of which the Court stayed the effective implementation and
purport of the letter of 30/09/2022, issued by Respondent No.2
and it restrained the Respondents from transferring pending
adoption matters before the District Magistrate for adjudication.
3 We have the learned counsel Mr.Vishal Kanade for the
Petitioners in Writ Petition No.1085 of 2023 and Mr.Avinash
Gokhale for the Petitioner in Writ Petition NO.205/2023, who
adopted the arguments of Mr. Kanade and tendered written
submission. Respondent-Union of India is represented by the
learned Additional Solicitor General Mr.Anil Singh, who would
rely upon the Affidavit filed by the Under Secretary, Ministry of
Women and Child Development Department, justifying the
amendment and he has also placed on record written
submissions opposing the reliefs in the Petitions by placing
reliance upon various authoritative pronouncements.
4 With consent of respective counsel, we deem it appropriate
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to issue ‘Rule’ and at their request, we have taken up the
Petitions for final hearing at the stage of admission.
5 Mr.Vishal Kanade, representing the Petitioners i.e. a
married couple in Writ Petition No.1085 of 2023 would submit
that they were interested in pursuing the adoption process
under the Juvenile Justice Act, 2015 and on being aggrieved by
the Amendment effected by the Amending Act thereby assigning
the function, which was earlier vested under the provisions of
Juvenile Justice Act in the ‘Court’ being assigned to the ‘District
Magistrate’ and it is a matter of concern as according to him,
grant of acceptance of a child in adoption is a judicial function,
which could not be delegated to an Executive Authority like a
‘District Magistrate’ who may not possess the necessary
infrastructure as well as necessary expertise in this regard.
According to Mr.Kanade, a District Magistrate, being a Chief
Executive Officer of a District may not also be conversant with the
niceties of the law and, therefore, by substituting the role played
by the Court in the whole adoption process by that of the
Magistrate, would have an adverse impact upon the whole
process of adoption and since adoption is a legal process of
establishing a legal bond between the child and adoptive parents,
according to him, the Courts in exercise of its jurisdiction under
parents patriae are more suitable, as it can ensure the welfare of
the child. The issue of adoption being sensitive, according to
Mr.Kanade it deserve to be tackled with judicial expertise, as the
well being of the children and suitability of the family in which
the child is to be given in adoption, would be the focal point.
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Mr.Kanade would place reliance upon the decision of the
1
Apex Court in case of Lakshmi Kant Pandey vs. Union of India ,
when the Apex Court was confronted with the Public Interest
Litigation, complaining against mal-practices and trafficking in
children in connection with adoption of Indian children by
foreigners living abroad. While issuing the guidelines and
determining norms to be followed in cases of such adoption with
reference to the Guardians and Wards Act, 1890, Mr.Kanade has
emphasized that the Court pertinently observed that while
supporting inter-country adoption it is necessary to bear in mind
the primary object of giving the child in adoption and it being, the
welfare of the child, and great care must be exercised in
permitting the child to be given in adoption to foreign parents,
lest the child may be neglected and abandoned by the adoptive
parents in the foreign country or the adoptive parents may not be
able to provide to the child a life of moral or material security or
the child may be subjected to some abuse or forced labour or used
for experimentation for medical or other research and may be
placed in worse scenario than that of his own country.
According to Mr.Kanade, the Apex Court has identified
certain issues to be taken into consideration while undertaking
the adoption process and with reference to the Guardians and
Wards Act, 1890, which is a statutory enactment providing for
adoption of a child as far as India is concerned and the Apex
Court had noted that the ‘Court’ shall mean the District Court
having jurisdiction to entertain an Application under the Act for
an order appointing or declaring a person to be the guardian.
1 (1984) 2 SCC 244
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Inviting our attention to the observations when the Apex
Court contemplated giving notice to the Indian Council of Social
Welfare or any other independent, reputed in public or officially
recognized social welfare Agency, the Court emphasized upon
ensuring that the Application of foreign parents for guardianship
of the child with a view to its eventual adoption is properly and
carefully scrutinized and evaluated by an expert body having
experience in the area of child welfare with a view to assisting
the Court in coming to a conclusion, whether it would be in the
interest of the child to be adopted by the foreign parents and
whether such adoption will provide moral and material security
to the child with an opportunity to grow into the full structure of
its personality in an atmosphere of love and affection and warmth
of a family hearth and home.
While dealing with the procedure evolved by the High
Courts of Bombay, Delhi and Gujarat, the Apex Court deemed
such procedures to be eminently desirable as they would assist in
reducing, if not eliminating, the possibility of a child being
adopted by unsuitable or undesirable parents or being placed in a
family where it may be neglected, maltreated or exploited by the
adoptive parents.
6 Mr.Kanade has also placed before us the historical
background of the whole concept of adoption and he would submit
that the concept of adoption received legal sanction somewhere
between 1851 to 1926 when various countries enacted
legislations legalising and defining the process of adoption. He
would submit that one thing which was running common through
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all the legislations, was the judicial sanction of the adoption and
the Courts received the role of being an integral part of the
adoption process since the advent of the concept of adoption.
rd
Referring to the 153 Law Commission Report on Inter
Country Adoption, he would submit that the Adoption of Children
Bill 1980 which never was translated into a law, also provided for
judicial supervision and sanction in the process of adoption and
though it did not take the shape of statute, it endeavoured of
plucking the loopholes in the whole system and particularly
when the Indian children were being adopted by foreign parents.
The Apex Court treated the letter addressed by Laxmi Kant
Pandey an Advocate practicing in the court who complained of
mal-practices indulged by social organizations and voluntary
agencies in the work of offering Indian children in adoption to
foreign parents.
Expressing the concern that the children would be placed in
worse scenario if the adoption process is not carried out in
proper manner, which shall necessarily include the verification
and assessment of the potential of the adoptive parents to adopt
the child as their own and care for his upbringing, and notices
were issued to the Union of India, the Indian Council of Child
Welfare and Indian Council of Social Welfare, to assist the Court in
laying down the principles and norms which would be followed in
determining whether a child should be allowed to be adopted by
foreign parents and if so what shall be the procedure to follow so
as to ensure welfare of the child.
7 In the sequence of events, according to Mr.Kanade, the
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Juvenile Justice Act, 1986 was enacted which aimed at providing
care, protection, treatment, development and rehabilitation of
neglected or delinquent juveniles and for adjudication of certain
matters relating to and disposition of delinquent juveniles.
Somewhere in June, 1990 the Central Adoption Resource
Agency (CARA) was set up under the Ministry of Welfare,
Government of India with an avowed purpose of regulating,
monitoring and promoting the adoption of orphaned, abandoned
or surrendered children, which was subsequently conferred with
autonomous status.
8 The Juvenile Justice ( Care and Protection of Children) Act,
2000 repealed the Juvenile Justice Act, 1986 and the new Act
widened the scope from neglected children to all children ‘in need
of care and protection’ as defined in the Act. Though the statute
did not define the term ‘Adoption’, it was accepted as one of the
four ways of rehabilitation and social integration of the children
in need of care and protection. The Juvenile Justice Board (JJB)
constituted under the Act, vested with the powers of Metropolitan
Magistrate or Judicial Magistrate of First Class, was empowered
to give the children in adoption.
The Juvenile Justice (Care and Protection of Children)
(Amendment Act), 2006 when enacted, it introduced the
definition of ‘adoption’ and by this Amendment the power was
conferred on the Courts to give children in adoption by
substituting it in place of the ‘Board’.
The term ‘Adoption’ was defined to mean the process
through which the adopted child is permanently separated from
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his biological parents and becomes the legitimate child of his
adoptive parents with all rights, privileges and responsibilities,
being attached to the relationship.
Since adoption was resorted for rehabilitation of children
who were orphaned, abandoned or surrendered through the
mechanism as may be prescribed, the power to give the children
in adoption was conferred on the Court, who after satisfying itself
regarding the investigation having been carried out as required
for giving such children in adoption also stipulated the conditions
subject to which a child can be given in adoption and the parents
were permitted to adopt.
9 Mr.Kanade would place heavy reliance on the report of the
Department relating to the Parliamentary Standing Committee on
Human Resource Development in relation to the Juvenile Justice
( Care and Protection of Children) Bill, 2014, as the Parliament
proposed to consolidate and amend the law relating to children
in conflict with law and those in need of care and protection by
catering to the basic needs of proper care, protection,
development, social integration and this report according to him
addressed the problematic areas in implementation of the
Juvenile Justice Act, 2000 and this included; delays in various
process under the Act such as decision by Child Welfare
Committee(CWC) and Juvenile Justice Board (JJB), leading to
high pendency of cases.
This development was followed by enactment of Juvenile
Justice (Care and Protection of Children) Act, 2015 which
comprised of the definition of the term ‘Adoption’ and defined the
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‘Authority’ to mean the Central Adoption Resource Authority
(CARA) constituted under Section 68 of the Act. It also defined
‘Court’ in Section 23 as below :-
(23) “Court” means a Civil Court, which has jurisdiction in matters of
adoption and guardianship and may include the District Court, Family
Court and City Civil Court.”
10 Inviting our attention to the Scheme of the Act, Mr.Kanade
has submitted that Chapter VIII pertaining to adoption, set out
that it shall be resorted for ensuring right to family for the
orphaned, abandoned and surrendered children and all inter
country adoptions to be carried out as per the provisions of the
Act and the Adoption Regulations framed by the Authority. The
Authority was given statutory status under Section 68 which was
established with an intention to promote inter country adoptions
and facilitated inter state adoptions in coordination with State
agencies and to regulate inter country adoptions.
11 By the amendment introduced by the Amendment Act,
2021, the function which was assigned to the Court is now
entrusted to the District Magistrate, a limb of executive in
allowing the adoptions, substituting the Judicial Officers. Mr.
th
Kanade would place reliance upon the 118 Report of
Parliamentary Standing Committee on personal, public
grievances, law and justice and in particular, the following
observations therein :
“3.28 The Committee notes that Juvenile Justice (Care and Protection
of Children) Amendment Act. 2021 authorizes the District Magistrate
(including Additional District Magistrate) to issue adoption orders and
provides that any person aggrieved by an adoption order passed by the
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District Magistrate may file an appeal before the Divisional
Commissioner. The Committee is of the considered opinion that Judges
have the competence, experience and skills to determine whether
adoption is in the best interest of the child. When deciding on adoption,
Courts review documents, ensure necessary procedures have been
complied with, and conduct an inquiry of the child and adoptive
parents and ensure that adoption is for the welfare of the child. The
Committee feels that it is not appropriate for an administrative
authority to issue adoption orders instead of a judicial body. However,
since the Act has been amended and the new system is yet to be tried
and tested, the Committee recommends that appropriate training
should be imparted to District Magistrates & Additional District
Magistrates and Divisional Commissioners as well. The Committee
recommends the Ministry of Women and Child Development to review
the functioning of the new system after a year and present an
Assessment Report to the Committee accordingly.”
12 It is the specific contention of the Petitioners that the
impugned Amendment substituting the functionary under the
Juvenile Justice Act and specifically in relation to adoption by the
District Magistrate is manifestly arbitrary. According to him, in
case if an order is passed by the Court, it becomes enforceable
and executable through the machinery of the Court, but there is
no provision for enforceability/execution of the adoption orders if
at all they are passed by the District Magistrate. It is his specific
contention that the order granting a child in adoption is a judicial
function and the Civil Courts are best suited for exercise of this
power and the purported reasoning behind the amendment that
there are large number of pendency of adoption cases in High
Courts and Civil Courts which result in its disposal, according to
Mr.Kanade is not backed by facts. He would submit that merely
because the District Magistrates are now entrusted the task, no
way lead to an inference that the process to be adopted shall be
expeditious as substituting the Magistrate by the Court would in
fact defeat the very purpose of conferring the powers on an
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Authority, in allowing the adoption as Civil Courts who have the
judicial power would be more competent to deal with the
procedure of adoption.
The Juvenile Justice Board, which was also constituted,
comprised of Metropolitan Magistrate or Judicial Magistrate
First Class, alongwith two social workers of which at least one
had to be a woman.
Mr.Kanade’s emphasis is also on separation of power as he
would invoke Article 50 of the Constitution of India and submit
that when a judicial function is sought to be transferred by
virtue of creation of an alternative forum or a Tribunal, such
forum must have judicial trappings and must be occupied by
persons with judicial, technical and administrative members and
definitely the District Magistrate is not an appropriate substitute.
His main concern is enforceability/execution of the orders and in
order to have workability and practical implementation, it is his
submission that the District Magistrate who is the Revenue
Officer and with limited powers being conferred under the Code of
Criminal Procedure as well as other statutes is otherwise over
burdened with several executive functions being required to be
discharged by him as he is the Head of the administration of the
revenue district and also responsible for law and order situation.
Therefore, according to Mr.Kanade, there is no assurance/
guarantee, that if the functions are entrusted to District
Magistrate, the process will consume less time or that it will be
functioned as if through a ‘Magic Wand’ as the procedure that is
contemplated must be necessarily followed and if the process is
time consuming, it cannot be short circuited in the manner which
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the Union of India expect it to be.
13 Mr. Anil Singh, Additional Solicitor General, representing
the Union of India, strongly opposes the relief sought in the
Petition, and he raise an objection that the challenge raised in the
Petitions is academic in both the Petitions and neither of the
Petitioner has a cause of action, as they have failed to
demonstrate as to how they are affected by the said amendment.
Inviting our attention to the pleadings in the Petition, it is the
contention of Mr Singh that neither of the Petitioners have taken
any steps for adoption, nor do they have any proceedings pending,
and therefore, in no way, the amendment has impacted them.
Therefore, according to him, the challenge is merely academic,
and the Petitions, not being filed in public interest, do not deserve
to be entertained.
Apart from the aforesaid submissions, Mr. Singh would
submit that a statute is presumed to be constitutionally valid and
the burden rests on the person raising a challenge to the same. In
raising a challenge to constitutionality, according to him, the
grounds must be specific, and must set out the manner in which
the rights of the petitioner are affected.
For seeking a declaration that the provision is
unconstitutional, according to Mr. Singh, the challenge must be
based on cogent reasons and establish violation of fundamental
rights or that the legislature has no power to introduce the said
provision. According to Mr. Singh, the amendment of 2021 has
replaced ‘Courts’ with the ‘District Magistrate’, and he would
submit that there is no factual foundation laid down in either of
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the Petitions demonstrating violation of the fundamental rights of
either of the Petitioners, if at all the power is now exercised by the
District Magistrate. According to him, the challenge is sought to
be mounted on a historical perspective by claiming that such
powers have always been exercised by the Courts, but it is not
demonstrated as to how the transfer of this power in the ‘Juvenile
Justice Board’ to the ‘District Magistrate’ is beyond the
legislative competence, or that it suffers from manifest
arbitrariness and what impact it has upon the whole process.
14 Highlighting the process contemplated for adoption in the
scheme of the Juvenile Justice Act, Mr. Singh would submit that
the statutory mechanism prescribed has involvement of several
authorities and bodies, all aimed at a singular objective i.e. the
welfare of the child, and in the adoption process, ascertaining the
suitability of the adoptive parents, their home and monitoring the
child post-adoption to ensure that adoption has been in the
interest of the child. Highlighting the statement of objects and
reasons in introducing the amendment in the Juvenile Justice
(Care and Protection of Children) Act by Amendment Bill of 2021,
Mr. Singh would rely upon the following object :-
“(a) to strengthen child protection at district level by empowering
District Magistrate including Additional District Magistrate to
effectively coordinate and monitor the functions of various agencies
responsible for implementation of the provisions of the Juvenile Justice
Act.
(b) to empower District Magistrate including Additional District
Magistrate to authorise orders of adoption, in order to address issues of
delay in adoption and to propose that appeals on the orders of adoption
may be preferred to the Divisional Commissioner.”
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Thus, according to him, the delay in the process with the
involvement of the Courts was one of the issue which warranted
the substitution of ‘Court’ by District Magistrate including the
Additional District Magistrate, and since the District Magistrate
was considered to be in a position to effectively coordinate and
monitor the functions of various agencies responsible for
implementation of the Act, intention of the legislature according
to Mr. Singh, was laudable.
Reliance is also placed by Mr.Singh upon the Adoption
Regulations 2022, focusing upon the timelines envisaged under
the Act and it is his categorical submission that the steps to be
followed pre-adoption and the actual steps to be taken for
adoption do not require any specific judicial approach and in any
case, according to him, the District Magistrate, being the Chief
Executive Officer in the district, is suitably placed to ensure
effective coordination amongst stakeholders for facilitation of
necessary services for children rehabilitation/ re-integration.
Keeping in mind the timelines for disposal of adoption
proceedings, and the underlying emphasis on adoption cases
being non-adversarial in nature, according to Mr. Singh, the
legislature deemed it appropriate to culminate the adoption
process at the level of the District Magistrate, who is envisioned
as the ‘Child Protection Head’, who will monitor every stage of
implementation of the process of adoption in the Act. He would
submit that the District Magistrate, (i) shall be the Nodal Officer
in the district for the implementation of the Acts and Rules (ii)
function as head of Child Protection Services in district for
promotion, facilitation, monitoring and regulation of adoption
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programme (iii) When required, in the best interest of a child, call
for any information from all stakeholders including JJB and CWC
(iv) monitor the functioning of various agencies including the
DCPU and CWC that are responsible for implementation of the act
and to hold quarterly review meetings with the stakeholders to
discuss the issue related to children in the district. (v) Can act as
Grievance Redressal Authority of functioning of CWC and the
affected child. (vi) Make recommendations for registration of
Child Care Institutions, (CCIs) based on inspection.
15 According to Mr.Singh, the District Magistrate performs
various administrative and quasi judicial functions under various
statutes and he has highlighted the list of statutes, where the
District Magistrate is empowered to adjudicate and this include
the Appellate Tribunal constituted under Section 15 of the
Maintenance and Welfare of Parents and Senior Citizens Act,
2007, which is presided by an Officer not below the rank of the
District Magistrate and this Tribunal is empowered to adjudicate
the Appeals against orders of the Tribunal constituted under the
Act empowered to decide on the issue of maintenance under
Section 5, and is vested with the power to record evidence.
Similarly, under Section 31 of the Maharashtra Stamp Act, 1958,
according to Mr. Singh, the Collector is the Authority to
determine the stamp duty payable on an instrument and he
performs administrative as well as quasi-judicial functions under
the Act.
According to Mr. Singh, the District Magistrate is not a new
entrant in the Act, as he was performing various functions even
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prior to the amendment, and no grievance was made. According
to him, as per Section 101, the District Magistrate was exercising
the power of the Appellate Forum against the orders passed by
CWC and the JJB in relation to foster care and sponsorship
Aftercare.
16 In addition, Mr. Singh would submit that in accordance with
the recommendations of the Parliamentary Standing Committee,
appropriate training shall be imparted to District Magistrate and
Divisional Commissioners, by the Ministry of Women and Child
Development with the involvement of CARA and more than 27
orientation programmes have been arranged between February
2022 and December 2022, to make the District Magistrates
equipped with discharge of their duties in the wake of the
amendment of 2021. It is categorically submitted by Mr.Singh
that as child protection head, the District Magistrate is
conversant with the child protection issues, including adoption, in
the district and he is also oriented on key features of the Juvenile
Justice Act to ensure smooth implementation of Child Protection
Scheme, titled as ‘Mission Vatsalya’ and therefore, according to
him, the District Magistrate has the competence and expertise to
deal with adoption matters, and in any case, the assigned role of
the District Magistrate in no way, diminish the judiciary’s
authority to oversee the overall operation of the Juvenile Justice
System. According to him, amendment merely confers the duty to
permit adoption by the District Magistrate in place of the Court
and therefore, there is only a change in the forum and in any case,
according to him, the Courts who were competent to exercise the
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said function, were not required to determine the rights of the
parties, but merely restricted its role to assist whether the
mandatory requirement under the Acts and Regulations are
adhered to before the adoption is allowed and the same power and
duty being now case upon the District Magistrate, who shall
consider the applications for adoption and follow the same
procedure which was done by the Court.
17 In the backdrop of the challenge raised to the 2021
amendment introduced in the Juvenile Justice (Care and
Protection of Children) Act, 2015, by the amending Act of 2021,
the term ‘District Magistrate’ is introduced in Section 26-A, by
providing that ‘District Magistrate include Additional District
Magistrate of the district’. Sub-section (4) is added in Section 16
empowering the District Magistrate to call for any information for
all the stakeholders including the Board and the Committee as
and when required in the best interest of the child.
In Section 27 pertaining to Child Welfare Committee, sub-
section (8) is substituted and the provision where the District
Magistrate was authorised to conduct a quarterly review of the
functioning of the CWC, is substituted by providing that the CWC
shall submit a report to the District Magistrate in such form as
may be prescribed and the District Magistrate shall conduct a
quarterly review of the functioning of the Committee. In addition,
sub-section (10) has been substituted by empowering the District
Magistrate to be the ‘Grievance Redressal Authority’ to entertain
any grievance arising out of the functioning of the Committee and
the District Magistrate is empowered to take cognizance of the
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action of the Committee and pass appropriate order.
The amending Act also introduced an amendment to
Sections 54 and Section 55, where a specific role is assigned to
the District Magistrate authorising him to take action upon the
inspection being carried out of the institutions registered under
the Act.
18 In connection with Chapter VIII pertaining to adoption, and
which is the subject matter of challenge before us, in Section 56,
sub-section (5) has introduced the ‘District Magistrate’ as the
authority to pass an order, in absence of which any person who
takes or sends a child to a foreign country, or to take part in any
arrangement for transferring the care and custody of the child to
another person in a foreign country, is punishable as an offence.
In Section 58, which has set out the procedure for adoption by
Indian prospective adoptive parents living in India, the
application shall lie before the District Magistrate for obtaining
the adoption order by substituting the term ‘Court’ and in sub-
section (4), in place of certified copy of the order passed by the
Court, the specialised adoption agency shall act on the copy of the
order passed by the District Magistrate. Similarly, in section 59,
sub-section (7), the role of the Court is substituted by the District
Magistrate and similar is the case of sub-section (1) of Section 60.
As regards the procedure for the disposal of adoption
proceedings which determine the factors to be considered by the
Court while considering the adoption application, the ‘Court’ is
substituted by District Magistrate, who shall before issuing an
adoption order, satisfy itself that the adoption is for the welfare of
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the child; due consideration is given to the wishes of the child and
neither the prospective adoptive parents had given or agreed to
give; nor the specialised adoption agency or the parent or
guardian of the child has received or agreed to receive any
payment or reward in consideration of the adoption, except as
permitted under the Adoption Regulations. Similarly, in Sections
63 and 64, there is substitution of the word ‘Court’ by ‘District
Magistrate’.
Thus, by the Amending Act of 2021, there is substitution of
the Authority of Court by that of District Magistrate.
The statement of objects and reasons of the amending Act
reads to the following effect :-
“1. The Juvenile Justice (Care and Protection of Children) Act, 2015
(the Juvenile Justice Act) came into force with effect from the 15th
January, 2016, by repealing the Juvenile Justice Act, 2000, with a
comprehensive provision for the children alleged or found to be in
conflict with law and children in need of care and protection. The
Juvenile Justice Act has been made in pursuance of the Constitution of
India which mandates equal rights for children and also mandates upon
State, inter alia, to take suitable measures for protection of children.
The Act also fulfils the India's commitment as a signatory to the United
Nations Convention on the rights of the child, the United Nations
Standard Millennium Rules for the Administration of Juvenile Justice,
1985 (the Beijing Rules), the Hague Convention on Protection of
Children and Co-operation in respect of Inter-country Adoption (1993)
and other related international instruments.
2. Sub-section (1) of section 56 of the Juvenile Justice Act provides
that adoption shall be resorted to for ensuring right to family for the
orphan, abandoned and surrendered children, as per the provisions of
the said Act and the rules and regulations made thereunder. Section 63
of the Juvenile Justice Act stipulates that the adoption is final on the
issuance of the adoption order by the Court. Sub-section (2) of section
61 of the said Act also provides that the adoption proceedings shall be
disposed of by the court within a period of two months from the date of
filing of an application. It was observed that there is significant delay in
finalisation of adoption cases in Courts. Besides, these adoption cases
are non-adversarial in nature and to be dealt according to well laid out
process. Hence, it is proposed to culminate the adoption process at the
level of District Magistrate in the District.
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3. District Magistrate, being the Chief Executive Officer in the District,
is suitably placed to ensure effective coordination among the
stakeholders for facilitation of necessary services for children's
rehabilitation/re-integration. By further empowering District
Magistrate to deal with child protection and adoption process, it aims
to facilitate a coordinated and effective response of District
Administration to various issues pertaining to children, including
adoption.
4. The Juvenile Justice Act deals with "Petty", "Serious" and "Heinous"
categories of offences. Hon'ble Supreme Court in the matter of Shilpa
Mittal Vs. State of NCT of Delhi (Criminal Appeal No. 34 of 2020), vide
its judgment dated the 9th January, 2020 has observed that the
Juvenile Justice Act does not deal with the fourth category of offences
viz., offence where the maximum sentence is more than seven years
imprisonment, but no minimum sentence, or minimum sentence of less
than seven years is provided and treated the same as "serious offences"
under the Act.”
19 Though Mr.Kanade has placed before us the history of the
process of adoption which has emerged through various statutes
including the Adoption of Children Act 1918 Bill, which never took
the shape of a statute but the importance of the judicial system of
the adoption process was highlighted through the judgment of the
Apex Court in Lakshmi Kant Pandey vs. Union of India ( supra ).
We note that the Juvenile Justice Act, 1986 which was the initial
statute focusing on the care, protection, treatment, development
and rehabilitation of delinquent juveniles with the introduction of
Central Adoption Resource Agency (CARA) which was
constituted for regulating, monitoring and promoting adoption of
the orphan, abandoned or surrendered children, to achieve the
object of the Act, being rehabilitation of the Juveniles.
In the Juvenile Justice Act, 2000 which repealed the
Juvenile Justice Act, 1986, ‘Adoption’ was recognised as one of
the mechanisms of rehabilitation and the powers were conferred
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on the Juvenile Justice Board with the presence of the
Metropolitan Magistrate or a Judicial Magistrate First Class. It is
only in the Juvenile Justice (Care and Protection of Children)
Amendment Act, 2006, the power to give children in adoption,
was taken away from the Board and conferred on the Courts. This
provision then continued even in the Juvenile Justice Act, 2000
which assign the definite meaning to the Court and it cover Civil
Court having jurisdiction in the matters of adoption and
guardianship and include the District Court, Family Court and
City Civil Court.
The Court played a crucial role in the mechanism of
adoption, but in the background of the SOR, highlighting the
intention of the legislature to bring the change when the ‘Court’
was substituted by the ‘District Magistrate’ for the reasons,
deemed appropriate by the legislature, the said amendment is
subjected to challenge before us.
20 The foundation of the adoption system in India, which has
surfaced through provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000 which was repealed by Juvenile
Justice (Care and Protection of Children) Act, 2015, with
adoption being accepted as one of the modes of rehabilitation,
followed a child centric approach and recognised adoption as one
of the most effective mode of rehabilitation of the orphans,
abandoned and surrendered children and the whole process of
adoption was made subject to the provision of Juvenile Justice
Act and the adoption Regulations framed by the authority i.e.
Central Adoption Resource Authority constituted under Section
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68. All inter-country adoptions are carried out as per the
provisions of Juvenile Justice (Care and Protection of Children)
Act and the Regulations of CARA. The adoption process
contemplate a valid order from the Court and this provision is
now substituted by contemplating a valid order from the District
Magistrate.
From time to time, CARA which is the statutory body, have
framed Regulations governing adoption, so as to ensure that it is
in the best interest of the child. When the District Magistrate is
introduced in the Scheme involving adoption of abandoned,
orphaned and surrendered children, he is expected to discharge
his powers and functions in the same spirit, keeping in mind the
spirit of Chapter VIII being in the interest of the child.
21 Upon the amendment being introduced by the Act No.23 of
2021 with effect from 1/9/2022, the Ministry of Women and Child
Development also formulated Juvenile Justice (Care and
Protection of Children) Model Amendment Rules, 2022.
The Rules also came into force from the date of its
notification i.e. 1/9/2022 giving effect to the amendment
introduced in the Act of 2015 which assigned a specific role to the
District Magistrate at various stages in implementation of the Act
of 2015 and this included the substitution of the Authority with
whose permission the child can be given in adoption.
22 The objection on behalf of the Petitioners, is to the discharge
of the power by the ‘District Magistrate’ in place of the ‘Court’
which played a crucial role in the adoption system, which aimed
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at ensuring better interest of the child.
The apprehension expressed that the order passed by the
District Magistrate would not be capable of execution, as an
order passed by the Court and post-adoption the District
Magistrate will not be in a position to ensure that the child is in a
comfortable atmosphere and is well accommodated in the
adoptive family, according to us is completely unfounded.
It is worth to note that the Amendment of 2021 has
introduced the District Magistrate into the system as in contrast
to District Collector who have different functions in
administrative hierarchy. The District Collector is the highest
Collector in charge of Revenue administration in a District and is
responsible for overseeing issues related to land revenue,
taxation and the management of resources. In terms of the
revenue related matters, the District Collector is answerable to
the Government through the Divisional Commissioner.
As against this, the District Magistrate holds the position of
senior-most Executive Magistrate who is responsible for general
administration in the District which includes maintaining of law
and order, enforcing government policies and coordinating
various developmental activities. The District Magistrate is the
principal authority for smooth functioning of district governance
and apart from over all administration, he plays an important
role in law enforcement and its implementation at district level.
His role in the revenue administration may be restricted, but he is
cast with several responsibilities which include exercise of
judicial powers, he being a senior most Executive Magistrate. The
District Magistrate is entrusted with functions of significance in
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the Code of Criminal Procedure, 1973 and the present Bharatiya
Nagarik Suraksha Sanhita, 2023. Under Section 144 Cr.P.C. (new
Section 163 of BNSS), the District Magistrate is empowered to
issue orders to restrict public movements or assembly of 5 or
more people to prevent public disturbance. Similarly, in Statutes
like National Security Act, 1980 it is the District Magistrate who
is competent to order detention of a person to prevent him from
acting in a manner prejudicial to State security or public order
and he has the power of preventive detention. Similarly, he acts
as a licensing Authority under the Arms Act, 1959 and is
conferred with the power to grant, renew or revoke Arms and
Ammunition License.
In the proceedings under Section 107-110 of the Cr.P.C., the
District Magistrate is empowered to ensure security of good
behaviour and by demanding security and peace and as a
remanding Authority, he is authorized to detain accused in police
or judicial custody. It is not uncommon under special statute to
confer powers on the District Magistrate, which are in the nature
of quasi judicial functions and this include the power to grant
licenses for cinemas under the Cinematograph Act, 1952 and an
Authority competent to issue orders for relief and rehabilitation
under the Disaster Management Act, 2005.
Similarly the most important function discharged by the
District Magistrate is under the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007, under which the Appellate
Tribunal constituted under Section 15 is presided by an Officer
not below the rank of District Magistrate. The Appellate Tribunal
is competent to adjudicate Appeals against the orders of
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Tribunals which decides maintenance of senior citizens.
23 The apprehension expressed by the Petitioners about the
District Magistrate not being competent to deal with the adoption
process, which is purely judicial function is also dehors any
merit as the District Magistrate in various situations, exercises
quasi judicial functions and in fact he was already in the system,
as under Section 101, as the District Magistrate was exercising
the power of the Appellate forum against the orders passed by
CWC and JJB in relation to foster care and sponsorship after care.
We have no doubt in our mind that the District Magistrate
is well suited to act and assist in welfare of the children and the
Petitioners’ assumption is wrong, as it expects the sensitivity of
implementing the child placement process in the course of
adoption.
The robust mechanism which exist under the Juvenile
Justice Act, with the aid of the Authority, constituted for the said
purpose and the process of adoption being well guided by the
Statute itself, we see no difficulty in the District Magistrate
implementing the provisions of the Statute and determination of
the eligibility of the prospective adoptive parents, which is the
most significant stage in the whole process, is well guided by the
Regulations framed by CARA Authority. It is this Authority
which is fully involved into the process of adoption and it shall
act on the Home Study Report of the prospective adoptive parents
and upon finding them eligible will refer a child declared legally
free for adoption alongwith the Child Study Report and Medical
Report in the manner as provided in the Adoption Regulations
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framed by the Authority.
The whole process of adoption is well chartered by the
Statutory Authority CARA, which is constituted under Section 68
of the Act to regulate inter-country adoptions and promote in-
country adoptions and facilitate inter-state adoptions in
coordination with State agency.
24 In exercise of powers conferred upon CARA, it has framed
the Adoption Regulations, 2022 in supersession of the Adoption
Regulations, 2017 and the said Regulations which focus on the
fundamental principles governing adoption, has determined the
eligibility criteria for the prospective adoptive parents and has
also set out the procedure relating to children for adoption, which
includes the orphan or abandoned children as well as the
surrendered child. The Regulations have exhaustively provided
for the procedure to be followed which include registration and
home study of the adoptive parents and has also provided for
pre-adoption foster care by the prospective adoptive parents
within 10 days from the date of matching, after signing the pre-
adoptive foster care undertaking in the format prescribed.
In the wake of the amendment introduced in the year 2021,
Regulation 13 has clearly prescribed that the specialized adoption
agency shall file an Application with the District Magistrate of the
District through the District Child Protection Unit (DCPU) where
the child is located alongwith the relevant documents prescribed
in Schedule 9 within 10 days from the date of matching of the
child with the prospective adoptive parents and the Application
shall be filed in the prescribed format.
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The District Magistrate, shall, thereafter, hold the adoption
proceedings in-camera and dispose of the case as early as possible
not exceeding two months from the date of filing of the adoption
application by the specialized adoption agency as provided under
sub-section (2) of Section 61. Thereafter, the Agency shall obtain
certified copy of the Adoption Order from the District Magistrate
through the DCPU and forward it to the adoptive parents and is
shall also be uploaded on the designated portal, which could be
downloaded by the prospective parents. The Specialized Adoption
agency, shall, thereafter, submit an Affidavit to the District
Magistrate as per the prescribed format.
Not only this, Regulation portal also provides for follow up of
progress of adoptive child and this take care of the apprehension
expressed by Mr.Kanade that there is no mechanism of the follow
up action when the child is adopted and Regulation 14 prescribe
thus :
14. Follow-up of progress of adopted child. (1) The Specialised Adoption
Agency which has prepared the Home Study Report, shall prepare the
post-adoption follow-up report on six monthly basis for two years from
the date of pre-adoption foster placement with the adoptive parents, in
the format as provided in the Schedule XII and upload the same on the
Designated Portal along with photographs of the child within ten days
from the conduction of such report.
(2) In case the adoptive parents relocate, they shall inform the agency
which has conducted their home study and the District Child Protection
Unit of the district where they relocate.
(3) The District Child Protection Unit of the district of the current
residence of the prospective adoptive parents shall prepare the post-
adoption follow-up report and upload the same on the Designated Portal
within ten days from the conduction of such report:
Provided that first follow-up report of the adopted child shall be done
within three months from the date of pre-adoption foster care.
(4) In case of non-adjustment of both the child and the adoptive family
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with each other, the Specialised Adoption Agency or the District Child
Protection Unit shall arrange the required counselling for such
adoptive parents and adoptees or link them to the counselling services
available within the district or state within seven days with due
intimation to the State Adoption Resource Agency and the District
Magistrate:
Provided that in case of non-compliance for three consecutive post
adoption follow-ups the District Child Protection Unit shall prepare the
social investigation report and inform the Child Welfare Committee for
further action as may deem fit.
(5) Procedure of disruption- In case of disruption in in-country
adoption.-
(a) at the stage of pre-adoption foster care before filing an adoption
application, the child shall be taken back to the Specialised Adoption
Agency with information to District Child Protection Unit and State
Adoption Resource Agency;
(b) at the stage of pre-adoption foster-care after the application has
been filed with the District Magistrate through District Child Protection
Unit, the child shall be taken back by the Specialised Adoption Agency
and adoption application shall be withdrawn with prior permission
from the Child Welfare Committee with intimation to the District Child
Protection Unit and the State Adoption Resource Agency and the status
of the child on the Designated Portal shall be updated by the Specialised
Adoption Agency accordingly:
(c) where the child has been taken to another state during the adoption
process, the relocation of the child shall be coordinated by the State
Adoption Resource Agency in the state where the child is currently
residing and the State of origin.
(6) Procedure for dissolution-In case of dissolution in in-country
adoption.-
(a) In case of dissolution, the application for annulment of adoption
order shall be filed by the Specialised Adoption Agency with the District
Magistrate through District Child Protection Unit;
(b) No application should be filed until two counselling sessions have
been completed by the local Specialised Adoption Agency or District
Child Protection Unit before making any decision concerning disruption
or dissolution;
(c) Post dissolution order, the child shall become legally free for
adoption;
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(d) The Specialised Adoption Agency or the District Child Protection
Unit shall update the child's status as legally free for adoption on the
Designated Portal within three days.
(7) Where the Indian adoptive parents move with the child abroad,
within two years from the date of pre-adoption foster care, the
concerned Indian Diplomatic Mission in the country of arrival in case
of Non-Hague countries and Authorised Foreign Adoption Agencies or
Central Authorities in Hague countries, shall be intimated at least
fifteen days in advance through a written communication for the
purpose of remaining follow up reports by the adoptive parents with
their full contact details at the new place.
(8) The onus of getting the balance post-adoption follow-up is with the
adoptive parents and they have to bear the professional charges on
their own, and further the adoptive parents shall give an undertaking
to the Authority to that effect.”
25 Apart from this, there is also provision for dissolution on in-
country adoptions as the Application for annulment of adoption
order can be filed by the Specialized Adoption Agency before the
District Magistrate through DCPU and post-dissolution order, the
child shall become legally free for adoption.
In order to give efficacy to the Amendment, the Ministry of
Women and Child Development, Government of India, has also
published a brochure on adoption for the District Magistrate with
the emphasis on role and responsibilities of the District
Magistrate, by clearly providing information about the process.
The Ministry has also created a Designated OnLine Portal in form
of Child Adoption Resource Information and Guidance System
(CARINGS) for creating links through a robust fresh management
system designed to bring transparency in the adoption system
and for curtailing delay at various levels.
The Specialized Adoption Agency (SAA) is directed to
update the child pre-adoption foster care information and
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adoption application information is directed to be reflected on
CARINGS-DCPU in module where the DCPU scrutinize requisite
documents within 5 days of receipt of the documents from SAA
before forwarding case to the District Magistrate for issuance of
adoption order. The District Magistrate is directed to issue
Adoption Order within a period of two months from the date of
filing of Application with CARINGS-DM Module and District
Magistrate is also directed to generate and upload Adoption Order
from the Portal.
We find the process to be now implemented with timelines
and has made the same meaningful as expediency in passing of
the Adoption Orders is the real success of the Juvenile Justice
Act, as it intend to rehabilitate the subjects i.e. abandoned,
orphaned and surrendered children by rehabilitating them
through adoption process.
26 With the Regulations framed by CARA, governing the entire
process of adoption, being set out with all minute details, we do
not find any ground to believe that the District Magistrate will
not be in a position to exercise its role in an effective manner as
what function was entrusted to the ‘Court’ is now handed over to
the ‘District Magistrate’, who with the aid and assistance of the
Regulations framed by CARA, in exercise of the power conferred
under Clause (c) of Section 68 read with Clause (3) of Section 2
of the Juvenile Justice (Care and Protection of Children) Act,
2015, has framed the Regulations governing the whole arena of
the process of adoption which has involved various other
Agencies and has determined the eligibility of the adoptive
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parents and the availability of child for adoption being declared
free to the prospective adoptive parents by setting out the
criteria for both of them.
Apart form this, since the Affidavit filed by the Union of
India has categorically stated that upon the District Magistrate
being envisioned as Child Protection Head, as per the
recommendations of the Parliamentary Standing Committee,
appropriate training shall be imparted to the District Magistrates
and Divisional Commissioners with involvement of the Ministry
of Women and Child Development, CARA and National Institute
of Public Cooperation and Child Development (NIPCCD) and we
find that with the introduction of the said Provision in the year
2021, by this time the District Magistrates have equipped
themselves with the necessary knowledge and the niceties which
are required to be followed under the guidance of CARA in
implementing the wholesome object of giving and taking of a
child in adoption.
27 The argument that by appointment of the District
Magistrate, the doctrine of separation of powers is violated, is also
without any merit and substance as under various statutes, the
Executive Authorities are conferred with quasi judicial functions
and since it is well expected that a strict separation of powers is
neither possible nor desirable and there are some overlapping
functions, which are required to be discharged, we do not find
substance in the said argument.
As indicated by the statement of objects and reasons of the
2021 Amendment, the procedure for adoption was intended to be
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expedited and if the Parliament deemed it necessary to bring any
change in the system of adoption with an intention of expediting
the process by replacing the previous court base system, by
conferring the powers upon the District Magistrate to act as a
Competent Authority to issue final Adoption Orders and to
supervise the Adoption Agencies, check compliances and ensure
the child-base interest, we find no illegality in the said proposed
action.
28 We have noted that though the Bombay High Court had
granted stay to the transfer of pending adoption matters to the
District Magistrate, by directing that ongoing cases shall continue
in the Court, in other States the Amendment of 2021 has come
into force and has yielded success.
In light of the aforesaid discussion, since we do not find any
merit and substance in the challenge raised by the Petitioners,
both the Petitions stand dismissed.
Pending Interim Applications also stand disposed of.
At the same time, we vacate the interim order dated
10/01/2023 and permit the matters to be dealt with by the
District Magistrate.
We must also clarify that in the interregnum the orders
which are passed by the Court in adoption matters shall be
treated as legally and validly passed.
[MANJUSHA DESHPANDE, J.] [BHARATI DANGRE, J.]
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