WRIT PETITON (CIVIL) No.

__________/20__

IN THE SUPREME COURT OF INDIA

PETITIONER:-
SHABNAM HASHM
Versus

RESPONDENTS:-

UNION OF INDIA & Ors

***
Writ Petition under article 32 of Constitution of India
***

To
The Hon'ble Chief Justice and His other companion Judges of the Supreme Court
Of India.

MAY IT PLEASE YOUR LORDSHIPS:

The humble petitioner most respectfully submits as under:-

1. Recognition of the right to adopt and

to be adopted as a fundamental right
under Part-III of the Constitution is
the vision scripted by the public
spirited individual who has moved this
Court under Article 32 of the
Constitution. There is an alternative
prayer requesting the Court to lay down
optional guidelines enabling adoption
of children by persons irrespective of
religion, caste, creed etc. and further
for a direction to the respondent Union

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of India to enact an optional law the

prime focus of which is the child with
considerations like religion etc.
taking a hind seat.

FACTS OF THE CASE

1. The aforesaid alternative prayer made
in the writ petition appears to have
been substantially fructified by the
march that has taken place in this
sphere of law, gently nudged by the
judicial verdict in Lakshmi Kant Pandey
Vs. Union of India[1] and the
supplemental, if not consequential,
legislative innovations in the shape of
the Juvenile Justice (Care And
Protection of Children) Act, 2000 as
amended in 2006 (hereinafter for short
‘the JJ Act, 2000) as also The Juvenile
Justice (Care and Protection of
Children) Rules promulgated in the year
2007 (hereinafter for short ‘the JJ
Rules, 2007’).
2. The alternative prayer made in the
writ petition may be conveniently dealt
with at the outset.
The decision of this Court in Lakshmi
Kant Pandey (supra) is a high watermark
in the development of the law relating
to adoption. Dealing with inter-country
adoptions, elaborate guidelines had

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been laid by this Court to protect and

further the interest of the child. A
regulatory body, i.e., Central Adoption
Resource Agency (for short ‘CARA’) was
recommended for creation and
accordingly set up by the Government of
India in the year 1989. Since then, the
said body has been playing a pivotal
role, laying down norms both substantive
and procedural, in the matter of inter
as well as in country adoptions. The
said norms have received statutory
recognition on being notified by the
Central Govt. under Rule 33 (2) of the
Juvenile Justice (Care and Protection of
Children) Rules, 2007 and are today in
force throughout the country, having
also been adopted and notified by
several states under the Rules framed by
the states in exercise of the Rule
making power under Section 68 of the JJ
Act, 2000.

ISSUED RAISED

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It is contended that Islamic Law does

not recognize an adopted child to be
at par with a biological child, But
it’s a violation of Article 44 of
constitution of India which says laws
of land has to get priority over
personal law.

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ARGUMENTS RAISED

1. A brief outline of the statutory

developments in the concerned sphere may
now be sketched.
In stark contrast to the provisions of
the JJ Act, 2000 in force as on date,
the Juvenile Justice Act, 1986
(hereinafter for short ‘the JJ Act,
1986’) dealt with only “neglected” and
“delinquent juveniles”. While the
provisions of the 1986 Act dealing with
delinquent juveniles are not relevant
for the present, all that was
contemplated for a ‘neglected juvenile’
is custody in a juvenile home or an
order placing such a juvenile under the
care of a parent, guardian or other
person who was willing to ensure his
good behavior during the period of
observation as fixed by the Juvenile
Welfare Board. The JJ Act, 2000
introduced a separate chapter i.e.
Chapter IV under the head
‘Rehabilitation and Social
Reintegration’ for a child in need of
care and protection. Such
rehabilitation and social reintegration
was to be carried out alternatively by
adoption or foster care or sponsorship
or by sending the child to an after-care
organization. Section 41 contemplates
adoption though it makes it clear that
the primary responsibility for
providing care and protection to a child

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is his immediate family. Sections 42, 43

and 44 of the JJ Act, 2000 deals with
alternative methods of rehabilitation
namely, foster care, sponsorship and
being looked after by an after-care
organization.
2. The JJ Act, 2000, however did not
define ‘adoption’ and it is only by the
amendment of 2006 that the meaning
thereof came to be expressed in the
following terms:
“2(aa)- “adoption” means the process
through which the adopted child is
permanently separated from his
biological parents and become the
legitimate child of his adoptive parents
with all the rights, privileges and
responsibilities that are attached to
the relationship”
3. In fact, Section 41 of the JJ Act,
2000 was substantially amended in 2006
and for the first time the
responsibility of giving in adoption was
cast upon the Court which was defined by
the JJ Rules, 2007 to mean a civil court
having jurisdiction in matters of
adoption and guardianship including the
court of the district judge, family
courts and the city civil court. [Rule
33 (5)] Substantial changes were made in
the other sub-sections of Section 41 of
the JJ Act, 2000. The CARA, as an
institution, received statutory
recognition and so did the guidelines
framed by it and notified by the Central
Govt. [Section 41(3)].
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4. In exercise of the rule making power

vested by Section 68 of the JJ Act,
2000, the JJ Rules, 2007 have been
enacted. Chapter V of the said Rules
deal with rehabilitation and social
reintegration. Under Rule 33(2)
guidelines issued by the CARA, as
notified by the Central Government under
Section 41 (3) of the JJ Act, 2000, were
made applicable to all matters relating
to adoption. It appears that pursuant to
the JJ Rules, 2007 and in exercise of
the rule making power vested by the JJ
Act, 2000 most of the States have
followed suit and adopted the guidelines
issued by CARA making the same
applicable in the matter of adoption
within the territorial boundaries of the
concerned State.
Rules 33(3) and 33(4) of the JJ Rules,
2007 contain elaborate provisions
regulating pre-adoption procedure i.e.
for declaring a child legally free for
adoption. The Rules also provide for
foster care (including pre-adoption
foster care) of such children who cannot
be placed in adoption & lays down
criteria for selection of families for
foster care, for sponsorship and for
being looked after by an aftercare
organisation. Whatever the Rules do not
provide for are supplemented by the CARA
guidelines of 2011 which additionally
provide measures for post adoption
follow up and maintenance of data of
adoptions.

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5. It will now be relevant to take note

of the stand of the Union of India. Way
back on 15th May, 2006 the Union in its
counter affidavit had informed the Court
that prospective parents, irrespective
of their religious background, are free
to access the provisions of the Act for
adoption of children after following the
procedure prescribed. The progress on
the ground as laid before the Court by
the Union of India through the Ministry
of Women and Child Development
(respondent No. 3 herein) may also be
noticed at this stage. The Union in its
written submission before the Court has
highlighted that at the end of the
calendar year 2013 Child Welfare
Committees (CWC) are presently
functioning in a total of 619 districts
of the country whereas State Adoption
Resource Agencies (SARA) has been set up
in 26 States/Union Territories;
Adoption Recommendation Committees
(ARCs) have been constituted in 18
States/Union Territories whereas the
number of recognized adoption
organizations in the country are 395.
According to the Union the number of
reported adoptions in the country from
January, 2013 to September, 2013 was
19884 out of which 1712 cases are of
inter-country adoption. The third
respondent has also drawn the attention
of the Court that notwithstanding the
time schedule specified in the
guidelines of 2011 as well as in the JJ
Rules, 2007 there is undue delay in
processing of adoption cases at the
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level of Child Welfare Committees (CWS),

the Adoption Recommendation Committees
(ARCs) as well as the concerned courts.
6. In the light of the aforesaid
developments, the petitioner in his
written submission before the Court,
admits that the JJ Act, 2000 is a
secular law enabling any person,
irrespective of the religion he
professes, to take a child in adoption.
It is akin to the Special Marriage Act
1954, which enables any person living in
India to get married under that Act,
irrespective of the religion he follows.
JJA 2000 with regard to adoption is an
enabling optional gender-just law, it is
submitted. In the written arguments
filed on behalf of the petitioner it has
also been stated that in view of the
enactment of the JJ Act, 2000 and the
Amending Act of 2006 the prayers made in
the writ petition with regard to
guidelines to enable and facilitate
adoption of children by persons
irrespective of religion, caste, creed
etc. stands satisfactorily answered and
that a direction be made by this Court
to all States, Union Territories and
authorities under the JJ Act, 2000 to
implement the provisions of Section 41
of the Act and to follow the CARA
guidelines as notified.
7. The All India Muslim Personal Law
Board (hereinafter referred to as ‘the
Board’) which has been allowed to
intervene in the present proceeding has

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filed a detailed written submission

wherein it has been contended that under
the JJ Act, 2000 adoption is only one of
the methods contemplated for taking care
of a child in need of care and
protection and that Section 41
explicitly recognizes foster care,
sponsorship and being look after by
after-care organizations as other/
alternative modes of taking care of an
abandoned/surrendered child. It is
contended that Islamic Law does not
recognize an adopted child to be at par
with a biological child. According to
the Board, Islamic Law professes what is
known as the “Kafala” system under which
the child is placed under a ‘Kafil’ who
provides for the well being of the child
including financial support and thus is
legally allowed to take care of the
child though the child remains the true
descendant of his biological parents and
not that of the “adoptive” parents. The
Board contends that the “Kafala” system
which is recognized by the United
Nation’s Convention of the Rights of the
Child under Article 20(3) is one of the
alternate system of child care
contemplated by the JJ Act, 2000 and
therefore a direction should be issued
to all the Child Welfare Committees to
keep in mind and follow the principles
of Islamic Law before declaring a muslim
child available for adoption under
Section 41(5) of the JJ Act, 2000.
8. The JJ Act, 2000, as amended, is an
enabling legislation that gives a
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prospective parent the option of

adopting an eligible child by following
the procedure prescribed by the Act,
Rules and the CARA guidelines, as
notified under the Act. The Act does not
mandate any compulsive action by any
prospective parent leaving such person
with the liberty of accessing the
provisions of the Act, if he so desires.
Such a person is always free to adopt or
choose not to do so and, instead, follow
what he comprehends to be the dictates
of the personal law applicable to him.
To us, the Act is a small step in
reaching the goal enshrined by Article
44 of the Constitution. Personal beliefs
and faiths, though must be honored,
cannot dictate the operation of the
provisions of an enabling statute. At
the cost of repetition we would like to
say that an optional legislation that
does not contain an unavoidable
imperative cannot be stultified by
principles of personal law which,
however, would always continue to govern
any person who chooses to so submit
himself until such time that the vision
of a uniform Civil Code is achieved. The
same can only happen by the collective
decision of the generation(s) to come to
sink conflicting faiths and beliefs that
are still active as on date.
9. The petitioner has also prayed for a
declaration that the right of a child to
be adopted and that of the prospective
parents to adopt be declared a
fundamental right under Article 21 of
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the Constitution. Reliance is placed in

this regard on the views of the Bombay
and Kerala High Courts in In re: Manuel
Theodore D’souza[2] and Philips Alfred
Malvin Vs. Y.J.Gonsalvis & Ors.[3]
respectively. The Board objects to such
a declaration on the grounds already
been noticed, namely, that Muslim
Personal Law does not recognize adoption
though it does not prohibit a childless
couple from taking care and protecting
a child with material and emotional

PRAYER

1. The petitioner has prayed for a

declaration that the right of a
child to be adopted and that of the
prospective parents to adopt be
declared a fundamental right under
Article 21 of the Constitution.

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2. Any other appropriate order or

direction or relief which their
Hon'ble Court deems fit and proper,
may kindly be passed in favor of the
petitioner.

COUNSEL FOR THE PETITONER

VERIFICATION

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I, the above-named deponent solemnly

affirms that the contents of my above
affidavit are true and correct to my
personal knowledge. Nothing has been
suppressed and no part of it is false.
MAY GOD HELP ME.

DEPONENT

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