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    Apex Court observes that children are 'supremely important national asset'

    Date : 27/10/1999

    Two couples, Indian citizens, professing the Christian faith, applied to this Court for being appointed as guardians under the Guardians & Wards Act. In the course of the proceedings they amended their petition, to seek a prayer that the children are 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 & Maintenance Act, 1956.

    Some of the issues are:

    • Does an abandoned or orphaned or destitute child has a right to a family, a name and nationality as a part of the right to life?
    • Is the right of being adopted a fundamental right guaranteed to a child by Article 21 of the Constitution?
    • Can the State deny to an orphaned, abandoned or destitute child the right to be adopted because of its constitutional failure to enact legislation to give effect to Entry 5 of List III of the Seventh Schedule to the Constitution of India
    • Whether a married childless couple has the fundamental right to adopt a child?
    • Is adoption purely a part of personal law?
    • If the right to adopt is a fundamental right, can Civil Courts enforce this right, in the absence of legislation and/or administrative instructions having the force of law?
    • Can this Court in exercise of the power conferred on it under Clause 17 of the Amended Letters Patent give a child in adoption?

    In India the only existing legislation on Adoption is the Hindu Adoption and Maintenance Act, 1956. Non-Hindus can only avail of the Guardianship & Wards Act, 1890 and hence Non-Hindus can t adopt under any statute.

    The court in the said case referred to the case of Lakshmi Kant Pandey v. Union of India, of the Supreme Court wherein it had observed that children are “supremely important national asset” and the future well being of the nation depends on how its children grow and develop. From the judgment it was apparent that it was referable to Article 21, as the petition was under Article 32 and reference to Article 15(3) and 24 were in aid thereof. The Court accepted the right to a home, a name and a family as a part of the “right to life”.

    While dealing with a similar issue which had arisen as here, the Kerala High Court in the case of Philips Allred Malvin v. Y.J. Gonsalvis and others, while considering the Canon Law as applicable to various denominations of Christians, has held that the right of the couple to adopt a son is a constitutional right guaranteed under Article 21 as the right to life includes those things which make life meaningful.

    Held: The right of the orphaned, the abandoned, the destitute and/or similarly situated child has now been recognized as a part of his fundamental right founded in Article 21, namely the right to life. Once such a right has been traced the child cannot be denied the right to be adopted.

    Once the economic aspect and the burden on the State is discharged the Article 21 must stand tall and reach to Article 39(f) of the Constitution. The Court observed that if so read the right of the child to be adopted and consequently to have a home, a name and a nationality has to be considered as part of his right to life.

    The Court also placed on record Court’s appreciation of all Counsel the services rendered by Advocates, Colin Gonsalves, Mihir Desai, Nandita Chickermane, Ishwari Prasad Bagaria, Flavia Agnes and Lalita Raj, who prepared compilation consisting of material and case law on the subject. Asha Bajpai, Author of “Adoption Law and Justice to the child”, Indian Council for Social Welfare and the various adoption agencies who assisted the Court, Indian Council for Social Welfare.

    Read the judgement here.
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