Bombay HC stays transfer of adoption cases to district magistrates under amended Juvenile Justice Act

The court says there is no harm if the existing system of courts handling adoption cases continues till the next day of hearing, February 14, and rejects the argument that the amendment was required to avoid delays in the disposal of the adoption matters.

The Bombay High Court has directed the central and state government not to transfer pending adoption proceedings to district magistrates, as mandated under the Juvenile Justice (Care and Protection of Children) Amendment Act 2021, till the next hearing on a challenge to the Act’s provisions allowing the DMs to issue adoption orders.

The high court said that till the plea is disposed of, the courts currently having such matters on their record and file should continue with the proceedings. “The safer and more prudent course of action would be to allow all the matters to be placed before a single-judge bench of the high court which is assigned to hear such matters… Those orders may continue to be passed until the challenge is finally decided,” it said Tuesday.

The court also stayed the effect and implementation of a September 30, 2022, letter issued by the commissioner of the Women and Child Department asking all courts to transfer adoption cases to district magistrates.

A bench of Justices G S Patel and S G Dige passed the interim order on a writ petition filed by advocates Nisha Pandya and Pradeep Pandya, residents of Kandivli, that challenged the constitutional validity of the 2021 amendment. The petitioners claimed that because of the amendment, which replaced “court” with “District Magistrate”, the adoption procedure would be overseen by the DM, who is an executive officer. The procedure had since 2006 been entrusted to the judiciary, they said, claiming that the amendment was made without any logical reason.

Advocate Sandesh Patil, representing the central government, submitted that the court should not stay the implementation of the amendment and that the government would file its reply to the plea.

“We do not think that the matters require to go through multiple cycles of the same arguments,” the court said, noting that “until now, at least adoption matters were with the judges of the high court and many of us have, while on the bench, handled these cases”.

The court added that while considering the interim relief, it “must bear in mind the primary objective, which is the interest of the children and infants who are to be adopted or put up for adoption, whether these are domestic or foreign adoptions, and the interests of adopted parents”.

The court noted that a single-judge bench was at present handling adoption-related matters. “This has continued for a very long period of time and nothing is shown to us to indicate why for a limited period of time of about four weeks, this should not be continued, until we finally hear the challenge,” it said. “No prejudice will be caused to any party if the existing system continues. On the contrary, the primary interest would be protected. Moreover, we are granting interim relief only until the next date and not indefinitely for a long period of time”.

The court said that it was not impressed by the arguments by the authorities that the amendment was required to avoid delays in the disposal of the adoption matters. “At least in this high court, the adoptions jurisdiction is one in which there is no backlog at all. Adjournments are almost never requested or ordered and disposals take place on a weekly basis,” it said.

The court also said that it was “mindful” that if the petitioners succeed in their plea, any orders that are passed by district magistrates would be “immediately vulnerable”.

The bench also issued a notice to the attorney-general to respond to the challenge to the amendment in the Juvenile Justice Act.

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