Bombay High Court Orders Stay On Transfer of Adoption Cases To District Magistrates, Asks Single Judge To Continue Hearing Matte

The Bombay High Court on Tuesday granted interim stay on transfer of pending adoption matters to the District Magistrates and directed the courts to continue with adjudication in such cases.

The division bench of Justice G. S. Patel and Justice S. G. Dige also issued notice to the Attorney General for India in a writ petition challenging the Juvenile Justice (Care and Protection of Children) Amendment Act 2021 to the extent that the word ‘Court’ is replaced with ‘District Magistrates’.

The court listed the petition for final disposal on February 14, 2023, at 2.30 pm.

“While considering interim relief, we must bear in mind the primary objective which is the interest of the children and infants who are to be adopted whether these are domestic or foreign adoptions. The concerns of the adoptive parents are also involved," the court said.

The court further said that if the petition succeeds, any orders passed by the District Magistrates will immediately become vulnerable.

According to the petitioners, the amendment means that an exclusive jurisdiction has been given to the District Magistrates over all adoptions, including foreign adoptions. The petition sought a stay on a letter written by Commissioner of Women and Child Development, Pune on September 30, 2022 to the Bombay HC Registrar for transfer of adoption matters to District Magistrates.

Currently, the High Court Single Judges handle adoption matters and no complaint about the handling of the cases has been shown, the court said.

"The safer and more prudent course of action would be to allow all matters to be placed before the learned Single Judge of this Court who is assigned those matters. Those orders may be continued to be passed until the challenge is finally decided," said the court.

This practice has continued for a long time, and nothing indicates it shouldn’t be continued for about 4 weeks till the final hearing of the petition, the court said further. No prejudice will be caused to any party if the existing system continues, it added.

"We have yet to see the justification for the amendment. The matter has been pending since October 2022. We are now told that there should be no stay on the implementation of the amendment and that the Government will file its reply. We do not think that the matters require to go through multiple cycles of the same arguments," said the court.

The court was not impressed by the argument of delay in disposal of cases. “…at least in this High Court, the adoption 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 added.

Case no. – Writ Petition No. 32065 of 2022

Case Title – Nisha Pradeep Pandya alias Nisha Amit Gor & Anr. v. Union of India & Ors

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