LexSHABNAM HASHMI versus UNION OF INDIA & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2014] 2 S.C.R. 1101
SHABNAM HASHMI
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 470 of 2005)
FEBRUARY 19, 2014
[P. SATHASIVAM, CJI, RANJAN GOGOi AND
SHIVA KIRT! SINGH, JJ.]
A
B
Juvenile Justice (Care And Protection of Children) Act,
2000: ss.41 to 44, 68 - Writ petition filed under Art 32 - Prayer C
to lay down law about adoption as a fundamental right and in
alternate to Jay down guidelines about adoption of children
irrespective of religion, caste and seeking direction to the UO/
to enact optional law on the subject - Held: Petitioner admitted
that JJ Act of 2000 is a secular law that enable adoption
D
irrespective of religion and meets prayers made with petition
- Muslim Personal Law Board claimed that Islamic law does
not recognize that an adopted child is at par with a biological
one; that it allows Kafala system under which adopted child
. remains descendent of biological parents and that child
E
welfare committee should keep this in mind - The 2000 Act
allows choice of personal Jaw and is an optional legislation
and is a small step towards fulfillment of Art 44 - Choice will
remain open till a Uniform Civil Code is made to sink
conflicting faiths. afld prevalent beliefs - The question of F
adoption to be deciared a fundamental right is not ripe and
must wait its evolution till different group reach maturity - Till
then restrain must be maintained - Juvenile Justice (Care and
Protection of Children) Rules, 2007 - r.33(2) - Constitution of
India, 1950 - Article 44.
The instant writ petition was filed under Art 32. The
prayer in the writ petition was to lay down law about
adoption as a fundamental right and in alternate to lay
down guidelines about adoption of children irrespective
G
1101
H
1102
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A of religion, caste and seeking direction to the respondent
UOI to enact optional law on the subject.
Disposing of the writ petition, the Court
Held: 1. The alternative prayer made in the writ
B petition was substantially fructified by the judicial verdict
in "'Lakshmi Kant Pandey case 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 as also the Juvenile Justice
C (Care and Protection of Children) Rules promulgated in
the year 2007. Dealing with inter-country adoptions,
elaborate guidelines had been laid by the Supreme Court
to protect and further the interest of the child. A
regulatory body, i.e., Central Adoption Resource Agency
D ('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
E 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
F under the Rules framed by the states in exercise of the
Rule making power under Sec~ion 68 of the JJ Act, 2000.
[paras 2, 3] [1108-F-H; 1109-A-D]
G
*Lakshmi Kant Pandey Vs. Union of India (1984) 2 SCC
244: 1984 (2) SCR 795 - relied on.
2. In stark contrast to the provisions of the JJ Act,
2000 in force as on date, the Juvenile Justice Act, 1986
dealt with only "neglected" and "delinquent juveniles".
The provisions of the 1986 Act dealt with delinquent
H juveniles and all that was contemplated for a 'neglected·"
SHABNAM HASHMI v. UNION OF INDIA & ORS.
1103
juvenile' was custody in a juvenile home or an order A
placing such a juvenile under the care of a parent,
guardian or other person who was willing to ensure his
good behaviour 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 iitlternatively 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 is his immediate familExcerpt shown. Read the full judgment & AI analysis in Lexace.