The Bombay High Court on January 13, 2012, in the case of Indian Association for Promotion of Adoption & Child Welfare v. Unknown, has held that adoptive parents are entitled to adopt a child of the same sex irrespective of the fact that they already have a living adoptive child of the same sex.
Background
In this case, the petitioner moved the court to seek permission to give a female minor in adoption to the proposed adoptive parents. The proposed adoptive father was a person of Indian origin and holds a PIO Card. The proposed adoptive mother was an Overseas Citizen of India registered at London. The proposed adoptive parents have already adopted one female child in the year 2008 from India, now they want to adopt a second female child.
Issue
A short question that came up for consideration in this petition was: Whether a couple, who already has adopted one girl child, is entitled to adopt another girl child under the Juvenile Justice (Care and Protection of Children) Act, 2000?
Findings
Referring to Clause (b) of Sub-section (6) of section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000, the court observed that the Act permits parents to adopt a child of the same sex irrespective of number of living biological sons or daughters. It does not however expressly permit parents to adopt a child of the same sex irrespective of number of living adoptive children (sons or daughters) of the same sex.
A single judge Bench of Justice D.G. Karnik said In my view clause (b) of sub-section (6) of section 41 of the Juvenile Justice Act is permissive and not restrictive. It permits parents to adopt a child of the same sex even if they have a living biological child of the same sex. It is often thought that a subtle differentiation may be made by the parents between a biological child and an adoptive child of the same sex. The legislature has therefore expressly permitted adoption of a child of the same sex even if the parents have a biological child or children of the same sex living on the date of adoption. Section 6(b) or any other provision of the Juvenile Justice Act does not prevent adoption of a child where the adoptive parents have another living adopted child of the same sex.
Taking into consideration precedents where the court allowed adoption of a child even if the proposed adoptive parents, or person in case of an adoption by an individual, already have a living adopted child of the same sex, the court held that the adoptive parents are entitled to adopt a child of the same sex irrespective of the fact that they already have a living adoptive child of the same sex.
Thus the court allowed the petition and granted permission for the adoption of the minor female child.
