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BOMBAY HIGH COURT WAIVES OFF THE 2 YEARS PERIOD BETWEEN ORDER OF GUARDIANSHIP AND PETITION FOR ADOPTION

 

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Written by- Shajeeda Tajdeen

The Bombay High Court held that period of two years that was required under the the reported Manuel D’Souza decision of Justice FI Rebello of the Bombay High Court in 1999, was a constant and unalterable rule which has no statutory backing.

Justice GS Patel held the same while entertaining a petition filed by the adoptive parents of a 7 year old boy who was under the custody of his adoptive mother Devyani. The custody of the boy was transferred to the adoptive mother by the biological mother of the child. Later on, the adoptive mother married Mayur in October 2016 and by virtue of this marriage Mayur acquired the title of being called as the adoptive father of the 7 year old boy. Subsequently, the couple had filed a guardianship petition for the minor who was six and a half years old during the time of the marriage. The order in the above mentioned petition was passed on 17th January 2018. After the pronouncement of the order, the guardianship petition was followed by an adoption petition.

While pronouncing its verdict in the adoption petition the Court noticed that couple had provided an undertaking wherein they had agreed to deposit to Rs. 1 lakh in the name of the minor along with a proof of investment for the same. The Court also considered the adoption home study report dated 13th April 2017, in which it was recommended that adoptive parents and the surrounding in which the child would grow were positive for the child’s development. Apart from the first report there was also a latest report dated 8th February 2018 which was equally positive in nature.

Justice Patel also scrutinized the judgement in Manuel D’souza and stated that said judgement was an elaborated discussion on numerous aspects of human rights, the status of parents and the compulsory waiting period of 2 years were all unreasonable. He stated that “I am unable to find any specific reasoning why the period should be two years and neither more nor less. I can only presume, and I think it is reasonable to so presume, that the two-years and neither more nor less. I can only presume, and I think it is reasonable to so presume, that the two-year period between the guardianship order and an adoption petition was thought necessary so that the Court could, in a given case, correct course and make perhaps a different order if it was found, for instance, that an adoption was inappropriate. As a matter of fact, I know of no case where an adoption has actually been refused after a guardianship order.”

The Court was also of the opinion that “In matters of education, things have reached an absurd and even impossible pass where a child has to be registered for admission almost at birth and certainly well before the child is able to speak or walk. So competitive is the race for admission and so difficult is the process that the child’s entire educational future is often imperilled merely for want of early registration. Government benefits, both financial and social, are equally crucial. Perhaps two or more decades ago these considerations of digital ids, early admissions and the pressure and competition to gain admission had not yet become as severe or pronounced as they are today.”

The court also pointed out the importance of identity proof in a living person’s life. The Court also stated that every parent in today’s world is expected to have various documents in all the walks of life, which helps them prove and establish their and their child’s birth and identity along with their parentage.

Keeping in view all the above factors the Court decided to waive off the two-year period mandated the Manuel D’Souza decision in the interest of the minor.

Finally, the Court concluded that rule mentioned in the Manuel D’Souza report was not inflexible and was always open for changes as per the requirement of the case. Because the ultimate goal of adoption and guardianship is to benefit the child and the interest of the Child is of paramount importance. It is also stated that Court of justice can never be too rigid in its approach specifically when the fate of a child is in question.

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