In an effort to tackle the delay in issuing adoption orders by courts, which are supposed to dispose such cases within two months from the date of filing, the Ministry of Women and Child Development plans to amend the Juvenile Justice (JJ) Act, 2015. It has proposed empowering the executive magistrate, instead of the court, to issue orders under the adoption proceedings.
According to the JJ Act, once an adoption order is issued by a court, the child becomes the son/daughter of the adoptive parents for all purposes from the date on which the adoption order takes effect. Further, all ties of the child and his or her biological family stand severed and are replaced by those created by the adoption order.
Though Section 61 (2) of the JJ Act states that the ‘adoption proceedings shall be held in camera and the case shall be disposed of by the court within a period of two months from the date of filing’, a letter by the Ministry to State governments notes that a number of adoption proceedings are getting delayed, some even pending for more than two years.
Proposing an amendment to reverse this, the Ministry’s order states that ‘any matter pending before any court pertaining to adoption shall be transferred to the executive magistrate having jurisdiction over the area to entertain such matters if it was instituted or filed for the first time after the amendment’.
The Ministry, which plans to place its proposal in the ongoing session of Parliament, has also sought responses from the States in a week’s time, failing which it will be assumed that the State is agreeable to the amendment.
Objections to the proposal
The proposed move has not gone down well among legal experts as well as those working in the area of child rights.
Swagata Raha, a Bengaluru-based legal researcher, said the executive magistrate’s roles is defined as ‘administrative’ in nature. “But the process of issuing orders under adoption proceedings is a judicial exercise to see if all the adoption procedures are followed and, therefore, we believe it would be more appropriate if a judicial authority decides this,” she said. Citing that the adopted child is legally entitled to property, she said the proposed amendments could have implications in this regard.
Nina Nayak, former chairperson of the Karnataka State Commission for the Protection of Child Rights, and an adoptee parent, said while the intent is good, the execution of this order may not be in the best interest of the child. "A district magistrate is already overburdened with several responsibilities and may not be in a position to look at this in detail. Besides, s/he may not have the legal acumen for carrying out these proceedings," she said.
Instead of this, she suggested wider consultations with magistrates and an effort to understand the challenges and the reality on the ground.
Another expert pointed out that there is a need to enquire into various processes of adoption and ensure that there is nothing illegal in the adoption, look at the home study reports of the specialised adoption agency to examine if the family was ‘physically fit, financially sound, mentally alert and highly motivated to adopt a child’; and expressed scepticism if a district magistrate could look into all these factors, and sought to know where one can question an illegal adoption.
