A Hindu couple having a biological son , couple had adopted an orphan boy of 5 years , Whether the adoption of the child of same gender valid.
(yes). Payal v/s Vinay Pathak 2009 (4) RCR 401 Bombay:
Section 11of Hindu Adoptions and Maintenance Act provides that that in every adoption certain conditions must be complied with. Clauses (i) and (ii) of Section 11 are as follows :
“(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption.”
What these clauses stipulate is a prohibition on the adoption of a child of the same gender where the adoptive father or mother already have a child living at the time of the adoption..
Now, Section 40 ,Sub-section (6) Juvenile Justice Act 2000 provides that the Court may allow a child to be given in adoption (a) to a person irrespective of marital status; or (b) to parents to adopt a child of the same sex irrespective of the number of living biological sons or daughters; or (c) to childless couples. The Hindu Adoptions and Maintenance Act, 1956 and the Juvenile Justice Act, 2000 must be harmoniously construed. The Hindu Adoptions and Maintenance Act, 1956 deals with conditions requisite for adoption by Hindus. The Juvenile Justice Act of 2000 is a special enactment dealing with children in conflict with law and children in need of care and protection. While enacting the Juvenile Justice Act 2000 the legislature has taken care to ensure that its provisions are secular in character and that the benefit of adoption is not restricted to any religious or social group.
Even if there were to be a conflict between the provisions of the Hindu Adoptions and Maintenance Act, 1956 and the Juvenile Justice Act of 2000, it is the latter Act which would prevail. This is on the well settled principle that when there are two special Acts dealing with the same subject matter, the legislation which has been enacted subsequently should prevail. Where a later enactment does not expressly amend (whether textually or indirectly) an earlier enactment which it has power to override, but the provisions of the later enactment are inconsistent with those of the earlier, the later by implication amends the earlier so far as is necessary to remove the inconsistency between them.
It is possible to view the Hindu Adoptions and Maintenance Act as a special act and the Juvenile Justice Act as a general act, in which case, under general principles of statutory interpretation, the second (general) act would not impliedly amend the first (special) act. See generally Bennion ’88 : Generalia Specialibus Non Derogant. The Hindu Adoptions and Maintenance Act establishes rules for Hindus, a subclass of the overall population; since its provisions are not applicable to all Indians, it is a special act in some respects. On the other hand, the Juvenile Justice Act is a law of general applicability, in so far as it applies without respect to religious affiliation, and any child can be abandoned, surrendered, or orphaned.
