Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
Introduction
The intersection of adoption laws in India presents a complex legal landscape where two distinct statutory frameworks operate simultaneously—the Hindu Adoption and Maintenance Act, 1956 (HAMA) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). Recent judicial interventions, particularly the Bombay High Court's stay order on the transfer of adoption cases to District Magistrates, have brought renewed focus to the jurisdictional nuances between these parallel legal regimes. This article examines the current status of adoption procedures under both Acts, clarifying the distinct procedural pathways and jurisdictional boundaries that practitioners must navigate.
Current Status of Bombay High Court's Stay Order
The Division Bench of Justice G.S. Patel and Justice S.G. Dige's interim stay order from January 2023 remains operative as of September 2025. The Court specifically stayed the implementation of amendments under the Juvenile Justice (Care and Protection of Children) Amendment Act 2021, which sought to replace "Court" with "District Magistrate" for issuing adoption orders.
Key Clarifications from the Court:
· The stay does not halt adoption processes entirely
· Adoption proceedings continue before District Courts and High Court Single Judge benches
· Case papers transferred to District Magistrates must be returned to concerned courts
· The jurisdictional framework existing before September 2022 amendments remains operational
This judicial intervention has preserved the traditional court-centric approach to adoption procedures, maintaining the established balance between judicial oversight and administrative efficiency.
Jurisdictional Framework Under HAMA
Limited Court Intervention Principle
The Hindu Adoption and Maintenance Act operates on the foundational principle of minimal judicial intervention in family adoptions. Section 9(4) of HAMA delineates specific circumstances requiring court permission:
1. Death of both parents of the child to be adopted
2. Complete renunciation of worldly affairs by both parents
3. Abandonment of the child by both parents
4. Declaration of unsound mind of both parents by competent court
5. Unknown parentage of the child
Procedural Distinction
In normal circumstances involving interse family adoptions, particularly the adoption of a brother's child within Hindu families, the statutory framework operates without mandatory court intervention. The adoption can be legally concluded through:
· Registered adoption deed under Section 16 of HAMA
· Compliance with statutory requirements under the Act
· No requirement for CARA permission or involvement
As judicial precedent establishes: "Despite there being no requirement of seeking permission of the Court, adoption petitions are sometimes filed probably for seeking imprimatur of the Court to the adoption."
Jurisdictional Framework Under Juvenile Justice Act
Mandatory Court Orders
The JJ Act mandates compulsory adoption orders from competent courts for all cases falling within its purview. This creates a fundamentally different procedural approach:
Essential Elements:
· Institutional adoption pathway through registered adoption agencies
· CARA compliance mandatory for all proceedings
· Court order serves as primary legal validation
· Secular application across all religious communities
Scope of Application
The JJ Act specifically governs adoptions involving:
· Orphan children processed through child care institutions
· Abandoned children identified through legal procedures
· Surrendered children placed through institutional mechanisms
· Children whose biological parentage remains unknown
Comparative Analysis: Procedural Distinctions
Court Intervention Requirements
HAMA Framework
JJ Act Framework
Exception-based: Court permission required only under Section 9(4) circumstances
Rule-based: Mandatory court order for all institutional adoptions
Family-centric: Recognizes autonomous family decision-making
Institution-centric: Emphasizes state oversight and child protection
Minimal judicial oversight in normal family adoptions
Comprehensive judicial scrutiny for all proceedings
CARA Involvement
The Central Adoption Resource Authority's role differs fundamentally across both frameworks:
Under HAMA:
· No CARA involvement in family adoptions
· Direct family-to-family adoption procedures
· Registered adoption deed sufficient for legal validation
Under JJ Act:
· Mandatory CARA registration and compliance
· Institutional processing through authorized agencies
· Court order following CARA procedures
Age and Religious Limitations
HAMA Specifications:
· Children up to 15 years (subject to customary exceptions)
· Applicable exclusively to Hindu, Buddhist, Sikh, and Jain communities
· Recognition of customary practices and family traditions
JJ Act Provisions:
· Children up to 18 years
· Secular application across all religious communities
· Standardized procedures regardless of religious affiliation
Harmonious Construction Principle
The Supreme Court and various High Courts have consistently emphasized the need for harmonious interpretation of both statutory frameworks. The Kerala High Court's observation remains particularly relevant: "The Hindu Adoptions and Maintenance Act, 1956 and the Juvenile Justice Act are not in conflict with each other."
This harmonious construction principle ensures:
· Parallel operation without jurisdictional conflict
· Complementary coverage of different adoption scenarios
· Preservation of family autonomy under HAMA while maintaining child protection under JJ Act
Practical Implications for Legal Practitioners
Case Assessment Framework
Practitioners must conduct preliminary assessment to determine the applicable statutory framework:
HAMA Application Indicators:
· Hindu family seeking to adopt relative's child
· Known biological parentage
· Family-initiated adoption procedures
· Absence of institutional involvement
JJ Act Application Indicators:
· Adoption through registered agencies
· Orphan/abandoned/surrendered children
· CARA involvement in matching process
· Institutional care background
Procedural Compliance Requirements
For HAMA-governed adoptions:
· Verify compliance with statutory requirements under Sections 6-12
· Execute registered adoption deed under Section 16
· Ensure court permission if Section 9(4) circumstances exist
· Document family relationship and consent procedures
For JJ Act-governed adoptions:
· Confirm CARA registration and compliance
· Follow institutional adoption procedures
· Secure mandatory court adoption order
· Complete post-adoption follow-up requirements
Contemporary Challenges and Judicial Response
The recent amendments to the JJ Act attempting to transfer adoption jurisdiction to District Magistrates reflect ongoing tensions between administrative efficiency and judicial oversight. The Bombay High Court's intervention preserves the traditional role of courts while highlighting several contemporary challenges:
Jurisdictional Clarity
The Court's clarification that adoption processes continue before District Courts maintains established precedent while avoiding potential confusion regarding competent authority.
Procedural Consistency
By requiring the return of case papers to courts, the judgment ensures procedural consistency and prevents fragmentation of adoption proceedings across different authorities.
Constitutional Compliance
The judicial intervention reflects concerns about separation of powers and the constitutional requirement for judicial oversight in matters affecting fundamental rights.
Conclusion
The adoption law landscape in India operates through two distinct yet complementary statutory frameworks. The Hindu Adoption and Maintenance Act preserves family autonomy and traditional adoption practices within the Hindu legal framework, while the Juvenile Justice Act provides comprehensive child protection mechanisms for institutional adoptions across all communities.
The Bombay High Court's continuing stay order preserves established jurisdictional boundaries while emphasizing the need for judicial oversight in adoption procedures. For legal practitioners, understanding these parallel tracks is essential for effective representation and ensuring compliance with applicable statutory requirements.
The harmonious construction principle ensures that both frameworks operate without conflict, serving different adoption scenarios while maintaining the overarching objective of child welfare. As the legal landscape continues to evolve, practitioners must remain vigilant to jurisdictional nuances and procedural requirements specific to each statutory framework.
For the specific scenario of adopting a brother's child in a Hindu family, HAMA governs the proceedings, CARA permission is not required, and court intervention is necessary only if Section 9(4) circumstances exist. A registered adoption deed typically suffices for legal validation, emphasizing the Act's recognition of family autonomy in adoption decisions.
