New Delhi: The Supreme Court on Monday refused to entertain a plea seeking guidelines for the safety of children adopted under the Hindu Adoption and Maintenance Act (HAMA) and said that it would amount to legislation.
The top court observed that in some religious beliefs when a man cannot have a child he goes for adoption so as to ensure proper last rites.
A bench of Justices SA Bobde and BR Gavai said that it cannot entertain the plea for framing of guidelines as it would amount to legislating.
Advocate Abhishek Jebaraj, appearing for the petitioner, 'Families of Joy Foundation', a non-profit organisation, said that protection granted under the Juvenile Justice Act needs to be extended to adoptions under the Hindu Adoption and Maintenance Act, 1956.
He said directions need to be issued for the safety of children adopted under the HAMA or the children could be used in human trafficking.
Jebaraj said that under HAMA the requirements are very simple and by a registered deed between two parties adoption takes place.
The bench then asked the counsel to explain as to what is wrong with the adoption mechanism.
He said there are no background checks on adoptive parents like financial condition, physical condition, no report on condition of the child, no medical report on the child, no counselling, no complaint mechanism and no follow up.
The bench said, "We cannot interfere in existing adoption mechanism. If you are saying that this mechanism could encourage human trafficking, then there are courts or appropriate forums, which could deal with the issue. We do not see any wrong in it. Framing of guidelines would amount to legislation which we cannot do".
Jebaraj told the court that under the Juvenile Justice Act, no male can adopt a girl child but under HAMA a 70-year-old man can adopt a five-year-old girl.
"There are some religious ethos under which if a man finds that he cannot have a child, then he can go for adoption to have his heir, who could perform his last rites," the bench said and dismissed the plea.
The petition also sought guidelines to ensure checks and balance under HAMA, if protection granted under the Juvenile Justice Act is not extended.
It said that procedure for adoption under the Juvenile Justice Act is monitored by the state and regulated and streamlined by the authority defined under the JJ Act, the procedure for adoption under HAMA is lax, having no guidelines or oversight provisions.
"This has resulted in the creation of an extremely perilous environment for the adoption of children, even enabling child traffickers to develop a modus operandi of unethical, illegal and dangerous adoptions that are entirely unregulated," the plea said.
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