Bombay HC Clarifies Ongoing Adoptions Not Halted Amid Challenge To JJ Act Amendment

The Bombay High Court recently clarified that the ongoing adoption processes of children have not been halted by a stay order passed on January 10 in relation to a pending challenge against an amendment of the Juvenile Justice (Care and Protection of Children) Amendment Act 2021 (JJ Act).

The amendment in question grants exclusive jurisdiction to District Magistrates over adoption cases, including foreign adoptions. Prior to the amendment, civil courts were handling adoption cases.

On January 10, a bench led of Justice GS Patel stayed the implementation of the amendment regarding the proposed transfer of case papers and documents related to adoption cases from civil courts to District Magistrates.

However, it was later reported that final adoption orders for many Prospective Adoptive Parents (PAPs) and the adoption process in such cases came to a halt in Maharashtra from January 11 following the Court’s stay order.

To address this issue, the Court clarified on Friday that it has not stayed adoptions through its January 10 order. The Court clarified that it has only stayed the transfer of those cases to the District Magistrates.

“There is some misconception floating around that we have stopped foreign adoption. We will clarify this. There is no question of any ongoing or fresh adoption matters to be transferred to District Magistrate until we decide the matter (Constitutional challenge). We have not stopped adoptions. They will continue as they were happening before the amendment to the JJ Act. Civil courts dealing with adoptions must continue to do so till final disposal of this matter on July 7. Any papers which are transferred to the District Magistrates be sent back to district judges/courts,“ the bench stated.

The bench also directed that all case papers should be transferred back to the respective civil courts from the District Magistrates until the High Court makes a decision on the pending petition challenging the amendment to the JJ Act.

A writ petition was filed in the High Court seeking a stay on a communication issued on September 30, 2022, which directed the transfer of all adoption cases to District Magistrates.

On January 10, the Court effectively stayed the impact of this September communication and ordered that adoption matters pending before the courts should not be transferred to District Magistrates for adjudication. The Court also directed the courts to continue adjudicating the pending adoption matters under their jurisdiction.

However, the report highlighted that all adoption cases were transferred to the District Magistrates between September 2022 and January 10, 2023, following the communication. Due to the High Court’s stay, the District Magistrates were unable to act upon these case papers, resulting in a state of limbo for these cases.

The challenge to the amendment of the JJ Act will be heard by the High Court on July 7, 2023.