This question was discussed by Hon'ble Supreme Court in Shabnam Hashmi vs. Union of India, i.e Whether adoption of a child is a fundamental right. In case of contradiction between personal law and secular law, what is going to be prevailed or whether caste, creed and religions affects the adoption procedure. The Fundamental Rights embodied in Part 3 of the Constitution constitute the basic human rights which are inherent in every person and such other rights which are fundamental to the dignity and well being of citizens. The Supreme Court has decreed that prospective parents irrespective of their religious background are free to adopt children after the prescribed procedure. In this case, the Supreme Court of India declared that the right to adopt a child by a person as per the provisions of the Juvenile Justice Act would prevail over all personal laws and religious codes in the country. The Hon’ble Court also stated that adoption was a matter of personal choice and there was no compulsion on any person to adopt or adopt child. The Juvenile Justice Act, 2002 defines adoption in Section 2(aa). It confers upon the adoptive parents and the child all rights, privileges and responsibilities that are attached to a normal parent child relationship.
Right of child to be adopted and that of prospective parents to adopt is not fundamental right under Article 21 of the Constitution. The court further held that all future parents, irrespective of their religious background could go ahead for adoption under the Juvenile Justice Act 2000. This is a secular act for adopting children under the prescribed procedure.
Written By: Ms. Niharika Kalra, Second Year Law Student, Punjab University
Law Intern at S. Bhambri & Associates (Advocates)