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Vinay Pathak And His Wife v. Unknown, Bombay High Court, September 2009


  • Whether a Hindu couple, governed by the Hindu Adoption and Maintenance Act, 1956 can adopt a child when the already have child of their own, of the same gender, under the provisions of the Juvenile Justice Act of 2000?


  • When the child to be adopted is orphaned, abandoned or surrendered child or a child in need of care and protection as defined in Juvenile Justice Act, the bar imposed by Section 11 (i) and (ii) of Hindu Adoption and Maintenance Act does not bar the Hindu having biological child from adopting the child of same gender.


  • The Petitioners, Vinay Pathak and his wife Payal are a Hindu couple married since 2001.They are the parents of a daughter born in 2003.
  • They are also the guardians of a female child. The child had been surrendered at the nursing home by the birth mother and her spouse after executing a declaration which also had a provision about a two month period where the birth mother could reclaim the child.
  • Since the parents did not come forward, the social organisation Bal Vikas, which had previously counselled the birth parents asked the court to place the child under guardianship.
  • By 2005 the Petitioners were appointed the guardians of the child and have been the same since the last four years.
  • The petition filed seeks a declaration that the petitioners are the adoptive parents of the child with all the rights, privileges and responsibilities.


  • The Court put forward the reasoning the Hindu Adoption and Maintenance Act, 1956 and the Juvenile Justice Act of 2000 must be harmoniously construed.
  • The object of The Juvenile Justice Act, 2000 is to mainly provide “care, protection and treatment by catering to their development needs and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation”. Section 2(d) also defines the expression “child in need of care and protection.
  • Clause (v) includes within this category a child who does not have a parent and whom no one is willing to take care of or whose parents have abandoned or surrendered the child. Along with that Section 40 of the Act provides that rehabilitation and social reintegration of a child shall be carried out alternatively by (i) adoption, (ii) foster care, (iii) sponsorship and (iv) sending the child to an after care organization.
  • Also according to Section 41(2) adoption is to be resorted “for the rehabilitation of children who are orphaned, abandoned or surrendered” through such mechanism as may be prescribed. Section 41(3) empowers the Court to give children in adoption subject to satisfaction of investigations having been carried out, as are required for giving children in adoption.
  • Therefore, firstly, even though The Hindu Adoptions and Maintenance Act deals with conditions required for adoptions by Hindus, the Juvenile Justice Act is still a special enactment which deals with children in conflict with law and children in need of care and protection. This act has ensured that its secular in nature and makes sure that the benefits of adoptions are not restricted to religion or any social group.
  • So if a child does fall under the description of an orphaned, abandoned or surrendered child within the meaning of Sub-section (2) of Section 41 or a child in need of care and protection under Clause (d) of Section 2, the provisions of the Juvenile Justice (Care and Protection of Children) Act 2000 must prevail.
  • Secondly, if there is a conflict between the provisions of the two Acts, the Juvenile Justice Act will prevail since it came into force in 2000, later than the Hindu Adoptions and Maintenance Act which came out in 1956.
    Thirdly, the Juvenile Justice Act is a special act which has an overriding effect on the general provisions of the Hindu Adoptions and Maintenance Act. Even if the Hindu Adoptions and Maintenance Act is considered a special act as it deals with Personal Law, it still provides general principles when talking about adoption, which are applicable to Hindus. While the Juvenile Justice Act includes specific rules for adoption of a limited and specific section of people i.e. abandoned, surrendered or orphaned children. Therefore, a special provision acts as a modifier to the general rule, by not completely overriding it.