Section 41 – Adoption – Juvenile Justice (Care And Protection Of Children) Act, 2000

[(2) Adoption shall be resorted to for the rehabilitation of the children who are orphan, abandoned or surrendered through such mechanism as may be prescribed.

(3) In keeping with the provisions of the various guidelines for adoption issued from time to time, by the State Government, or the Central Adoption Resource Agency and notified by the Central Government, children may be given in adoption by a Court after satisfying itself regarding the investigations having been carried out, as are required for giving such children in adoption.

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(4) The State Government shall recognise one or more of its institutions or voluntary organisations in each district as specialised adoption agencies in such manner as may be prescribed for the placement of orphan, abandoned or surrendered children for adoption in accordance with the guidelines notified under sub-section (3):

Provided that the children’s homes and the institutions run by the State Government or a voluntary organisation for children in need of care and protection, who are orphan, abandoned or surrendered, shall ensure that these children are declared free for adoption by the Committee and all such cases shall be referred to the adopting agency in that district for placement of such children in adoption in accordance with the guidelines notified under sub-section (3)].

(5) No child shall be offered for adoption—

(a) Until two members of the committee declare the child legally free for placement in the case of abandoned children;

(b) Till the two months’ period for reconsideration by the parent is over in the case of surrendered children; and

(c) Without his consent in the case of a child who can understand and express his consent;

[(6) The Court may allow a child to be given in adoption—

(a) To a person irrespective of marital status; or

(b) To parents to adopt a child of same sex irrespective of the number of living biological sons or daughters ; or ‘

(c) To childless couples],

Comment:

Under the Act, adoption has been considered as one of the best measures for ensuring the rehabilitation and re-integration of orphaned, abandoned, neglected and abused children.

Adoption can be resorted to by institutional or non-institutional methods under this section.

Sub-section (2) empowers the Child Welfare Board to carry on necessary investigation for giving children for adoption in accordance with the guidelines issued by the State Government for this purpose.

The Bombay High Court in Robert Heijkamp and another v. Bal Anand World Children Welfare Trust, India (Mumbai, held that child of mentally ill person would be deemed to be abandoned within the meaning of Section 41 and it may be declared to be fit for being given in adoption.

However, the decision of Child Welfare Committee regarding mental health of parents of child has to be based upon determination of same by concerned Court or authorities under Mental Health Act, 1987.

Decision to declare such child as legally free for adoption would depend upon facts and circumstances of each case like whether the mental illness of parent of the child is curable, duration of such illness etc. The Court sent back the matter to State Government with these directions.

Sub-section (5) further provides that in case of an abandoned child, he cannot be offered for adoption until two members of the Committee declare that he is legally free for placement and at least a period of two months has elapsed so as to allow time for reconsideration by the parent about the surrendered child. The consent of the child is necessary for such adoption.

It is left to the discretion of the Board to allow a child to be given in adoption to parents who already have sons or daughters alive.

In the case of Robert Heijcamp & another v. Bal Anand World Children Welfare Trust, Mumbai, the question of adoption of a child by a foreigner was involved. The father (guardian) of the child was mentally unsound. The Court considered the child as ‘abandoned child’ for the purpose of Section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000, and allowed the adoption.

The Court, however, cautioned that before child being adopted by the foreigner the Children Welfare Trust must make sure that his father, i.e., parent are actually suffering from mental illness and there is no other person to look after the child. This is also necessary so that the child may not remain deprived of his rehabilitation at his tender age, which is an important stage of life.