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REGISTERED No. D-(D)-72

The Gazette of India

EXTRAORDINARY

PART II—Section 2

PUBLISHED BY AUTHORITY

No. 57] NEW DELHI, FRIDAY, AUGUST 20, 1976/SRAVANA 29, 1898

Separate paging is given to this Part in order that it may be filed as a separate compilation.

RAJYA SABHA

The following Report of the Joint Committee of the Houses on the Bill to provide for the adoption of children and for matters connected therewith, was presented to the Rajya Sabha on Friday, the 20th August, 1976:—

COMPOSITCON OF THE COMMITTEE

Shri Bijoy Chandra Bhagavati—Chairman

MEMBERS

2. Shri Nageshwar Prasad Shahi

3. Shrimati Margaret Alva

4. Shrimati Saroj Khaparde

5. Prof. Ramlal Parikh

6. Shri S. Kumar an

7. Shri V- V. Swaminathan

(1127)

8. Shri Todak Basar

9. Shrimati Sushila Shankar Adivarekar

10. Shri Bhaiya Ram Munda

11. Shri M. R. Krishna

12. Shri Prakash Vir Shastri

13. Shri Maqsood Ali Khan

14- Shri Shankar Lal Tiwari

15. Shrimati Lakshmi Kumari Chundawat

Lok Sabha

16. Shri S. R. A. S. Appalanaidu

17 Shri Shiv Kumar Shastri

18. Shri Lambodar Baliyar

19. Shri Dhainidhar Basumatari

20. Shri Shyama Prasanna Bhattacharyya

21. Dr. (Stilt.) Sarojini Mahishi

22. Shri Anant Prasad Dhusia

23. Shri Varkey George

24. Shrimati Marjorie Godfrey

25. Shri H. R. Gokhale

26. Shri Giridhar Gomango

27. Shri Md. Jarnilurrahman

28. Shri M. R. Lakshminarayanan

29. Shrimati Mukul Banerji

30. Shri Mohan Raj

31. Shrimati Shakuntala Nayar

32. Shri Manikrao Palodkar

33 Shri Krishna Chandra Pandey

34. Shri Ram Bhagat Paswan

35. Shri S. B. Patil

36. Shri K. Kodanda Rami Reddy

37. Shri N. K. Sanghi

38. Shri Sakti Kumar Sarkar

39. Shri Shafquat Jung

40 Shri Biswanarayan Shastri

41- Shri Dharamgaj Singh

42. Shri Somehand Solanki

43. Shri S. B. Thakre

44. Shri Bhola Manjhi

45. Shri Niti Raj Singh Chaudhury

REPRESENTATIVES or THE MINISTRY OF LAW, JUSTICE

AND COMPANY AFFAIRS

Shri R. V. S. Peri Sastri, Joint Secretary and Legislative Counse

Shri A. P. Pandey, Deputy Legislative Counsel

SECRETARIAT

Shri Sudarshan Aggarwal, Additional Secretary

Shri R. K. Mazumder, Senior Legislative Committee Officer

REPORT OF THE JOINT COMMITTEE

1. the Chairman of the Joint Committee to which the Bill* to provide for the adoption of children and for matters connected therewith was referred, having been authorised by the Joint Committee to submit the Report on its behalf, present this Report of the Committee with the Bill, as amended by the Committee, annexed thereto.

2. The Bill was introduced in the Rajya Sabha on the 1st June, 1972. The motion for reference of the Bill to a Joint Committee of the Houses was moved by Shri Niti Raj Singh Chaudhury, the then Minister of State in the Ministry of Law and Justice on the 1st August, 1972, and was adopted by the House on the same day.

3. The Lok Sabha concurred in the motion on the ,26th August, 1972.

4. The Message from the Lok Sabha was reported to the Rajya Sabha

on the 26th August, 1972.

5. The Committee held 57 sittings in all. Of these, five sittings (on 6th, 7th, 8th, 9th and 11th June, 1973) were held at Bombay; three sittings at Ernakulam (on 22nd, 23rd and 25th June, 1973); three sittings at Hyderabad (on 24th, 25th and 26th September, 1973); four sittings at Calcutta (on 17th, 18th, 19th and 21st January, 1974),; four sittings at Jorhat (on 5th, 6th, 7th and 8th June, 1974); five sittings at Panaji, Goa (on 28th, 29th, 30th, 31at October, and 1st November, 1974)* and one sitting each at Raipur and Durg in Madhya Pradesh (on 3rd and 8th February, 1975, respectively), with the permission of the Chairman, Rajya Sabha, to hear oral evidence from witnesses.

6. The Committee also held informal discussions at Kohima (Nagaland) and Imphal (Manipur) on 9th and 11th June, 1974, respectively and at Dantewara and Jagdalpur in Madhya Pradesh on 5th and 6th February, 1975, respectively. The points that emerged out of these discussions have been summed up in the Annexure! to this Report.

•Published in Part II, Section 2, Gazette of India, Extraordinary, dated the

1st June, 1972.

tNot printed in th* Gazette.

7. At its first sitting held on the 2nd September, 1972, the Committee decided that a Press Communique be issued inviting opinions from various individuals, associations and public bodies interested in the subject matter ol the Bill and advising them to send memoranda thereon to the Rajya Sabha Secretariat by the 7th October, 1972 which date was subsequently extended upto the 10th November, 1972. The Committee also decided to call witnesses ior giving oral evidence on the Bill and authorised the Chairman to decide, after examining the Memoranda, as to who might be invited for the purpose. The Chairman requested Members also to suggest names of persons or associations, etc. whom they would like to be invited to give oral evidence before the Committee. Besides this, the Committee decided that the following be approached for giving their views on the Bill: —

(i) High Court Ear Association;

(ii) State Bar Councils;

(iii) Attorney-General of India;

(iv) Advocates-General of States;

(v) State Governments for obtaining the views of the Magistrates of the Children's Courts; and

(vi) Such other organisations, jurists and individuals whose names may be suggested by the Members of the Committee.

8. 144 Memoranda containing views, comments, suggestions, resolutions, etc. on the provisions and various aspects of the Bill were received by the Committee from several individuals, organisations, etc. Besides these, the Committee also received a number of letters, telegrams, etc. mostly from Muslim individuals and associations on the question of applicability of the provisions of the Bill to persons governed by the Muslim Personal Law.

9. The Committee heard the evidence tendered by 147 witnesses.

10. The Committee decided that the oral evidence tendered before it might be laid on the Table in both Houses, and a set of the Memoranda received by the Committee from various associations, etc. might be placed in the Parliament Library, after the Report is presented, for reference by Members of Parliament.

11. The Committee which was constituted during the Eighty-first Session of the Rajya Sabha was to present its Report to the House by the last day of the first week of the Eighty-second Session of the Rajya Sabha. The Committee was, however, granted extension of time, first, upto the first day of the Eighty-third Session; second, upto the first day of the last week of the Eighty-sixth Session; third, upto the last day of the Eighty-ni^th Session; fourth, upto the last day of the Ninety-second ^es.ion- filth, upto the last day of the first week of the Ninety-fourth

Session; sixth, upto the last day of the Ninety-sixth Session and last upto the last day of the present (Ninety-seventh Session) of the Rajya Sabha.

12. The Committee considered and adopted the Draft Report at its sitting held on the 12th August, 1976.

13. The principal changes suggested by the Committee in the Bill and the reasons therefor are set out in the succeeding paragraphs of this Report: —

Clause 2

Sub-clause (c).—This sub-clause defines the expression "district court". The Bill seeks to vest the jurisdiction to make adoption orders in district courts. The district courts are not easily accessible to people in the rural areas. The Committee feels that as far as possible the forum for making adoption orders should be within easy reach of all sections of ,the population and that lower courts should also have jurisdiction to make adoption orders. At the same time, the Committee is of the opinion that as the jurisdiction to make adoption orders is a new type of jurisdiction, only lower courts presided over by experienced judges should be entrusted with the jurisdiction. Further, if the presiding officer of a lower court is not sufficiently experienced, it might become necessary to exclude from his jurisdiction special typesi of cases, such as, provisional adoptions by foreigners or adoption of orphans or children in institutions. The Committee, has, therefore, amended the definition of district court to enable the Central Government to vest the jurisdiction to make adoption orders in lower courts subject to such conditions and restrictions as the Central Government may deem fit.

Sub-clause (e).—This sub-ciaus; has been re-drafted to bring the same in line with the new clause 16 (Original clause 15) which deals with licensing of institutions.

Sub-clause (/•) (New).—The term 'licensing authority" has been defined fls a consequence of the insertion of new clause 15 relating to licensing authorities for adoption institutions.

Clause 5

The amendments made in this clause are detailed below sub-clause- wise : —

Sub-clause (1).—The Committee is of the opinion that in view of the responsibility involved in deciding to adopt a child, the minimum age at which a person may adopt should be fixed at 25 years instead of 21 years as proposed in the Bill. The Committee also feels that in the case of adoption of a child by spouses, it would be enough if the require- ment as to the minimum age is complied with by either of the spouses. The sub-clause has been amended accordingly.

Sub-clause (2).—The amendment is of a verbal nature.

Sub-clause (3).—This sub-clause provides that there should be an age difference of 21 years between an adopter and an adoptee. The Com- mittee is of the opinion that the court should have a discretion to relax

this condition in genuine cases in the interests of a child or in other special circumstances. A proviso has, therefore, been added to the sub-clause to enable the district court to dispense with the requirements of the sub-clause in special circumstances.

Sub-clause (4).—The Committee feels that the expression "illegitimate child" is not happy and that it should be substituted by the expression "a child not born in lawful wedlock". The sub-clause has been amended accordingly.

Clause 7

The Committee has made the following changes in this clause which deals with consents for adoptions: —

(1) The Committee feels that in the case of adoption of a child in the care of an institution, the consent of the institution should be required irrespective of whether the institution has legal custody of the child. The Committee also feels that the consent on behalf of! an institution should be given by all persons who are in charge of |the management of that institution instead of by any person as originally provided in sub-clause (l)(b) of the clause. Sub-clause (l)(b) of the clause has been amended accordingly.

(2) In the proviso to sub-clause (2), the word "natural" has been omitted as unnecessary in the context and the expression "an illegitima[te child" has been replaced by the expression "a child not born in lawful wedlock".

(3) The Committee feels that the time when, and the manner in which, consent may be given for the adoption of a child and other matters relating to such consent should best be left to be regulated by rules to be made under the Act as different types of provisions may be necessary for different classes of cases. Sub-clause (2) of the clause has been modified accordingly.

Clause 9

Sub-clause (1).—This sub-clause, inter alia, empowers the Central Government to make rules relating to the procedure to be followed by the district court in regard to the hearing and determination of applica- tions for adoption orders. The Committee is of ,the opinion that it may be made clear that such rules may also provide for transfer of proceedings from one district court to another district court (whether such courts are situated in the same or different States) and for reference, if necessary, of adoption applications for case study and report to experts or other specified agencies. An Explanation has, therefore, been added to sub- clause (1) for the purpose.

Sub-clause (2).—The amendment is of a clarifying nature.

Sub-clause (3).—This sub-clause makes provision for the appointment, if deemed necessary, of a guardian ad litem of a child to be adopted for safeguarding the interests of the child. The Committee is of the opinion that in cases where a guardian makes an application for adopting his ward it should be mandatory upon the court to appoint some other person

or authority to act as guardian ad Idem of the child. A new proviso has, therefore, been added to the sub-elauso.

Clause 10

The amendments made in this clause are for making it clear that an application for an interim order could be made not only by a person interested but also by an authority and that the court has also the powers to modify an interim order passed by it.

Clause 13

New sub-clause (3) has been inserted in this clause to provide for the issue of a new birth certificate in respect of an adopted child. The new certificate should set out the names of the adoptive parents in place of the names of the natural parents of the child.

Clause 14

The amendments made in this clause are of a clarifying nature.

Clause 15 (New)

The Committee is of the opinion that the licensing of adoption institutions should be entrusted to a representative body instead of to an officer of the State Government as provided in original clause 15(2). New clause 15 accordingly provides for licensing authorities for adoption institutions for different States and for the composition of, and other matters relating to, such authorities.

Clause 16 (Original Clauses 15 and 16)

The amendments made in original clauses¹ 15 and 16 are detailed

below: —

Sub-clause (1) of clause 15.—The amendment is of a drafting nature.

Sub-clause (2) of clause ^5.—The omission of the brackets and words "(who shall bo an officer of the State Government appointed as licensing authority by that Government)" is consequential to the insertion of new clause 15.

Sub-clause (5) of clause 15.—The original sub-clause had left it to the licensing authority to specify the period of licence. The Committee feels that the period for which a licence may be granted and the period for which it may be renewed should be mentioned in the Act itself. The Committee has, therefore, modified the sub-clause so as to specify a period of three years as the period for which a licence may be granted or renewed-

Sub-clause (6) (New).—The provision made by the Committee for granting or renewing a licence for three years may give rise to difficulties in cases where the licensing authority considers it desirable, having regard to the record, antecedents and performance of an institution, to grant or lenew a licence for a shorter period. New sub-clause (6) seeks to cover such cases. The Committee, however, considers it necessary to provide for two safeguards against any possible misuse of the power to issue or renew a licence for a shorter period. The first

safeguard is by way of a provision requiring the licensing authority to record his reasons. This has been made in the new sub-clause "(6) itself. The second safeguard is by way of an appeal against the decision of the licensing authority under clause 18 of the Bill.

Sub-clause (i)) (New).—The provisions of original clause 16 have been

incorporated in the sub- clause and clause 16 has been omitted.

Clause 18

The amendment made in this clause is consequential to the amend- ments made in sub-clause (5) of new clause 16 and new sub-clause (6) of that clause

Clause 22

The restrictions on removal of a child for adoption outside India contained in this clause did not originally apply to a guardian or relative of a child. The Committee is of the opinion that even a guardian or relative of a child should not be allowed to iremove the child to a place outside India with a view to the adoption of the child without obtaining a provisional order as contemplated by clause 23. The words "not being a guardian or relative of a child" occurring in sub-clause (1) of clause 22 have, therefore, been omitted.

Clause 24

The amendments made in this clause are of a consequential or drafting

nature.

Clause 25

The Explanation added to sub-clause (2) of this clause is consequential to the amendment relating to scheduled tribes made by the Committee In clause 1.

Clause 1

The tribal communities have their own customary laws and practices in regard to adoption of children and different communities have different practices. The Committee feels that the immediate application of the legislation to scheduled tribes might create certain practical difficulties. A new sub-clause (4) has, therefore, been added to exclude scheduled tribes as denned in clause (25) of article 366 of the Constitution from the purview of the Bill. At the same time, power has been given to the Central Government to apply the provisions of the legislation to such tribes by notification, as and when considered appropriate.

14. The other changes made in the Bill are of a consequential or

drafting nature.

15. The Committee recommends that the Bill, as amended, be passed.

NEW DELHI; BUOY CHANDRA BHAGAVATI,

August 12, 1976, Chairman, Joint Committee.

MINUTES' OF DISSENT

I

Wo regret that we are constrained to give our note of dissent. We made a fervent appeal to our colleagues on the Joint Committee of both the Houses to consider our point with an open mind in the best interests of secularism and democracy. We are sorry to state that no heed was paid to it. Now that the Bill goes before Parliament, we again make this appeal to our colleagues in Parliament in the hope that they would be guMed by discerning counsel when the Bill would be taken up for consideration.

We may be pardoned for being a bit elaborate. The genesis of this Bill is that some social organisations devoted to the maintenance of abandoned children in the country were confronted with itwo handicaps. They could neither give their children in adoption to any one in. India nor to a foreigner dwelling abroad. There is no law to cover such cases. Some lone voices from the Parsi and the Christian Communities in India were also raised for the enlargement of the scope of! the present Adoption Act to cover their cases. It is significant to note that there was no such demand from the Muslim Community as a whole. The evidence on record bears this fact.

The Government, instead of providing for the above contingencies, thought it fit to bring about a new Bill common to all the communities in India. While presenting the Bill to Parliament in 1972, the Union Minister for Law & Company Affairs asserted that it was a first step towards Uniform Civil Code in India.

The Muslims in the country opposed the Bill.

We desired that a new sub-clause should be added to Clause I of the Bill In the following words: "It shall not apply to persons governed by the Muslim Law". This amendment was rejected by the Joint Select Committee on four counts. First, this Bill is in. the greater interests of the children of the country and their welfare transcends the religious or communal barriers. Secondly, it is an enabling Bill, voluntary in its character. It does not compel the Muslims to adopt. Thirdly, it is not against the Quranic injunctions. Fourthly, it is the first step to a uniform Civil Code in India.

We would like to meet the above points mostly in the light of the evidence on record. It may be borne in mind that this is the first Bill, since our Independence, which has aroused ithe greatest stir in the Muslim Intelligentsia. Thousands and thousands of representations have been made by way of letters, telegrams, resolutions and memoranda to the effect that the Muslims in India should be exempted from the purview of this Bill. More than 100 Muslim witnesses appeared before the Committee to give their evidence in their individual or collective capa- cities. Ulemas (Muslim Scholars) of undisputed repute belonging to such Scholastic Orders as Darul Uloom of Deobandh, Nadwathul Ulema of

Lucknow, Imarath Shariah of Bihar and Orissa, Jamiathul Ulema of India appeared before the Joint Select Committee. Muslim advocates turned up in a great number. Muslim Ladies came forth to express their views. The Muslim Personal Law Board, though of late origin, also tendered its evidence.

The Muslim evidence is altogether non-political in its character and deals with the issue from the religious point of view only. The summary of Evidence circulated to us by the Law Department says that 99 per cent of ,the Muslim evidence is against this Bill. As far as we remember, with the exception of three Muslims, no Muslim witness has upheld the scheme of this Bill, in relation to its application to the Muslims in India. These three witnesses lack the basic knowledge of Arabic and Holy Quran. Their views therefore may be considered as stray observations and as an exception to the general consistent opinion.

Those who are conversant with the Muslim Jurisprudence know it fully well that the Muslim Law is based upon the Holy Quran, the Sunnah, Ijma and Qiyas. It is the unshakeable belief of Muslims that Quran is the w ry word of God. Quranic injunctions are the first and foremost basis of the Muslim Law. The Muslim scholars and lawyers who appeared before the Joint Select Committee were all one on this point that adoption has been forbidden by the Holy Quran, They have based their argument on the Verse of the Holy Quran, " nor hath He made your adopted sons your real sons. This is only your saying by your mouths, whereas Allah sayeth the truth and guideth the way." (Chapter 33:4). All the commentaries of the Holy Quran, without any exception, have been unanimous that this Verse was directed against Prophet Muhammad who had adopted Hazrath Zaid as his son. It is by this Verse that Islam had repudiated the old custom of Arabia of adopt- ing children as their own. Till then the old coustom of adoption was prevalent among the Arabs. In effect, the institution of adoption among the Arabs was very much analogous to the present system of adoption among the Hindus in India. In Arabs, the adopted son was called after the name of his adoptive father. He inherited property in the family of the adoptive father and observed the prohibited degrees of marriage that arose out of this supposed relationship. In view of these facts, it is not so easy to say that Quran is silent on adoption or that it does not prohibit adoption. Had there been no Quranic Injunction, the highest Judicial Tribunals in undivided India and in Independent India would not have given their unequivocal verdict that the institution of adoption is un- known to the Mohommedan Law.

With due deference to our brethren with whom the custom of adop- tion is common, it is interesting to note that Dr. S. D. Sharma, Professor of Psychiatry, Goa Medical College, who has put in 18 years of practice, was the sole witness who disliked the scheme of adoption on a scientific basis, as in his opinion the act of adoption is the most unnatural act, causing great frictions in social relationship in the adoptive family after the entry of the new child and ultimately resulting in the retarded growth of the "Personality" of the child.

No one denies the fact that the Bill is voluntary and enabling in its character but the question remains whether its mischief is extended to those who are not a party to adoption. Once an adoption is made, law

takes its own course. The shares of other kith and kin entitled to suc- cession get affected and a new framework of prohibited degrees of marriage emerges round the personality of the adopted child. It is in this context that all the witnesses claim that adoption is a Hindu religious concept in spirit and is being foisted upon the Muslims- It is against the spirit of secularism that a particular religious belief is imposed upon others who do not subscribe to it. To say that the Bill is enabling in its character does not put it on a different footing from, other civil laws. All the Acts which provide for civil contracts and remedies therefor, are, for that master, enabling in their character. If a person intends to seek any civil remedy, he resorts to the relevant Act. If he does not want, it is up to him not to act, The present Bill is, therefore, no exception.

The repeal of the present Hindu Adoptions and Maintenance Act of 1956 does npt at any rate come in the way of the fulfilment of the reli- gious duties of a Hindu. He can adopt under the present Bill for the same religious purposes as he used to do under the repealed Act. The spirit of the earlier Act remains the same, whereas its title has been changed to enlarge its scope to other communities.

The divine character of the Muslim Jurisprudence can only be under- stood by those who either have faith in Islam or have made a deep study of the subject and hold a sympathetic view about the credulity of the Godly revelations to the Holy Prophet. The desire to have a change in the Muslim Personal Law is the result of a thinking that the said Law is man-made and hence gets out of tune with the moving times. This view is in direct conflict with that of the Muslims who believe in the religious sanctity of the Muslim Personal Law for all times to come.

Xt is most unfortunate that no deeper study of the subject of the Muslim Personal Law as it is practised in India has been made. If there are ureas which cause undue hardship to those who profess Islam, they can be studied and remedies can be found within the framework of Shariat. The initiative of any social legislation should come from those who are themselves the victims of circumstances. It is the considered opinion of eminent international jurists that the initiative to have any changes in the Muslim Personal Law should come from the Muslims only. Then alone it will be universally accepted and will not cause any hurdles in its implementation. Keeping this in view the Government of India and the Congress Party have given a number of assurances in Parliament and outside that no changes in the Muslim Personal Law would be made unless the Muslims want them. Now that the will of the Muslim Com- munity has been so clearly expressed, it is going to be repudiated so lightly.

We are conscious of the fact that in many Islamic countries changes are being brought about in the Muslim Personal Law. But they do not afford any good examples to be copied by us. The main reason is that they are all ruled by dictators, despots and monarchs who have the least regard for the religious passions and sentiments of the people. They are not bothered about public opinion as such, whereas in India we have a democratic structure of legislation based upon the canons of secularism Even among the Islamic countries, as is revealed by a deeper study 01 the subject, a distinction will have to be made between those who legis- late within the framework of the Shariat and those who legislate beyond its scope Turkey stands as a unique example under the second category

as it adopted somewhere in 1926 or so the Swiss Civil Code for herself, ignoring the basic structure of Shariat. Hence the Adoption Law promul- gated in Turkey does not afford any good example for us for the simple reason that the Civil Code adopted by her was in no measure Islamic in its character.

Coming to the basic question, one is compelled to ask: "What is the evil that this Bill wants to remove from the Muslim Society?" Is the social structure of Muslims in India built in such a way that it allows the orphans or the destitutes to remain in a s,tate of helplessness, without being cared for and without being fed? No. Apart from the general conditions of poverty in which the Muslim Society exists, it is to be noted that a destitute child is not left in a state of negligence. Muslims have a well-known institution of Fosterage. In the country a number of or- phanages testify to this fact. Evidence bears it that Muslim boys and girls are taken by their relatives in Jheir tender age, looked after as if they are their own children and later on given in marriage with sizeable dowries. But they do not become the sons or daughters of their foster- parents. Nor they inherit their properties. That is why it is said that Islam recognises Fosterage but not adoption. Islam tries to remove the evil of abandoned children from the Muslim Society through institutions like orphanage and fosterage, etc.

It is an admitted fact that hundreds and thousands of children in our country get abandoned each year. Any inducement, however great, will not be sufficient to make people rise in adequate number each year to take these children as their adopted sons or daughters. In fact we will not be able, by the passage of this Bill, to touch upon the fringe of the problem. Asi an economic measure, this Bill, we are afraid, will fall too short of the desired results. And as a religious measure, it will continue to have the same old force.

Let us think if this Bill will bring about a desirable change in the social structure of the Muslims. We may be permitted to say that in view of the evidence on record which has come from people of high eminence, wielding great positions of influence, the response of the Muslim Commu- nity will be one of coldness to the Bill. Muslims will have a feeling that in spite of the representation of their reputed ulemas and religious per- sonalities their voice was not heard and their Personal Law has been interfered with. The result is obvious. On the social front our gains will be negligible and on the political front our losses will be colossal,

Muslims in India enjoy freedom in two matters under the Constitu- tion—religious worship and goverance by Muslim Personal Law. These two aspects are the hall marks of our Secularism. If the Muslim Per- sonal Law is changed, our Secular character of the Constitution will be impaired.

We fervently appeal to our colleagues in Parliament to consider coolly, without any mental reservation, the argument put forth above. We hope that they would appreciate our view and would grant exemption to the Muslim Community from the purview of this Bill.

MAQSOOD ALI KHAN

NEW DELHI; MD. JAMILURRAHMAN

12-8-76.

SHAFQUAT JUNG

As a democrat and firm believer in secularism I think it my pious duty to submit the following note for favour of consideration of the provisions of the Bill and exempt the person or persons, community or communities, who are being governed by their respective personal law and there is absolutely no doubt in my mind that my pleading will certainly bear fruit and exemption shall be provided in the Bill as enumerated above.

It is an admitted fact and position that never in Indian history, either in post or pre-Independence days, any Committee of this type has ever invited or heard such a large number of Muslims, drawn from different important religious institutions of this country. This will be borne out by the fact that large number of representations, resolutions, post cards, telegrams and memoranda have been sent to the Committee and all such documents are on the record of the Committee coupled with the fact that large number of witnesses have been examined by the Committee from every nook and corner of the country and amongst the important institu- tions who have been examined are "The Imarat Sheria, Bihar", "Jamaitul Ulema Hind", "Nadwatul Ulema of UP." and "Darul Ulema Deoband". It ds quite needless to ^ay that such institutions are of immense import- ance having sound influence over the Muslim Community in India. Other institutions like Majlis Mashawarat and Muslim Personal Law Board, have also been examined and their views are on record. They all have said in unequivocal terms that the provisions of this Bill do interfere with the personal law of the Muslims whose rights have been guaranteed by the Constitution and have further adduced evidence that the present Bill is the replica of "The Hindu Adoptions and Maintenance Act of 1956" and thus fostering the old Act (which is for the Hindus only) under the new garb to all including the Muslims where adoption is unknown.

I may add here that the summary of evidence circulated to us by the Law Department, clearly asserts that 99 per cent of the Muslims are against this Bill:

"99 per cent of the Muslims who have given evidence (whether in their individual capacity or as representatives ofl Muslim Or- ganisations) have opposed the application of the Bill to Muslims. The main argument which have been advanced by them are: —

(1) Adoption is prohibited by The Holy Quoran and is contrary

to Islamic Law and Practice;

(2) Adoption will involve an alteration of various branches of personal law of Muslims, particularly the Law of Inheritance;

(3) It would be unconstitutional as violative of Articles 25, 26

and 2.9 of the Constitution;

(4) The Bill is an attempt to foist Hindu Law on Muslims;

(5) There is no demand for a general law of Adoption."

As enumerated above, 1 would like further to mention the following views of mine on the Bill, which keeping in view the summary note

submitted to us for our perusal, let all of us take into consideration, anc think coolly about the Muslim thinking on the present Bill:

Firstly, the Muslims have complete faith and belief in the Holy Quoran to be the first, foremost and last source of Muslim Law because it is divine in character. Next comes the point of Sunnah, Ijma and Quaiyas. It is needless to say that the Muslims have un-shakable belief that the Holy Quoran is the work of God and it is the pious duty of the Muslims to obey the very words of Holy Quoran and any deviation in the shape of any act is an attack on personal law.

Secondly, the Muslim Personal Law does not recognise adoption a,t all. This fact can well be proved and the same has been given due recognition by various law courts in India. In short, I may emphatically say that adoption is foreign to Muslim Law.

Thirdly, it has been cited that other Islamic countries are making changes in the Muslim Personal Law, but it will be of no use for us here. The conditions of those countries ate not known to us and moreover those countries are ruled by monarchs, dictators, despots and military Generals, and they all never take into consideration the people's opinion when making legislation. It is crystal clear that we in India are living in a democratic and secular State and every legislation, which is passed, is passed by the House of the People which certainly is the voice of the people.

I may further add here that the condition in India is quite different from, other countries as our country is a multi-racial country governed by the well-framed Constitution which certainly guarantees the rights of all including the Muslim minority and hence to cite examples of other Muslim countries is quite inappropriate for us.

It has been further said that the Muslims on earlier occasions did not raise any voice at the time of passing the Special Marriages Act and in this connection, I may safely say that no Muslim opinion was sought and that the Muslims were never given a reasonable opportunity of being heard (for this Bill large number of Muslims and institutions have been examined) and if heard then certainly the Muslims would have expressed their views and would have opposed that Act.

As submitted earlier let all of us sum up the views of the Muslim witnesses, institutions and personalities of eminence examined and the Muslims are thankful that they have been heard and their voice will certainly carry some weight before the august Committee and if at all their voice and opinion go unheard then certainly there was no sense in summoning them for their evidence, wasting so much time and energy. In my humble opinion due respect should be given to their views and sentiments.

\t has been said that the Bill is a voluntary one and it does not compel anybody to adopt and if anybody adopts the Act only then it will have its full play There is no denial of this proposition. The Muslim opinion on this point has got two aspects. Firstly, Muslims as a community

should not have the option ^o get into or run away from the applicability of any of the provisions of the Muslim Personal Law, rather in our frame of society there should be no such law to give any community, including the Muslims a liberty of abandoning their personal law. Secondly, though this Bill is voluntary in its character (after it becomes an Aqt) it will certainly directly hit the law of inheritance, law of marriages of the Muslims and the question of religion of the adopter and adoptee will arise thereby giving a long rope in the hands of reactionaries and it will also open the flood-gates of litigations.

Now coming to a very pertinent question, a free citizen (whose rights are guaranteed by the Constitution) has got a right to ask, "what is the evil or inherent defect in the Muslim society at large that this Bill wants to remove?". The simple answer will be: "Nothing".

I may say that the social structure of the Muslims in India is of such a character that it is incumbent on the Muslims under the provisions of the Holy Quoran that every Muslim is to part with in cash and kind as Zakat and Khairat for the religious institutions like Orphanages and Madarsas and this fact is known to the Government. Thare is evidence to this effect on record. There is also evidence on record that an orphan or neglected child is taken care of by their respective relations but they never become the sons and daughters of their relations who do take care of them and they don't inherit their properties and this is why Islam, does not recognise adoption and under such circumstances it cannot be said that Islam does not try to remove the evil of the abandoned and destitute children of the Muslim society.

To sum up, let us coolly think about the Muslim sentiment and if the Bill is passed the community as a whole will be cold to this Act, resulting in no gain either on the social or economic front, rather there will be feeling that in spite of large number of representations and evidence, no heed has been paid and they have been practically un-heard and thereby injuring their personal law and sentiments.

I will be failing in my duty if I do not mention that We will lose on the political front also and a large number of people will coin this Act for their gain in future.

It will be quite timely to mention here that my party (Congress) and Hon'ble Ministers have in unequivocal terms committed to the general public either in Party or Parliament or even outside Parliament that there will be no changes in Muslim Personal Law against their will.

Last but not the least I submit that after the passage of .this Bill into an Act the whole structure of the Muslim Society will be changed there- by infringing their fundamental rights guaranteed by the Constitution and hence I beseach that a clause be added to the effect that this Act shall not apply to a person or persons, community or communities governed by their respective personal laws.

MD. JAMILURRAHMAN.

Biu. No. XVIII-B OF 1972

THE ADOPTION OF CHILDREN BILL, 1972

( As REPORTED BY THE JOINT COMMITTEE)

(Words underlined or side-lined indicate the amendments suggested by

the Committee; asterisks indicate omissions).

BILL

to provide for the adoption of children and for matters connected

therewith.

BE it enacted by Parliament in the Twenty-seventh Year of the

Republic of India as follows: —

1. (I) This Act may be called the Adoption of Children Act, 1976,

(2) It extends to the whole of India except the State of Jammu and Kashmir.

Short title, extent and com- mence- ment.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

(4) Nothing contained in this Act shall apply to the members of any Scheduled Tribes within the meaning of clause (25) of article 366 of the C^nstm7tionunle5S the Central Government, by notification in the Official G^zeTteT^therwisedirects and different notifications may be issued in respect of different Scheduled Tribes in different States.

2. In this Act, unless the context otherwise requires,—

Defini- tions.

(a) "adoption order" means an order made under section 4 for the adoption of a child;

(b) "'child" means a person, whether male, or female, who, on or before the date on which an application for an adoption order in respect of such person is made, has not completed the age of eighteen years;

(c) "district court" means, in any area for which there is a city civil court, that court, and in any other area, the principal civil court of original jurisdiction:

Provided that the Central Government may, by notification in the Official Gazette, empower, subject to such conditions and restrictions as may be specified in the notification, any other civil court to exercise the powers and discharge the functions and duties of the district court in respect of all or any of the matters dealt with in this Act and a civil court so empowered shall also be deemed to be a district court for the purposes of this Act in respect of the matters and subject to the conditions and restrictions specified in such notification.

(d) "guardian" means a person having the care of the person of

a child or of both his person and property and includes—

(i) a guardian appointed by a will or other instrument

executed by the child's father or mother, and

(ii) a guardian appointed or declared by a court;

(e) "institution" means a body of persons licensed as a social

welfare institution under section 16;

(f) "licensing authority", in relation to any State, means the

Licensing Authority for Adoption Institutions for that State under

section 13;

(3) "parent", in relation to an adopted child, means the adoptive

parent;

(h) "prescribed" means prescribed by rules made under this Act.

3. After the commencement of this Act, no adoption shall be made except in accordance with the provisions of this Act and any adoption made in contravention of such provisions shall be void and of no effect.

Adoptions to be regulated by this Act.

4. Subject to the provisions of this Act, the district court may, upon an application made in the prescribed form and manner by a person for the adoption of a child, make an adoption order in respect of such child.

Power to make adoption orders.

5. (1) Any person who has completed the age of twenty-five years

and is of sound mind may adopt a child under this Act.

Persons who may adopt.

requirement as to age under this sub-section shall be deemed to have

I Explanation. —In the case of adoption of a child by spouses, the

I been satisfied if either of the spouses has completed the age of twenty-five I years.

(2) A person who is married shall not be entitled to adopt himself or herself alone a child, but the husband and wife, and where there are more wives than one, any one of the wives, may jointly adopt a child;

and in no other case shall more than one person be entitled jointly to adopt a child,

(3) The person or each of the persons seeking to adopt a child shall

be older than the child by at least twenty-one years:

Provided that the district court may dispense with the requirements of this sub-section in any case if it is satisfied that there are any special circumstances which render it necessary so to do.

mother or father of a child not born in lawful wedlock may, either alone or jointly with her or his spouse, as the case may be, adopt such child. Whether or not such mother, father or spouse—

1 (⁴) Notwithstanding the foregoing provisions of this section, the (a) has completed the age of twenty-five years; or

(b) is older than the child by twenty-one years.

6. (1) Any child who is not already adopted or married may be taken

in adoption,

Persona who may be adopted.

(2) No adoption order shall be made where the sole applicant for an adoption order is a male and the child to be adopted is a female, unless the district court is satisfied that the applicant is the father of the child or that there are other special circumstances which justify the making of an adoption order.

Consents. 7, (1) An adoption order in respect of a child shall not be m a d e-

fa) in any case, except with the consent of every person who U

a parent or guardian of the child; and

(b) where the child is in the care * * * of an institution,

except with the consent of the institution given on its behalf by all

the persons entrusted with, or in charge of, its management:

Provided that the consent of the * * * father of a child not born in

lawful wedlock shall in no case be required in the case of adoption

of such child,

I (2) The time when and the manner in which the consent referred to I in sub-section (1) may be given and other matters relating to such con- s e nt shall be such as may be prescribed.

(3) The district court may dispense with any consent required by sub-section (1) if it is satisfied that the person whose consent is to be dispensed with—

(a) has abandoned, neglected or persistently ill-treated the child or has persistently failed, without reasonable cause, to discharge the obligations of a parent or guardian of the child; or

(b) cannot be found or is incapable of giving consent or is with- holding consent unreasonably.

(4) Any consent to an adoption of a child given under this section shall not be withdrawn except with the permission of the district court.

8. Every application for an adoption orde,r shall be made to the dis- trict court having jurisdiction in the place where the child to be adopted er the applicant resides on the date of the application.

Court having jurisdic- tion to entertain applica- tionsi

Procedure before the court, etc.

5 of 1P08.

9. (1) Subject to the provisions of this Act and the rules made there- under, every application for an adoption order shall be heard and deter- mined by the district court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits and an adoption order made under this Act shall be deemed to be a decree for the purposes of the said Code.

Explanation.—Any rules made for the purposes of this sub-section may, in particular, provide for—

(a) the transfer of proceedings relating to an application for an adoption order pending in a district court to another district court (whether such courts are situated in the same or difFerent States), and for the circumstances in which and the manner in which such transfer may be made;

(b) the reference to the district court of an application for an adoption older to any expert, or agency specified in such rules for case study and report.

1 of 1872. (2) The provisions of the Indian Evidence Act, 1872, shall, subject to the provisions of this Act and the rules made thereunder, apply in all respects to the proceedings on such application:

Provided that the district court may receive as evidence any report, statement, document, information or matter that may in its opinion assist it to deal effectually with the application, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. "

1 of 1872.

(3) For the purpose of any application for adoption of a child under this Act and subject to any rules made thereunder, the district court may, if satisfied that it is necessary so to do, appoint some person or authority to act as guardian ad litem of the child upon the hearing of the application with the duty of safeguarding the interests of the child before the court:

Provided that where the application for adoption of a child is made I by his guardian, the district court shall appoint some other person or authority to act as guardian ad litem of the child under this sub-section. |

Interim orders.

10. (I) Subject to the provisions of this section, the district court may postpone the determination of an application for an adoption order in respect of a child and may, if it considers just and convenient so to do, make an interim order giving the care and custody of the child to the applicant for such period as the court thinks fit by way of a probationary period, upon such terms as regards the provision for the maintenance and education, and the supervision of the interests and welfare, of the child and otherwise as the court may think fit.

(2) On the application of any person or authority interested, the

district court may in its discretion modify or revoke an interim order in

respect of any child on such terms and conditions as the court thinks' fit.

11. The district court, before making an adoption order,—

Matters to be con, sidered ii. making adoption orders.

(a) shall be satisfied that every person or institution whose consent is required under this Act, and whose consent has not been dispensed with, has consented to and understands the nature and effect of the adoption order for which the application has been made and in particular in case of any parent, understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights;

(b) shall give due consideration to the wishes of the child, having regard to his or her age and understanding;

(c) shall be satisfied that the order if made, will be for the

welfare of the child; and

(d) shall be satisfied that the applicant has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant, any payment or other reward in consideration of the adoption except such as the court may sanction.

(2) In determining whether an adoption order, if made, will be for the welfare of the child, the district court shall have regard (among other things) to the health of the applicant as evidenced, in such cases as may be prescribed, by the certificate of a registered medical practitioner.

(3) The district court in making an adoption order may impose such terms and conditions as it may think fit and in particular, may require the adopter by bond or otherwise to make for the child such provision, if any, as in the opinion of the court is just and proper.

Appeals

12. (2) Any person aggrieved by an order of the district court allowing or dismissing an application for an adoption order may, within thirty days from the date of such order, prefer an appeal to the High Court,

(2) The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority and follow the same procedure with respect to an appeal under this section as if the appeal were an appeal from an original decree passed by the district court.

Effect of adoption order.

13, (1) An adoption order shall take effect on such date as may be specified therein by the district court or where an appeal has been preferred under section 12 against such order on such date as may be specified in the appellate order.

(2,) A child in respect or whom an adoption order is made shall be deemed to be the child of the adopter or adopters and the adopter or adopters shall be deemed to be the parent or parents of the child as if the child had been born to that adopter or those adopters in lawful wedlock, for all purposes (including intestacy) with effect from the date on which the adoption order takes effect and on and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption order in the adoptive family:

Provided that—

(a) the child shall not be competent to marry arty pefson whorri the child could not have married if the child had continued in the family of his or her birth;

(b) any property which vested in the adopted child immediately before the date on which the adoption order takes effect shall continue to vest in the adopted child subject to the obligations, if any, attaching to the ownership of such property including the obligations, if any, to maintain the relatives in the family of his or her birth;

(c) the adopted child shall not divest any person of any property which vested in such person before the date on which the adoption order takes effect.

(3) Notwithstanding anything contained in any other law, where the particulars relating to the birth of a child in respect of whom an adoption order is made have been registered under any law relating to registration of births, the officer or other authority for the time being empowered to give certified extracts of such particulars shall, upon an application made by or on behalf of the child and upon being satisfied that the adoption order in respect of the child has taken, effect, issue or cause to be issued a certificate of such particulars setting out the names of the adoptive parents in place of the names of the natural parents of the child.

14. (1) The district court,—

(i) upon receiving from any person an application in the

prescribed form in this behalf, or

(ii) upon a report by any officer authorised in this behalf by the

Special provision for pro- tection of adopted children.

State Government, or

(in) upon its own knowledge or information,

may> by notice, require the parent or guardian of a child apparently under the age of eighteen years, being a child adopted under this Act to produce such child on such day as may be specified in the notice if the court has reason to believe that the child—

(a) is habitually neglected or subjected to cruel ill-

treatment,

(b) lives or is made to live by begging,

(c) lives or is made to live in circumstances calculated to cause encourage or favour the seduction or prostitution of the child,

(d) frequents or is allowed to frequent the company of any prostitute, or of any smuggler, or thief or other criminal, or

(e) has been or is being or is likely to be taken out of India for any immoral purpose or for any purpose detrimental to his welfare and interests.

Explanation.—For the purposes of sub-clause (a), cruel ill-treatmerlt

in delation to an adopted child includes any undue discrimination

between him and his brothers or sisters in his adoptive family in the matter of care, maintenance, training, education, provision of money or* property or in any other matter connected with the physical, material or moral well-being of the child.

(2) On the date fixed for the production of the child under sub- section (i) or on any subsequent date to which the proceedings may be adjourned, the district court may hear and record all evidence which may be adduced and pass such order as in the opinion of the court is just and proper in the circumstances of the case for ensuring the welfare of the child.

(3) The provisions of section 9 shall, so far as may be, apply in respect of proceedings and orders under this section as they apply in respect of proceedings on applications for adoption orders and adoption orders.

(4) The provisions of this section shall be in addition to, and not in derogation of, the provisions of any law for the time being in force providing for the care, protection, maintenance, welfare, training, education and rehabilitation of children.

15. (1) There shall be a Licensing Authority for Adoption Institutions for each State.

(2) The licensing authority for a State shall consist of the following members, namely: —

Licensing Authority for Adoption Institu- tions.

(a) a Chairman who shall be a member of the State Social Welfare Board, if any, or an officer of the State Government not below the rank of a Joint Secretary to that Government, to be appointed by the State Government;

(b) one member nominated by the Central Government and not more than five other members to be appointed by the State Government, from amongst persons who, in the opinion of the Government making such nomination or appointment have special knowledge or experience in regard to matters relating to child welfare and administration of child welfare institutions:

Provided that not less than one-half of the members under this clause shall be women.

(,3) The term of office of, the allowances, if any, payable to, and the other terms and conditions of service of, the Chairman and other members of the licensing authority for a State shall be such as may be determined by the State Government.

(4) The quorum for the meetings of the licensing authorities for States and the procedure to be followed by such authorities shall be auch as may be prescribed.

(5) No act or proceedings of the licensing authority for any State shall be invalid by reason of the existence of any vacancy in, or defect in the composition of, the authority.

45 pi I860-

(6) All members of the licensing authorities shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code.

16. (li) It shall not be lawful for any body of persons to make any Licensing of institu- tions.

arrangements for the adoption of a child unless that body is licensed as a social welfare institution under this Act:

Provided that for a period of three months from the commencement ofi this Act, this sub-section shall not apply to any body of persons

engaged in making such arrangements.immediately before the commence- ment of this Act.

(2)' An application for being licensed as a social welfare institution may be made to the licensing authority * * * in such form¹ and containing

such particulars as may be prescribed.

(3) On the receipt of an application under sub-section (2) the licensing authority, after making such inquiry as it thinks necessary, shall by an order in writing either grant the licence or refuse to grant it.

(4) Where a licence is refused, the grounds for such refusal shall be

communicated to 1he applicant in the prescribed manner,

(5) A licence unless sooner revoked, shall be in force for a period of

three years from the date of the issue of the licence and may, on an

application made in this behalf sixty days before the date of its expiry, be renewed for a like period:

Revoca- tion 01 licence.

(b) if the licensing authority is not satisfied with the conditions, management nr superintendence of the institution concerned:

Provided that before making an order of revocation the licensing authority shall give the holder of the licence a reasonable opportunity to show cause why the licence should not be revoked.

(2) Where a licence in respect of an institution has been revoked under sub-section (1), such institution shall cease to function—

(a) where no appeal has been preferred, against the order of revocation, immediately on the expiry of the period prescribed for the filing of such appeal;

(b) where an appeal has been preferred but the order of revocation has been confirmed, whether with or without any modifications from the date of the appellate order.

(.?) On the revocation of a licence in respect of an institution, the licensing authority may direct that any child who is in the care and custody of the institution on the date of such revocation shall be—•

(a) transferred to another institution; or

(b) placed an the care and custody of such person as is in the opinion of the licensing authority a fit and proper person to be entrusted with the care and custody of the child.

18. (I) Any person aggrieved by an order of the licensing authority granting or renewing a licence for a period less than three years or Appeal against orders of licensing authority.

refusing to grant or renew a licence or revoking a licence or by a direction of the licensing authority may, within such time as may be prescribed, prefer an appeal to the State Government against such refusal, revocation or direction.

(2) The order of the State Government on such appeal and subject only to such order, the order of the licensing authority shall be final and conclusive.

Penalties. 19. Any person who contravenes any of ithe provisions of this Act or any of the rules made under this Act relating to the grant of licences or any of the conditions of a licence, or any of the directions issued under sub-section (3) of section 17 shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.

20. (1) Subject to the provisions of this section, it shall not be lawful to make or give to any person any payment or reward for or in consideration of—

Prohibi- tion of certain pay- ments.

(a) the adoption by that person of a child; or

(b) the grant by that person of any consent required in connection with the adoption of a child; or

(c) the transfer by that person of the care and custody of a child with a view to the adoption of a child; or

(d) the making by that person of any arrangements for the adoption of a child.

(2) Any person w}io makes or gives or agrees or offers to make or give any payment or reward prohibited by this section or who receives or agrees to receive or attempts to obtain any such, payment or reward, shall be punishable with imprisonment for a term which may extend.to six months, or with fine, or with both; and the court may, order any child in respect of whom the offence has been committed, to be removed to a place of safety until he can be restored to his parents or guardian or until other arrangements can be made for him.

(3) This section does nqt apply to any payment made to an institution by a parent or guardian of a child or by a person who adopts or proposes to adopt a child, being any payment in respect of expenses reasonably incurred by the institution in connection with the adoption of the child or to any payment or reward authorised by the court to which an application for an adoption order in respect of a child is made.

21. (I) Except with the leave of the court competent to entertain an application for an adoption order in respect of a child, it shall not be lawful for any advertisement to be published indicating—

Restric- tions upon advertise- ments.

(a) that the parent or guardian of the child desires to cause the child to be adopted; or

(b) that a person desires to adopt the child; or

(c) that any person (not being an institution) is willing to make arrangements for the adoption of the child.

(2) Any person who causes to be published or knowingly publishes an advertisement in contravention of the provisions of this section shall be punishable with fine which may extend to one thousand rupees.

22. (I) Except under the authority of an order under section 23, it shall not be lawful for any person * * * to take or send out of India a child who is a citizen of India to any place outside India with a view to the adoption of the child by any person.

Restric- tions on removal of child for adoption outside India.

(2) Any person who takes or sends a child out of India to any place outside India in contravention of sub-section (1) or makes or takes part in any arrangements for transferring the care and custody of a child to any person for that purpose shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.

(3) In any proceeding under this section a report by¹ an Indian consular officer or an Indian diplomatic officer or a deposition made before an Indian consular officer or an Indian diplomatic officer and authenticated under the signature of that officer shall be admissible as evidence of the matters stated therein, and it shall not be necessary to prove the signature or official character of the person who appears to have signed any such report or deposition.

Provi- sional adoption by person domiciled outside India.

23. (I) If upon an application made by a person who is not domiciled in India, the district court is satisfied that the applicant intends to adopt a child under the law of or within the country in which he is domiciled, and for that purpose desires to remove the child from India either immediately or after an.interval, the court may make an order (in this section referred to as a provisional adoption order) authorising the applicant to remove the child for the purpose aforesaid and giving to the applicant the care and custody of the child pending his adoption as

aforesaid: 1

Provided that no application shall be entertained unless it is accompanied by a certificate by the Central Government to the effect that,—

(i) the applicant is in its opinion a fit person to adopt the child;

(ii\ the welfare and interests of the child shall be safeguarded

under the law of the country of domicile of the applicant;

(in) the applicant has made proper provision by way pf deposit or bond or otherwise in accordance with the rules made under this Act to enable the child to be repatriated to India, should it become necessary for any reason.

(2) A provisional adoption order may be made under this section in any case where an adoption order could be made in respect of the child under this Act but shall not be made in any other case.

(3) The provisions of this Act relating to an adoption order shall, as far as may be, apply in relation to a provisional adoption order made under this section.

Power to make rules.

24. (1) The Central Government may, by notinca.tion in the Official Gazette, and after consultation with the Supreme Court, make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the

provisions of sub-section (1), such rules may provide for—

"(a) the form and the manner in which an application for an

adoption order shall be made;

(b) the time when and the manner in which consent may be given to the adoption of a child and other matters relating to such consent;

|

(c); the procedure which may be followed on hearing applications to a district court and the circumstances in which and the extent to which such applications may be heard and determined otherwise than in open court;

(d) the care and custody of children awaiting adoption;

(e) the quorum for the meetings of licensing authorities and

the procedure to be followed by licensing authorities;

(f) the form in which and the authorities to whom, an application for the certificate referred to in the proviso to sub-section (2) of section 23 may be made; ,the provision which an applicant for such certificate has to make for repatriation to India of the child to which the application relates and the conditions which such an applicant has to comply with;

{g) the form and particulars of an application for a licence in

respect of an institution;

(hi) the manner in which the grounds of refusal of a licence shall

be communicated to the applicant;

(i) the form of licence in respect of institutions and the conditions

thereof, the qualification of persons who may be engaged by

institutions to make arrangements for adoption, the provisions which should be complied with by institutions in regard to reception, care, protection and welfare of children under their control and the inspection of records and premises of institutions;

(j) the time within which an appeal may be preferred to the

State Government under section 18;

(/<;); any other matter for which provision has to be or may be

made by rules.

(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that ,the rule should not be made, the rule shall thereafter have effect only in such modified form Or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

25. (1) The Hindu Adoption and Maintenance Act, 1956, in so far as it relates to adoptions among Hindus, is hereby repealed, that is to say, the said Act shall be amended in the manner specified in the Schedule.

Repeal of Act 78 of 1956 in so far as it relates to adoption among Hindus, etc. (2) Any custom or usage relating to adoption among members of any community or of any class or sub-class of a community or of any family and in force in the territories to which this Act extends, immediately before the commencement of this Act as par.t of the law applicable to such community, class, sub-class or family shall cease to have effect as from such commencement, except as respects things done or omitted to be done before such commencement.

Explanation,—In the case of members of any Scheduled Tribes within the meaning of clause (25) of article 366 of the Constitution, the reference in this sub-section to the "commencement of this Act" shall be construed as a reference to the date with effect from which the provisions of this Act apply to such members by virtue of a notification under sub-section (4) of section 1.

Saving.

26. Nothing contained in this Act shall affect any adoption made before the commencement of this Act, and the validity and effect of any such adoption shall be determined as if this Act had not been passed.

THE SCHEDULE

[See section 25(1)]

1. Long title.—Omit "adoptions and".

2. Section 1.—In sub-section (J), omit "Adoption and".

3. Omit Chapter II (sections 5 to 17, both inclusive).

4. Omit section 30.

S- S. BHALERAO,

gecretpry-General

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