SHABNAM HASHMIversusUNION OF INDIA & ORS.

                     [2014] 2 S.C.R. 1101


                      SHABNAM HASHMI                                A
                                v.
                   UNION OF INDIA & ORS.
             (Writ Petition (Civil) No. 470 of 2005)
                     FEBRUARY 19, 2014
                                                                    B
        [P. SATHASIVAM, CJI, RANJAN GOGOi AND
                 SHIVA KIRT! SINGH, JJ.]

       Juvenile Justice (Care And Protection of Children) Act,
  2000: ss.41 to 44, 68 - Writ petition filed under Art 32 - Prayer C
  to lay down law about adoption as a fundamental right and in
  alternate to Jay down guidelines about adoption of children
  irrespective of religion, caste and seeking direction to the UO/
  to enact optional law on the subject - Held: Petitioner admitted
  that JJ Act of 2000 is a secular law that enable adoption D
  irrespective of religion and meets prayers made with petition
  - Muslim Personal Law Board claimed that Islamic law does
  not recognize that an adopted child is at par with a biological
  one; that it allows Kafala system under which adopted child
. remains descendent of biological parents and that child E
  welfare committee should keep this in mind - The 2000 Act
  allows choice of personal Jaw and is an optional legislation
  and is a small step towards fulfillment of Art 44 - Choice will
  remain open till a Uniform Civil Code is made to sink
  conflicting faiths. afld prevalent beliefs - The question of F
  adoption to be deciared a fundamental right is not ripe and
  must wait its evolution till different group reach maturity - Till
  then restrain must be maintained - Juvenile Justice (Care and
  Protection of Children) Rules, 2007 - r.33(2) - Constitution of
  India, 1950 - Article 44.
                                                                     G
       The instant writ petition was filed under Art 32. The
  prayer in the writ petition was to lay down law about
  adoption as a fundamental right and in alternate to lay
  down guidelines about adoption of children irrespective
                                 1101                                H
    1102   SUPREME COURT REPORTS               [2014] 2 S.C.R.


A of religion, caste and seeking direction to the respondent
  UOI to enact optional law on the subject.

       Disposing of the writ petition, the Court

       Held: 1. The alternative prayer made in the writ
B petition was substantially fructified by the judicial verdict
  in "'Lakshmi Kant Pandey case and the supplemental, if
  not consequential, legislative innovations in the shape of
  the Juvenile Justice (Care And Protection of Children)
  Act, 2000 as amended in 2006 as also the Juvenile Justice
C (Care and Protection of Children) Rules promulgated in
  the year 2007. Dealing with inter-country adoptions,
  elaborate guidelines had been laid by the Supreme Court
  to protect and further the interest of the child. A
  regulatory body, i.e., Central Adoption Resource Agency
D ('CARA') was recommended for creation and accordingly
  set up by the Government of India in the year 1989. Since
  then, the said body has been playing a pivotal role, laying
  down norms both substantive and procedural, in the
  matter of inter as well as in country adoptions. The said
E norms have received statutory recognition on being
  notified by the Central Govt. under Rule 33 (2) of the
  Juvenile Justice (Care and Protection of Children) Rules,
  2007 and are today in force throughout the country,
  having also been adopted and notified by several states
F under the Rules framed by the states in exercise of the
   Rule making power under Sec~ion 68 of the JJ Act, 2000.
  [paras 2, 3] [1108-F-H; 1109-A-D]
        *Lakshmi Kant Pandey Vs. Union of India (1984) 2 SCC
    244: 1984 (2) SCR 795 - relied on.
G
      2. In stark contrast to the provisions of the JJ Act,
  2000 in force as on date, the Juvenile Justice Act, 1986
  dealt with only "neglected" and "delinquent juveniles".
  The provisions of the 1986 Act dealt with delinquent
H juveniles and all that was contemplated for a 'neglected·"
   SHABNAM HASHMI v. UNION OF INDIA & ORS.              1103


juvenile' was custody in a juvenile home or an order            A
placing such a juvenile under the care of a parent,
guardian or other person who was willing to ensure his
good behaviour during the period of observation as fixed
by the Juvenile Welfare Board. The JJ Act, 2000
introduced a separate chapter i.e. Chapter IV under the         B
head 'Rehabilitation and Social Reintegration' for a child
in need of care and protection. Such rehabilitation and
social reintegration was to be carried out iitlternatively by
adoption or foster care or sponsorship or by sending the
child to an after-care organization. Section 41                 c
contemplates adoption though it makes it clear that the
 primary responsibility for providing care and protection
to a child is his immediate family. Sections 42, 43 and 44
of the JJ Act, 2000 deals with alternative methods of
 rehabilitation namely, foster care, sponsorship and being      0
 looked after by an after-care organisation. The JJ Act,
2000, however did not define 'adoption' and it is only by
the amendment of 2006 that the meaning thereof came
to be expressed. In fact, Section 41 of the JJ Act, 2000
was substantially amended in 2006 and for the first time
                                                                E
the responsibility of giving in adoption was cast upon the
 Court which was defined by the JJ Rules, 2007 to mean
 a civil court having jurisdiction in matters of adoption and
 guardianship including the court of the district judge,
family courts and the city civil court. [Rule 33 (5))
 Substantial changes were made in the other sub-                F
sections of Section 41 of the JJ Act, 2000. The CARA, as
 an institution, received statutory recognition and so did
the guidelines framed by it and notified by the Central
 Govt. [Section 41(3)). [paras 4 to 6) [1109-E-H; 1110-A-E]
                                                                G
    3. In exercise of the rule making power vested by
Section 68 of the JJ Act, 2000, the JJ Rules, 2007 have
been enacted. Chapter V of the said Rules deal with
rehabilitation and social reintegration. Under Rule 33(2)
guidelines issued by the CARA, as notified by the Central       H
    1104   SUPREME COURT REPORTS               [2014] 2 S.C.R.


A Government under Section 41 (3) of the JJ Act, 2000,
  were made applicable to all matters relating to adoption.
  Pursuant to the JJ Rules, 2007 and in exercise of the rule
  making power vested by the JJ Act, 2000 most of the
  States have followed suit and adopted the guidelines
B issued by CARA making the same applicable in the matter
  of adoption within the territorial boundaries of the
  concerned State. Rules 33(3) and 33(4) of the JJ Rules,
  2007 contain elaborate provisions regulating pre-
  adoption procedure i.e. for declaring a child legally free
c for adoption. The Rules also provide for foster care
  (including pre-adoption foster care) of such children who
  cannot be placed in adoption & lays down criteria for
  selection of families for foster care, for sponsorship and
  for being looked after by an aftercare organisation.
  Whatever the Rules do not provide for are supplemented
0
  by the CARA guidelines of 2011 which additionally
  provide measures for post adoption follow up and
  maintenance of data of adoptions. [Paras 7) [1110-F-H;
  1111-A-C]

E      4. In the light of the developments, the petitioner in
  his written submission admits that the JJ Act, 2000 is a
  secular law enabling any person, irrespective of the
  religion he professes, to take a child in adoption. It is akin
  to the Special Marriage Act 1954, which enables any
F person living in India to get married under that Act,
  irrespective of the religion he follows. JJA 2000 with
  regard to adoption is an enabling optional gender-just
  law, it is submitted. In the written arguments filed on
  behalf of the petitioner it has also been stated that in view
G of the enactment of the JJ Act, 2000 and the Amending
  Act of 2006 the prayers made in the writ petition with
  regard to guidelines to enable and facilitate adoption of
  children by persons irrespective of religion, caste, creed
  etc. stands satisfactorily answered and that a direction
H be made by this Court to all States, Union Territories and
  SHABNAM HASHMI v. UNION OF INDIA & ORS.              1105


authorities under the JJ Act, 2000 to implement the            A
provisions of Section 41 of the Act and to follow the
CARA guidelines as notified. [Paras 8, 9] [1112-B-D]
    5. The All India Muslim -Personal Law Board which
has been allowed to intervene in the present proceeding
                                                               B
has filed a detailed written submission wherein it has
been contended that under the JJ Act, 2000 adoption is
only one of the methods contemplated for taking care of
a child in need of care and protection and that Section
41 explicitly recognizes foster care, sponsorship and
being look after by after-care organizations as other/         C
alternative modes of taking care of an abandoned/
surrendered child. It is contended that Islamic Law does
not recognize an adopted child to be at par with a
biological child. According to the Board, Islamic Law
professes what is known as the "Kafala" system under           D
which the child is placed under a 'Kafil' who provides for
the well being of the child including financial support and
thus is legally allowed to take care of the child though the
child remains the true descendant of his biological
parents and not that of the "adoptive" parents. The Board      E
contends that the "Kafala" system which is recognized
by the United Nation's Convention of the Rights of the
Child under Article 20(3) is one of the alternate system of
child care contemplated by the JJ Act, 2000 and therefore
a direction should be issued to all the Child Welfare          F
Committees to keep in mind and follow the principles of
Islamic Law before declaring a muslim child available for
adoption under Section 41(5) of the JJ Act, 2000. [para
1OJ [1112-E-H; 1113-A-B]
     6. The JJ Act, 2000, as amended, is an enabling           G
legislation that gives a prospective parent the option of
adopting an eligible child by following the proced'ure
prescribed by the Act, Rules and the CARA guidelines,
as notified under the Act. The Act does not mandate any
compulsive action by any prospective parent leaving            H
    1106   SUPREME COURT REPORTS                [2014] 2 S.C.R.


A such person with the liberty of accessing the provisions
  of the Act, if he so desires. Such a person is always free
  to adopt or choose not to do so and, instead, follow what
  he comprehends to be the dictates of the personal law
  applicable to him. The Act is a small step in reaching the
B goal enshrined by Article 44 of the Constitution. Personal
  beliefs and faiths, though must be honoured, cannot
  dictate the operation of the provisions of an enabling
  statute. An optional legislation that does not contain an
  unavoidable imperative cannot be stultified by principles
C of personal law which, however, would always continue
  to govern any person who chooses to so submit himself
  until such time that the vision of a uniform Civil Code is
  achieved. The same can only happen by the collective
  decision of the generation(s) to come to sink conflicting
  faiths and beliefs that are still active as on date. [para 11]
0
  [1113-C-G]

         7. Even though no serious or substantial debate has
    been made on behalf of the petitioner on the issue,
    abundant literature including the holy scripts have been
E   placed before the Court by the Board in support of its
    contention. The Fundamental Rights embodied in Part-
    111 of the Constitution constitute the basic human rights
    which inhere in every person and such other rights
    which are fundamental to the dignity and well being of
F   citizens. While it is correct that the dimensions and
    perspectives of the meaning and content of fundamental
    rights are in a process of constant evolution as is bound
    to happen in a vibrant democracy where the mind is
    always free, elevation of the right to adopt or to be
G   adopted to the status of a Fundamental Right will have
    to await a dissipation of the conflicting thought
    processes in this sphere of practices and belief
    prevailing in the country. The legislature which is better
    equipped to comprehend the mental preparedness of the
H   entire citizenry to think unitedly on the issue has
  SHABNAM HASHMI v. UNION OF INDIA & ORS.             1107

expressed its view, for the present, by the enactment of A
the JJ Act 2000 and the same must receive due respect.
Conflicting view points prevailing between different
communities, as on date, on the subject makes the vision
contemplated by Article 44 of the Constitution i.e. a
Uniform Civil Code a goal yet to be fully reached and the B
Court is reminded of the anxiety expressed by it earlier
with regard to the necessity to maintain restraint. The
present is not an appropriate time and stage where the
right to adopt and the right to be adopted can be raised
to the status of a fundamental right and/or to understand ·c
such a right to be encompassed by Article 21 of the
Constitution. [Para 13) [1114-C-G; 1115-A]

     In re: Manuel Theodore D'souza (2000) 3 BomCR 244:
Philips Alfred Malvin Vs. Y.J.Gonsalvis & Ors. AIR 1999
Kerala 187 - referred to.                                      0

                     Case Law Reference:
    1984 (2) SCR 795          Relied on           Para 2
    (2000) 3 Born CR 244 Referred to              Para 12
                                                               E
    AIR 1999 Kerala 187       Referred to         Para 12
    CIVIL ORIGINAL JURISDICTION : Under Article 32 of the
Constitution of India.

    Writ Petition (Civil) No. 470 of 2005.                     F
     R.K. Khanna ASG, Colin Gonslaves, J.S. Attri, Raju Rama
Chandran, Y.H. Muchhala, Huzefa Ahmadi, A. Mariaputham,
Saurab Ajay Gupta, Suryanarayana Singh, Manjit Singh, AAGs,
Varnika Singh, Jyoti Mendiratta, Sunita Sharma, Seema Rao,     G
Anirudh Tanwar, V.N. Subramanium, A.K. Kaul, D.S. Mahra,
Sushma Suri, B. Krishna Prasad, Ejaz Maqbool, Tanima
Kishore, Mrigank Prabhakar, K. Enatoli Serna, Amit Kumar
Singh, J.S. Chhabra, Pragati Neekhra, Mishra Saurabh,
Naveen Sharma, Vanshaja Shukla, Mukul Singh, Anil K. Jha,
Priyanka Tyagi, Bina Madhavan, Sapam Biswajit Meitei,          H
    1108     SUPREME COURT REPORTS                [2014] 2 S.C.R.

A Khwairakpam Nobin Singh, Aruna Mathur, Yusuf, Arputham,
  Aruna & Co. Balasubramanian, K.V. Jagdishvaran, G. Indira,
  Abhishek Atrey, Ashutosh Kr. Sharma, Babita Tyagi, Hemantika
  Wahi, Preeti Bhardwaj, Anip Sachthey, Mohit Paul, K.J. John
  & Co., Neeru Vaid, Ajay Pal, Gopal Singh,Corporate Law
B Group, Shibashish Misra, Milind Kumar, P.V. Yogeshwaran,
  Sanjay R. Hegde, B.S. Banthia, Anuvrat Sharma, T.V. George,
  G. Prakash, Naresh K. Sharma, Kamini Jaiwal, T. Harish
  Kumar, D. Bharathi Reddy, Aniruddha P. Mayee, Balaji
  Srinivasan, A. Subhashini, Debasis Misra for the appearing
C parties.
         The Judgment of the Court was delivered by
       RANJAN GOGOi, J. 1. Recognition of the right to adopt
  and to be adopted as a fundamental right under Part-Ill of the
  Constitution is the vision scripted by the public spirited
0
  individual who has moved this Court under Article 32 of the
  Constitution. There is an alternative prayer requesting the Court
  to lay down optional guidelines enabling adoption of children
  by persons irrespective of religion, caste, creed etc. and further
  for a direction to the respondent Union of India to enact an
E optional law the prime focus of which is the child with ·
  considerations like religion etc. taking a hind seat.
       2. The aforesaid alternative prayer made in the writ petition
  appears to have been substantially fructified by the march that
F has taken place in this sphere of law, gently nudged by the
  judicial verdict in Lakshmi Kant Pandey Vs. Union of lndia 1
  and the supplemental, if not consequential, legi$1ative
  innovations in the shape of the Juvenile Justice (Care And
  Protection of Children) Act, 2000 as amended in 2006
  {hereinafter for short 'the JJ Act, 2000) as also The Juvenile
G Justice (Care and Protection of Children) Rules promulgated
  in the year 2007 (hereinafter for short 'the JJ Rules, 2007').

        3. The alternative prayer made in the writ petition may be
    conveniently dealt with at the outset.
H   1.   (1984) 2 sec 244.
   SHABNAM HASHMI v. UNION OF INDIA & ORS.                   1109
             [RANJAN GOGOi, J.]
     The decision of this Court in Lakshmi Kant Pandey                A
(supra) is a high watermark in the development of the law
relating to adoption. Dealing with inter-country adoptions,
elaborate guidelines had been laid by this Court to protect and
further the interest of the child. A regulatory body, i.e., Central
Adoption Resource Agency (for short 'CARA') was                       B
recom·mended for creation and accordingly set up by the
Government of India in the year 1989. Since then, the said body
has been playing a pivotal role, laying down norms both
substantive and procedural, in the matter of inter as well as in
country adoptions. The said norms have received statutory             c
recognition on being notified by the Central Govt. under Rule
33 (2) of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 and are today in force throughout the country,
having also been adopted and notified by several states under
the Rules framed by the states in exercise of the Rule making
                                                                      0
power under Section 68 of the JJ Act, 2000.

    4. A brief outline of the statutory developments in the
concerned sphere may now be sketched.

      In stark contrast to the provisions of the JJ Act, 2000 in      E
force as on date, the Juvenile Justice Act, 1986 (hereinafter for
short 'the JJ Act, 1986') dealt with only "neglected" and
"delinquent juveniles". While the provisions of the 1986 Act
dealing with delinquent juveniles are not relevant for the present,
all that was contemplated for a 'neglected juvenile' is custody       F
in a juvenile home or an order placing such a juvenile under the
care of a parent, guardian or other person who was willing to
ensure his good behaviour during the period of observation as
fixed by the Juvenile Welfare Board. The JJ Act, 2000
introduced a separate chapter i.e. Chapter IV under the head          G
'Rehabilitation and Social Reintegration' for a child in need
of care and protection. Such rehabilitation and social
 reintegration was to be carried out alternatively by adoption or
foster care or sponsorship or by sending the child to an after-
care organization. Section 41 contemplates adoption though
                                                                      H
    1110    SUPREME COURT REPORTS                    [2014] 2 S.C.R.


A   it makes it clear that the primary responsibility for providing care
    and protection to a child is his immediate family. Sections 42,
    43 and 44 of the JJ Act, 2000 deals with alternative methods .
    of rehabilitation namely, foster care, sponsorship and being
    looked after by an after-care organisation.
B
          5. The JJ Act, 2000, however did not define 'adoption' and
    it is only by the amendment of 2006 that the meaning thereof
    came to be expressed in the following terms:

         "2(aa)-"adoption" means the process through which the
c        adopted child is permanently separated from his biological
         parents and become the legitimate child of his adoptive
         parents with all the rights, privileges and responsibilities
         that are attached to the relationship"

0       6. In fact, Section 41 of the JJ Act, 2000 was substantially
  amended in 2006 and for the first time the responsibility of
  giving in adoption was cast upon the Court which was defined
  by the JJ Rules, 2007 to mean a civil court having jurisdiction
  in matters of adoption and guardianship including the court of
E the district judge, family courts and the city civil court. [Rule 33 ·
  (5)] ,Substantial changes were made in the other sub-sections
  of Section 41 of the JJ Act, 2000. The CARA, as an institution,
  received statutory recognition and so did the guidelines framed
  by it and notified by the Central Govt. [Section 41 (3)].

F      7. In exercise of the rule making power vested by Section
  68 of the JJ Act, 2000, the JJ Rules, 2007 have been enacted.
  Chapter V of the said Rules deal with rehabilitation and social
  reintegration. Under Rule 33(2) guidelines issued by the CARA,
  as notified by the Central Government under Section 41 (3) of
G the JJ Act, 2000, were made applicable to all matters relating
  to adoption. It appears that pursuant to the -JJ Rules, 2007 and
  in exercise of the rule making power vested by the JJ Act, 2000
  most of the States have followed suit and adopted the
  guidelines issued by CARA making the same applicable in the
H matter of adoption within the territorial boundaries of the
   SHABNAM HASHMI v. UNION OF INDIA & ORS.                   111.1
             [RANJAN GOGOi, J.]
concerned State.                                                      A

      Rules 33(3) and 33(4) of the JJ Rules, 2007 contain
elaborate provisions regulating pre-adoption procedure i.e. for
declaring a child legally free for adoption. The Rules also
provide for foster care (including pre-adoption foster care) of       8
such children who cannot be placed in adoption & lays down
criteria for selection of families for foster care, for sponsorship
and for being looked after by an aftercare organisation.
Whatever the Rules do not provide for are supplemented by the
CARA guidelines of 2011 which additionally provide measures           C
for post adoption follow up and maintenance of data of
adoptions.

     8. It will now be relevant to take note of the stand of the
Union of India. Way back on 15th May, 2006 the Union in its
counter affidavit had informed the Court that prospective             D
parents, irrespective of their religious background, are free to
access the provisions of the Act for adoption of children after
following the procedure prescribed. The progress on the ground
as laid before the Court by the Union of India through the
Ministry of Women and Child Development (respondent No. 3             E
herein) may also be noticed at this stage. The Union in its
written submission before the Court has highlighted that at the
end of the calendar year 2013 Child Welfare Committees
(CWC) are presently functioning in a total of 619 districts of the
country whereas State Adoption Resource Agencies (SARA)               F
has been set up in 26 States/Union Territories; Adoption
Recommendation Committees (ARCs) have been constituted
in 18 States/Union Territories whereas the number of
recognized adoption organisations in the country are 395.
According to the Union the number of reported adoptions in the        G
country from January, 2013 to September, 2013 was 19884 out
of which 1712 cases are of inter-country adoption. The third
respondent has also drawn the attention of the Court that
notwithstanding the time schedule specified in the guidelines
of 2011 as well as in the JJ Rules, 2007 there is undue delay         H
    1112    SUPREME COURT REPORTS                  [2014] 2 S.C.R.


A   in processing of adoption cases at the level of Child Welfare
    c·ommittees (CWS), the Adoption Recommendation
    Committees (ARCs) as well as the concerned courts.

        9. In the light of the aforesaid developments, the petitioner
B in his written submission before the Court, admits that the JJ
  Act, 2000 is a secular law enabling any person, irrespective of
  the religion he professes, to take a child in adoption. It is akin
  to the Special Marriage Act 1954, which enables any person
  living in India to get married under that Act, irrespective of the
  religion he follows. JJA 2000 with regard to adoption is an
C enabling optional gender-just law, it is submitted. In the written
  arguments filed on behalf of the petitioner it has also been
  stated that in view of the enactment of the JJ Act, 2000 and
  the Amending Act of 2006 the prayers made in the writ petition
  with regard to guidelines to enable. and facilitate adoption of
D children by persons irrespective of religion, caste, creed etc.
  stands satisfactorily answered and that a direction be made by
  this Court to all States, Union Territories and authorities under
  the JJ Act, 2000 to implement the provisions of Section 41 of
  the Act and to follow the CARA guidelines as notified.
E
        10. The All India Muslim Personal Law Board (hereinafter
  referred to as 'the Board') which has been allowed to intervene
  in the present proceeding has filed a detailed written
  submission wherein it has been contended that under the JJ
F Act, 2000 adoption is only one of the methods contemplated
  for taking care of a child in need of care and protection and
  that Section 41 explicitly recognizes foster care, sponsorship
  and being look after by after-care organizations as other/
  alternative modes of taking care of an abandoned/surrendered
G child. It is contended that Islamic Law does not recognize an
  adopted child to be at par with a biological child. According to
  the Board, Islamic Law professes what is known as the "Kafala"
  system under which the child is placed under a 'Kafil' who
  provides for the well being of the child including financial
H support and thus is legally allowed to take care of the child
   SHABNAM HASHMI v. UNION OF INDIA & ORS.                   1113
             [RANJAN GOGOi, J.]
though the child remains the true descendant of his biological        A
parents and not that of the "adoptive" parents. The Board
contends that the "Kafala" system which is recognized by the
United Nation's Convention of the Rights of the Child under
Article 20(3) is one of the alternate system of child care
contemplated by the JJ Act, 2000 and therefore a direction            B
should be issued to all the Child Welfare Committees to keep
in mind and follow the principles of Islamic Law before declaring
a muslim child available for adoption under Section 41(5) of
the JJ Act, 2000.

     11. The JJ Act, 2000, as amended, is an enabling
                                                                      c
legislation that gives a prospective parent the option of
adopting an eligible child by following the procedure prescribed
by the Act, Rules and the CARA guidelines, as notified under
the Act. The Act does not mandate any compulsive action by
any prospective parent leaving such person with the liberty of        D
accessing the provisions of the Act, if he so desires. Such a
person is always free to adopt or choose not to do so and,
instead, follow what he comprehends to be the dictates of the
personal law applicable to him. To us, the Act is a small step
in reaching the goal enshrined by Article 44 of the Constitution.     E
Personal beliefs and faiths, though must be honoured, cannot
dictate the operation of the provisions of an enabling statute.
At the cost of repetition we would like to say that an optional
legislation that does not contain an unavoidable imperative
cannot be stultified by principles of personal law which;             F
however, would always continue to govern any person who
chooses to so submit himself until such time that the vision of
a uniform Civil Code is achieved. The same can only happen
by the collective decision of the generation(s) to come to sink
conflicting faiths and beliefs that are still active as on date.      G

      12. The writ petitioner has also prayed for a declaration
that the right of a child to be adopted and that of the prospective
parents to adopt be declared a fundamental right under Article
21 of the Constitution. Reliance is placed in this regard on the
                                                                      H
    1114     SUPREME COURT REPORTS                  [2014] 2 S.C.R.


A views of the Bombay and Kerala High Courts in In re: Manuel
  Thepdore D'souza 2 and Philips Alfred Malvin Vs.
  Y.J.Gonsalvis & Ors. 3 respectively. The Board objects to such
  a declaration on the grounds already been noticed, namely, that
  Muslim Personal Law does not recognize adoption though it
B does not prohibit a childless couple from taking care and
  protecting a child with material and emotional support.

          13. Even though no serious or substantial debate has been
    made on behalf of the petitioner on the issue, abundant
C   literature including the holy scripts have been placed before the
    Court by the Board in support of its contention, noted above.
    Though enriched by the lengthy discourse laid before us, we
    do not think it necessary to go into any of the issues raised.
    The Fundamental Rights embodied in Part-Ill of the Constitution
    constitute the basic human rights which inhere in every person
D   and such other rights which are fundamental to the dignity and
    well being of citizens. While it is correct that the dimensions
    and perspectives of the meaning and. content of fundamental
    rights are in a process of constant evolution as is bound to
    happen in a vibrant democracy where the mind is always free,
E   elevation of the right to adopt or to be adopted to the status of
    a Fundamental Right, in our considered view, will have to await
    a dissipation of the conflicting thought processes in this sphere
    of practices and belief prevailing in the country. The legislature
    which is better equipped to comprehend the mental
F   preparedness of the entire citizenry to think unitedly on the
    issue has expressed its view, for the present, by the enactment
    of the JJ Act 2000 and the same must receive due respect.
    Conflicting view points prevailing between different
    communities, as on date, on the subject makes the vision
G   contemplated by Article 44 of the Constitution i.e. a Uniform
    Civil Code a goal yet to be fully reached and the Court is
    reminded of the anxiety expressed by it earlier with regard to
    the necessity to maintain restraint. All these impel us to take
    2.   (2000) 3 BomCR 244.
H   3.   AIR 1999 Kerala 187.
   SHABNAM HASHMI v. UNION OF INDIA & ORS.                    1115
             [RANJAN GOGOi, J.]
the view that the present is not an appropriate time and stage         A
where the right to adopt and the right to be adopted can be
raised to the status of a fundamental right and/or to understand
such a right to be encompassed by Article 21 of the
Constitution. In this regard we would like to observe that the
decisions of the Bombay High Court in Manuel Theodore                  B
D'souza (supra) and the Kera la High Court in Philips .Alfred
Malvin (supra) can be best understood to have been rendered
in the facts of the respective cases. While the larger question
i.e. qua F\,mdamental Rights was not directly in issue before
the Kerala High Court, in Manuel Theodore D'souza (supra)              c
the right to adopt was consistent with the canonical law
applicable to the parties who were Christians by faith. We hardly
need to reiterate the well settled principles of judicial restraint,
the fundamental of which requires the Court not to deal with
issues of Constitutional interpretation unless such an exercise        0
is but unavoidable.

     14. Consequently, the writ petition is disposed of in .terms
of our directions and observations made above.

D.G.                                   Writ Petition disposed of.      E