M.M.S. Bedi, J.

1. The petitioners have filed this revision petition under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000, for short the Act, aggrieved by an order dated August 31, 2010, passed by Civil Judge, (Senior Division), Jalandhar, vide which a petition under Section 41 (6) (c) of the Act for adoption of a minor male child under the custody of respondent Nari Niketan Trust, has been rejected, on the ground that the petitioners have already adopted a male child named, Anmol Mittal on May 26, 2010 from Nari Niketan Trust, (Regd.) Jalandhar vide adoption deed dated May 26, 2010, cannot be permitted to adopt second son in view of provisions of Section 11 of the Hindu Adoption and Maintenance Act, 1956, for short the 1956 Act. The short question which is required to be answered in the present revision petition is, whether Section 41 (6) (c) of the Act would not permit the adoption of a second child of the same sex by a Hindu in view of statutory bar under Section 11(i) of the 1956 Act.

2. It is not disputed that the petitioners are Hindu by religion and they have already adopted a male child Anmol Mittal on May 26, 2010 from Nari Niketan Trust Regd., Nakodar Road, Jalandhar vide adoption deed executed on May 26, 2010. A copy of the said adoption deed has been placed on record as annexure P-1.

3. The petitioners claimed that they are basically fit and financially capable enough to undertake the responsibility of adopting the second child as such they had filed an application, annexure P-2 under Section 41 (6) (c) of the Act for adoption of the minor male child Vishav, now named as Ujjawal Mittal, an abandoned child who is under care and custody of respondent Nari Niketan Trust (Regd.), Nakodar Road, Jalandhar.

4. Vide impugned order dated August 31, 2010, Civil Judge (Senior Division), Jalandhar, dismissed the petition holding that under Section 41 (6) (c) of the Act, there was a bar on adopting a second male child in view of the legislation having adopted word "child" in place of "children", besides placing reliance on Section 11(i) of the 1956 Act.

5. Before taking up the matter, it would be relevant to refer to Section 11 of the 1956 Act which reads as follows :-

11. (i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, sons son or sons sons son (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or sons daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;

6. So far as Section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000 is concerned, it reads as under :-

41. Adoption. - (1) The primary responsibility for providing care and protection to children shall be that of his family.

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

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

(4) The State Government shall recognize one or more of its institutions or voluntary organizations in each district as specialized adoption, agencies in such manner as may be prescribed for the placement of orphan, abandoned or surrendered children for adoption in accordance with the guidelines notified under subsection (3);

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

(5) No child shall be offered for adoption -

a. until two members of the Committee declare the child legally free for placement in the case of abandoned children,

b. till the two months period for reconsideration by the parent is over in the case of surrendered children, and

c. without his consent in the case of a child who can understand and express his consent

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

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

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

(c) to childless couples.

7. Since the matter involved the interpretation of Section 41 (6) (c) of the Act in context to the provisions of Section 11(i) of the 1956 Act, a Coordinate Bench of this Court had appointed Mr. Anmol Rattan Sidhu, Additional Solicitor General of India as amicus curiae to assist the Court in context to scope of for Section 41 (6) (c) of the Act enabling a Court to permit adoption of a child to a childless couple. The Court places on record the appreciation for efforts made by Mr. Sidhu and rendering valuable assistance in tracing the history of the National Policy for Welfare of Children (1974) by Government of India in the light of United Nation Convention on the Rights of the Child (UNCRC), 1989, the Haque convention on Inter-country Adoption-1993 and the guidelines for adoption of Indian Children issued vide notification dated May 29, 1995 in the light of judgment of L.K. Pandey v. Union of India, rendered by the Apex Court in SLP No. 1171 of 1982 and various guidelines which constituted base for amending Juvenile Justice (Care and Protection of Children) Act, 2000, in the year 2006 to ensure adequate protection and rehabilitation measures for children in need for care and protection.

8. After going through the detailed written submissions by Mr. Sidhu, I agree with him that adoption of orphaned, abandoned and surrendered children should be encouraged as it is a mode to provide them love, affection and care of the adoptive family and the restriction of numbers/ gender should be ignored in case the adoptive parents are able to satisfy the Courts that they are capable financially and emotionally to take care of the adoptive children. The controversy in Section 41 (6) (c) of the Act and that of Section 11 of the 1956 Act came up before Bombay High Court in the matter of Payal @ Sharinee Vinay Pathak, Mumbai, : 2009 (4) RCR (Civil) 401 [LQ/BomHC/2009/2044] wherein it was held that Hindu Adoption and Maintenance Act, 1956 establishes rule of general applicability in Hindu Family matters whereas Act establishes specific rule for adoption of a limited sub-clauses of persons abandoned, surrendered or orphaned children. The special provision modifies the operation of general rule without completely overriding it. Bombay High Court in the said judgment relying upon Partap Singh v. State of Jharkhand, 2005 (1) RCR (Cri) 836 arrived at a conclusion that 1956 Act and Juvenile Justice (Care and Protection of Children) Act, 2000 must be harmoniously construed. The relevant portion of the judgment reads as follows :-

20. The Hindu Adoptions and Maintenance Act, 1956 and the Juvenile Justice Act, 2000 must be harmoniously construed. The Hindu Adoptions and Maintenance Act, 1956 deals with conditions requisite for adoption by Hindus. The Juvenile Justice Act of 2000 is a special enactment dealing with children in conflict with law and children in need of care and protection. While enacting the Juvenile Justice Act 2000 the legislature has taken care to ensure that its provisions are secular in character and that the benefit of adoption is not restricted to any religious or social group. The focus of the legislation is on the condition of the child taken in adoption. If the child is orphaned, abandoned or surrendered, that condition is what triggers the beneficial provisions for adoption. The legislation seeks to ensure social integration of such children and adoption is one method to achieve that object. The religious identity of the child or of the parents who adopt is not a precondition to the applicability of the law. The law is secular and deals with conditions of social destitution which cut across religious identities. The legislature in its wisdom clarified in sub section (6) of Section 41 that the Court may allow a child to be given in adoption to parents to adopt a child of the same sex irrespective of the number of living biological sons or daughters. This provision is intended to facilitate the rehabilitation of orphaned, abandoned or surrendered children. The condition must apply to all persons irrespective of religious affiliation who seek to adopt children of that description. The object of rehabilitation and providing for social reintegration to orphaned, abandoned or surrendered children is a matter of high legislative policy. It is in effectuation of that policy that the legislature has stipulated that adoption of such a child must proceed irrespective of the marital status of a person taking in adoption and irrespective of the number of living biological children of the parents seeking adoption. Consequently, where the child which is sought to be adopted falls within the description of an orphaned, abandoned or surrendered child within the meaning of sub section (2) of Section 41 or a child in need of care and protection under clause (d) of Section 2, the provisions of the Juvenile Justice (Care and Protection of Children) Act 2000 must prevail. In such a case the embargo that is imposed on adopting a child of the same sex by a Hindu under clauses (i) and (ii) of Section 11 of the Hindu Adoptions and Maintenance Act, 1956 must give way to the salutary provisions made by the Juvenile Justice Act. Where, however, the child is not of a description falling under the purview of Chapter IV of the Juvenile Justice Act, 2000, a Hindu desirous of adopting a child continues to be under the embargo imposed by clauses (i) and (ii) of Section 11 of the Act of 1956. If the two pieces of legislation, both of which are enacted by Parliament are harmoniously construed, there is no conflict of interpretation.

9. The Bombay High Court also considered the conflicting provisions of Hindu Adoption and Maintenance Act, 1956 and Juvenile Justice (Care and Protection of Children) Act, 2000 and arrived at a conclusion that the Juvenile Justice Act, 2000 having been subsequently enacted would prevail, holding that the Juvenile Justice Act created an exception to the provisions of 1956 Act in cases of abandoned children. The relevant observations in this context are reproduced hereunder :-

25. Here, the Hindu Adoptions and Maintenance Act, 1956, establishes rules of general applicability in Hindu family matters, including rules for adoption. Considered against the entire swathe of Personal Law in India, it is a special act, providing rules applicable only to Hindus. In the field of adoption, however, it provides general principles of application to Hindus.

26. The Juvenile Justice Act, 2000, establishes specific rules for the adoption of a limited subclass of persons abandoned, surrendered, or orphaned children. The special provision modifies the operation of the general rule without completely overriding it: in general, Hindus cannot adopt a child of the same gender as an existing child, but there is a special rule in the case of abandoned, surrendered, or orphaned children. As in Bahadur, here the later act "has one special mission" establishing rules of adoption for a limited subclass of persons. Therefore, in these circumstances, the Juvenile Justice Act is a special act that overrides the general provisions of the Hindu Adoptions and Maintenance Act.

27. The Juvenile Justice Act, 2000, is best viewed as impliedly amending the conflicting provision of the Hindu Adoptions and Maintenance Act, rather than repealing it. The general prohibition of the earlier Act remains in force; the later Act simply creates an exception in the case of abandoned children.

10. It was finally held in the said judgment that a Hindu couple governed by the 1956 Act can adopt a child of the same gender under the provisions of the Act. Similar is the ratio of the another judgment of Bombay High Court in Indian Association for Promotion of Adoption and Child Welfare and Christopher Drury and Shenz Drury, wherein it was held that a couple already adopted one girl child is entitled to adopt another girl child under the Act reported in 1 FAP 1/2012 decided on January 13, 2012.

11. Before disposal of this petition, an attempt was made to ensure that adoption of minor is bonafide and for the welfare of the child. The petitioner had undertaken to fulfill any condition imposed by the Court to ensure the future welfare of the child. Prima facie the adoption in the present case is, in consonance with the provisions and objectives of The Juvenile Justice (Care and Protection of Children) Act, 2000 and The Juvenile Justice (Care and Protection of Children) Rules, 2007. I follow the opinion of Bombay High Court in the matter of Payals case (supra) and hold that the petitioners are entitled to adopt the second child. The impugned order dated August 31, 2010 is hereby set aside. However, in order to further safeguard the interest of the adopted child, it is ordered that a sum of ` 5 lacs will be deposited as security with Nari Niketan Trust for the welfare of the adoptive child for a period of five years. The said amount can be used by the petitioners and the defendant respondent for meeting any exigency for the welfare of the child as it has been informed that the adopted child has got some heart infirmity. The annual interest accruing on the amount of ` 5 lacs can be used for any welfare purpose by the respondent. The said amount, after 5 years will be deposited in the FDR account of the child till attaining majority.

Allowed in the aforesaid terms.