Addressing The Discrepancy Between Sections 35(1) And 35(3) Of The Juvenile Justice Act, 2015

This article examines the discrepancy in the language of Section 35 of the Juvenile Justice Act, examines problems that could occur, especially in cases of unilateral child surrender, and proposes an amendment to resolve the inconsistency.

Understanding Sections 35(1) and 35(3) of the Act

Section 35 of the Juvenile Justice Act prescribes the procedure to be followed by parents or guardians who wish to surrender a child to the State for adoption. Section 35(1) reads as follows:

"A parent or guardian, who for physical, emotional, and social factors beyond their control, wishes to surrender a child, shall produce the child before the Committee."

The phrase “a parent” implies that a single parent or guardian can unilaterally initiate the surrender process.

In contrast, Section 35(3) states:

"The parents or guardian who surrendered the child, shall be given two months’ time to reconsider their decision and in the intervening period the Committee shall either allow, after due inquiry, the child to be with the parents or guardian under supervision, or place the child in a Specialised Adoption Agency, if he or she is below six years of age, or a children’s home if he is above six years”

Section 35(3) refers to “parents,” indicating that both parents must participate in the surrender process. This inconsistency in the language of these provisions creates uncertainty and leads to practical challenges in their implementation.

Procedural Guidance in the Juvenile Justice Rules and CARA Regulations

The Juvenile Justice (Care and Protection of Children) Model Rules, 2016 (Juvenile Justice Rules), and the Adoption Regulations, 2022 (CARA Regulations) provide the procedures required to be followed for children being given up for adoption. However, they fail to fully address the ambiguity caused by the discrepancy between Section 35(1) and Section 35(3) of the Act.

Rule 19(22) of the Juvenile Justice Rules permits a single parent to make an application to surrender a child using Form 23 and reads as follows:

“When a parent or guardian, wishes to surrender a child under sub-section (1) of section 35 of the Act, such parent or guardian shall make an application to the Committee in Form 23. Where such parent or guardian is unable to make an application due to illiteracy or any other reason, the Committee shall facilitate the same through the Legal Aid Counsel provided by the Legal Services Authority, the deed of surrender shall be executed as per Form 24.”

Form 24, the Deed of Surrender executed to complete the surrender, begins with the words “I/We,” implying that either parent can surrender a child.

The CARA Regulations, particularly Regulation 7, outline the process for categorizing a child as either “surrendered” or “abandoned.” The Regulation allows single parents, including unwed mothers, to surrender children and prescribes a procedure for the same. However, as recent Kerala and Bombay High Court judgments show, the procedure is not foolproof.

Kerala High Court Judgment

In 2021, the Kerala High Court dealt with a case (RPJJ.No.2 of 2021- Parties’ names were withheld to protect privacy) in which a child was surrendered by an unmarried woman who was in a live-in relationship with the child’s biological father. The Court examined the distinction between “surrendered” and “abandoned” children under the Juvenile Justice Act and CARA Regulations. It observed that when one parent surrenders the child, and the other parent's whereabouts are unknown, the child should be treated as abandoned, triggering an inquiry under Regulation 6 of the CARA Regulations to trace the missing parent.

The Court further held that children born in live-in relationships should ordinarily be treated as if they were born to married couples. However, it held that if the mother refuses to acknowledge the father’s identity, she may be treated as an unmarried mother for surrender.

Bombay High Court Judgment

More recently, the Bombay High Court, in Ramu Maruti Gadivdar v State of Maharashtra & Others (Criminal Writ Petition 339 of 2023), dealt with a case in which the biological father sought custody of his child, whose mother had unilaterally surrendered it. In this case, the Petitioner and the child’s mother were in a relationship. However, he was arrested pursuant to an FIR filed by the girl’s father, after which the child was surrendered, leading the father to approach the Bombay High Court seeking custody of his child.

The High Court eventually disposed of the Petition after noting that the child had been handed over to the Petitioner during the proceedings' pendency. However, the Court noted that this was not a case where the father was untraceable; rather, he had made every effort to have the child handed over to him, and hence, the Child Welfare Committee (CWC) was right to hand over the child to him.

Practical Challenges Arising from the Discrepancy

The inconsistency in the language of Sections 35(1) and 35(3) of the Juvenile Justice Act can cause several practical challenges during the process of surrendering a child for adoption. Furthermore, as evidenced by the cases before the Kerala and Bombay High Courts, the procedures prescribed in the Juvenile Justice Rules and CARA Regulations do not appear to provide adequate solutions.

Apart from the children themselves, the discrepancy in the language of the provisions also creates issues for the Child Welfare Committees (CWCs). As the primary authorities overseeing the surrender and adoption process, the CWCs have the unenviable task of ensuring that the surrender is lawful while keeping the child’s interests at the forefront. However, the ambiguity between the provisions of the Act and the procedural flexibility offered by Rule 19(22) creates uncertainty about the circumstances in which they can lawfully accept single-parent surrenders.

Proposed Legislative Amendments

The inconsistency in the language of Sections 35(1) and 35(3) of the Juvenile Justice Act can be resolved through an amendment to Section 35(1). The authors propose the following revised provision:

" The parents or guardian, who for physical, emotional, and social factors beyond their control, wish to surrender a child, shall produce the child before the Committee. In cases where the Committee is prima facie satisfied that one of the parents is deceased, incapacitated, untraceable, or has abandoned the family, the consent of the parent with custody of the child shall suffice for the surrender."

The above provision would harmonize Section 35(1) and Section 35(3) of the Juvenile Justice Act with each other and the Juvenile Justice Rules and CARA Regulations. All relevant provisions would then state that, while ideally, both parents are required to surrender a child, where one parent is unavailable for reasons such as death, incapacity, or abandonment, the other parent can unilaterally surrender the child. The amendment would also provide an additional safeguard that CWCs would have to be prima facie satisfied that it is not possible for both parents to surrender the child. However, what constitutes prima facie satisfaction should be left to the CWCs to decide on a case-to-case basis as they are the subject matter experts.

The proposed amendment strikes a balance between protecting the rights of both parents and addressing the practical challenges when the child is in the custody of a single parent for reasons beyond their control. It upholds the principle that both parents should ideally participate in decisions affecting the child while recognizing that this is not always feasible.

Finally, an amendment to Section 35(1) of the Juvenile Justice Act reinforces the principle of prioritizing the child's best interests by reducing the risk of prolonged litigation and administrative delays. This approach aligns with the Juvenile Justice Act's objectives, ensuring that surrendered children can be swiftly placed in permanent, loving homes.

It is clear that an amendment to Section 35(1) of the Juvenile Justice Act is needed to protect parental rights and the interests of surrendered children. This amendment will help the Juvenile Justice Act fulfil its intended purpose of safeguarding children’s welfare.

Authors are lawyers practicing in the Bombay High Court and other Courts in Mumbai.

[The opinions expressed in this article are those of the authors. Verdictum does not assume any responsibility or liability for the contents of the article.]