ANURAG PRIYADARSHI Vs. STATE OF J&K

JUDGEMENT

(1.) A female baby of about 3 months age was found abandoned enroute the Holy Shrine of Shri Mata Vaishno Devi on 6th May, 2009. In this behalf FIR under section 317 RPC was registered by Police Station Bhawan (Vaishno Devi) on the same day. The petitioners (husband and wife), who hail from New Delhi and do not have any child, whether biological or adopted, have expressed desire to adopt the child but the difficulty is that the State -respondent objects to it on the ground that there is no law permitting adoption in these circumstances, applicable in the State. The petitioners grievance is that amendment to Section 9(4) of Central Hindu Adoptions and Maintenance Act, 1956 incorporated in the year 1962, has not been made applicable to the State of Jammu and Kashmir. They state that had this been done, the petitioner could have adopted the said child. In the circumstances they seek a writ of certiorari to quash Section 9 of the Jammu & Kashmir Hindu Adoption and Maintenance Act, 1960 on the ground that the same is ultra -vires to the Constitution of India to the extent that it does not permit adoption of abandoned child whose parents are not known. The petitioners further seek a direction that respondent -1 be directed to give child in adoption to the petitioner.

(2.) IN the reply submitted to the present petition the respondents have stated that the provisions of J&K Hindu Adoption and Maintenance Act, 1960 are constitutionally valid and challenge to section 9 of the Act is misconceived. The respondents further state that the said provision does not permit adoption of child to a non -State subject as such prayer made cannot be allowed. The respondents further state that the petitioners have already availed remedy under the provisions of Jammu & Kashmir Juvenile Justice Act, 1997. Sub Judge Judicial -Magistrate, Katra on 18.5.2009 passed orders regarding custody of the child, if the petitioners are aggrieved of the same they should seek a proper remedy in this behalf.

(3.) HEARD . I have considered the matter.