Can a Hindu couple adopt a child of the same gender under the JJ Act?

Yes, when the child is orphaned, abandoned, or surrendered, the JJ Act permits adoption even if the couple already has a biological child of the same gender.

Does HAMA Section 11 stop such adoptions?

No. For children covered by the JJ Act, the bar in HAMA Section 11(i)-(ii) does not apply. The JJ Act is a later, special law focused on child protection.

Which law prevails if there is a conflict—JJ Act or HAMA?

The JJ Act prevails. It is later in time and a special statute for children in need of care and protection, so it overrides general personal-law restrictions.

What types of children are covered by the JJ Act for adoption?

Children who are orphaned, abandoned, or surrendered, and those needing care and protection, as defined in the JJ Act. Adoption is a key mode of rehabilitation.

What did the Bombay High Court decide in this case?

It recognized that JJ Act adoptions can be granted despite HAMA’s same-gender bar, to serve the child’s best interests and secure rehabilitation.

Law Easy

31 October, 2025

251

Vinay Pathak and His Wife v. Unknown (2009) — JJ Act vs HAMA: Same-Gender Adoption | The Law Easy

Vinay Pathak and His Wife v. Unknown

Bombay High Court September 2009 JJ Act vs HAMA Adoption • Child Protection 6 min read

```

Primary Keywords: JJ Act adoption, HAMA Section 11, same-gender adoption, child in need of care and protection

Secondary Keywords: orphan abandoned surrendered, Section 41 JJ Act, Section 2(d), Bombay High Court 2009, guardianship to adoption

Citation: Bombay High Court, September 2009

CASE_TITLE: Vinay Pathak and His Wife v. Unknown

Quick Summary

A Hindu couple already had a daughter. They also cared for a girl who had been surrendered at birth. They asked the Bombay High Court to declare them adoptive parents. The Court read the Hindu Adoptions and Maintenance Act, 1956 (HAMA) together with the Juvenile Justice Act, 2000 (JJ Act). It held: where the child is orphaned, abandoned, or surrendered—a child in need of care and protection—the JJ Act allows adoption even if the couple has a biological child of the same gender. The child’s best interests and rehabilitation come first.

Judgment gavel image for JJ Act adoption prevailing over HAMA bar

Issues

Can Hindus adopt a child of the same gender when they already have a child, if adoption is under the JJ Act?

Rules

HAMA Section 11(i)-(ii) sets conditions, including same-gender limitations.
JJ Act is a later, special, secular law for children who are orphaned, abandoned, or surrendered (Section 2(d), 41).
Adoption is a mode of rehabilitation (Section 40, 41 JJ Act).
If the two laws conflict, the JJ Act prevails for such children.

Facts (Timeline)

2001 — Vinay Pathak and his wife Payal (Hindus) marry.

2003 — Their daughter is born.

A newborn girl is surrendered by birth parents at a nursing home; a two-month reclaim window is given but not used.

Bal Vikas (NGO) seeks court guardianship after counselling the birth parents.

2005 — Petitioners are appointed guardians; they care for the child for four years.

They petition for a declaration of adoption with full parental rights and duties.

Timeline graphic of guardianship leading to adoption under JJ Act

Arguments

Petitioners (Couple)

The child is surrendered and needs a permanent family; JJ Act supports adoption.
HAMA’s same-gender bar should not block adoption for JJ Act children.
Best interests: the child has lived with them for years; adoption secures identity and rights.

Court’s Consideration

Harmonious reading of HAMA and JJ Act.
JJ Act’s purpose: care, protection, and rehabilitation via adoption.
Later, special law (JJ Act) prevails where there is conflict.

Judgment

The Bombay High Court held that for children who are orphaned, abandoned, or surrendered, the JJ Act governs adoption. In such cases, HAMA Section 11’s same-gender limitation does not block adoption by Hindus who already have a biological child of that gender. The JJ Act, being a later and special enactment, prevails to secure the child’s best interests and rehabilitation.

Ratio Decidendi

JJ Act is a special, secular, and later statute. For a “child in need of care and protection,” JJ Act adoption provisions override general personal-law limits under HAMA. Harmonious construction puts the child’s welfare and rehabilitation first.

Why It Matters

Centers the child’s best interests and stable family life.
Clarifies that JJ Act adoption can proceed despite HAMA’s same-gender bar.
Supports secular, inclusive adoption for vulnerable children.

Key Takeaways

JJ Act Prevails Later, special law overrides general bar where child is OAS (orphaned/abandoned/surrendered).

Best Interests Adoption is a tool for rehabilitation and identity.

Harmonious Read HAMA + JJ Act read together; JJ Act modifies the general rule.

Mnemonic + 3-Step Hook

Mnemonic: O.A.S. WINS — Orphaned/Abandoned/Surrendered child → Welfare Is Next Step

Identify the child category (OAS / care & protection).
Apply JJ Act adoption provisions first.
Harmonize with HAMA; ignore same-gender bar if JJ Act conditions are met.

IRAC Outline

Issue

Can Hindus adopt a same-gender child under JJ Act despite HAMA Section 11?

Rule

JJ Act (Secs. 2(d), 40, 41) governs OAS children; later, special law prevails over HAMA’s general limits.

Application

Child was surrendered; lived with petitioners; JJ Act purpose met; best interests require adoption.

Conclusion

Adoption allowed; HAMA same-gender bar does not apply for JJ Act children.

Glossary

HAMA Section 11: Conditions for adoption by Hindus; includes a bar on adopting a child of the same gender in some cases.
Child in Need of Care & Protection: JJ Act category covering orphaned, abandoned, or surrendered children who need state and court support.
Rehabilitation: Goal of the JJ Act—securing a safe, permanent family through adoption, foster care, or other modes.

FAQs

No. Courts read both together. But for OAS children, JJ Act rules control adoption and can override HAMA’s same-gender bar.

It is focused on vulnerable children and sets specific, secular rules for their care, protection, and adoption—hence it prevails where needed.

The child was surrendered at birth, not reclaimed, placed under guardianship, and had lived with the couple for years—showing stability and best interests.

Yes. The JJ Act is secular. It allows eligible persons, regardless of religion, to adopt OAS children following prescribed procedure.

```

Comment

Nothing for now