ADOPTION IN INDIA: AN OVERVIEW
THIS ARTICLE WAS WRITTEN BY ABINAYA SAIKUMAR, A STUDENT OF SASTRA UNIVERSITY.
INTRODUCTION:
Adoption of a child can be explained as a process in which there is a creation of a parent and child relationship, which may or may not be biologically related. This results in transfer of all the legal rights and responsibilities of the child to the adoptive parent. India is a diverse country and there are many religions but there is no a common laws for governing adoption in our country. The importance of adoption can be understood from the fact that it gives new families to the children who cannot be brought up or abandoned by their biological families. Adoption is governed only through personal laws and the child gets the identity of their adoptive parents. Presently in our country, the adoption among the Hindus, Buddhists and Jains are governed through the Hindu Adoption and Maintenance Act, 1956 and other religions like Muslims, Christians, Jews and Parsis, do not have their own personal laws regarding adoption due to which they are unable to adopt a child. There is a need of uniform law to govern adoption so that every eligible childless willing parent could adopt and this uniform law would be an initiative to remove all chaos in regard to adoption followed in difference by different religion and see the matter in one single lens.
THE HINDU ADOPTION AND MAINTENANCE ACT, 1956:
This act applies to all Hindus, Buddhists, Jains and Sikhs and it came into force on 21st December 1956. In the case of Kumar Suren v. State of Bihar[1], the court held that the Hindu Adoption and Maintenance Act, 1956 provided only for adoption of Hindus and not Muslims. Prior to this act only male could be adopted, mainly to carry their family name and to perform the funeral ceremonies. But after this act right was given to adopt both male and female child. This act mainly lays down principles by removing gender basis discrimination and gives both a male and a female to adopt, where earlier this right was envisaged only to the male. Under this act a Hindu male can adopt a child even if he is a bachelor, divorcee and in case if he is married, he must have the consent of his wife while adopting and also if he is adopting a female child, there has to be an age gap of at least 21 years. Similarly, an unmarried or widow Hindu female can adopt a child but a married woman has no capacity to adopt a child, not even with the husband’s consent. For a married woman, in order to adopt, the adoption must be done by her husband. There exists a limitation in this act, where a parent cannot adopt a child of a particular gender if they have already adopted child of same gender.
THE GUARDIANS AND WARDS ACT, 1890:
Since the personal laws of Muslims, Christians, Jews and Parsis, do not permit adoption, The Guardians and Wards act, 1890 is applicable to those religions. Under this act, after adoption, the relationship established is only that of a guardian and ward where the child do not confer a title that of an adoptive child. When the child attains the age of 21 years, they are no longer consider as wards and attain a status of an individual. Even the child is not secure after attaining the age of 18 because the child will have weaker inheritance rights as this can be challenged by other children and relatives of the family[2].
Islam does not recognize adoption. In Muhammad Allahdad Khan v. Muhammad Ismail[3], Mahmood, J., remarked that, “There is nothing in the Mohammedan Law similar to adoption as recognised in Roman and Hindu system. The Mohammedan law does not recognize adoption as a mode of filiation”.
In re: Manuel Theodore Dsouza[4] and Philips Alfred Malvin Vs. Y.J.Gonsalvis & Ors[5]. The Board objects to such a declaration on the grounds already been noticed, namely, that Muslim Personal Law does not recognize adoption though it does not prohibit a childless couple from taking care and protecting a child with material and emotional support.
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015:
This act replaced the Indian juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000 which is applicable to all the citizens of India and in case of adoption gives the status of a parent and not that of guardian and ward. It also gives all the rights to the adopted child and most importantly enables the adoption of two children of the same gender. The main aim of this act is to provide rehabilitation of orphaned, abandoned and surrendered children and it recognises adoption as one of the ways to facilitate the rehabilitation of children.
In the recent case of Shabnam Hashmi v. Union of India, it was held that the provisions of the Juvenile Justice Act,2000, shall supersede the personal laws and any Muslim couple wanting to adopt, can adopt under the provisions of the secular law. Though the court refused to make the right to adopt a fundamental right, it observed that till the uniform civil code comes into existence, the law of the land shall prevail over the personal laws.[6] The Supreme Court ruled that any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of religion he or she follows and even if the personal laws of the particular religion does not permit it.[7]
POSITION FOR CHILDREN IN CONSTITUTION OF INDIA:
There are provisions in our constitution which imposes privileges to children in our country. One of the rights is provided under Article 21 which reads as: “No person shall be deprived of his life or personal liberty except according to a procedure established by law”[8]. Thus this article gives every child to live with dignity.
Article 24 of the Indian constitution provides rights against exploitation to the children below 14 years age.[9]
Article 39 of the Indian Constitution requires its states to direct its policies. To provide healthy environment to the children and make sure that they are given opportunities and facilities. It gives them a sense of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.[10]
The permeable of the constitution explicitly describes India as a secular country, where the state claims to treat all its citizens equally regardless of religion.[11]
CONCLUSION:
Since our country is tangled by the presence of different religions and their own personal laws, certain matters such as adoption require the imposition of a Uniform Civil Code by the state under Article 44 of the Indian Constitution, 1950, so that every citizen irrespective of their religion receives certain rights such as the right to adopt a child. The landmark judgement of Mohd. Ahmed Khan v. Shah Bano Begum[12], referred to as the Shah Bano case, which pointed put the significant need of civil code in our country. There is a bar in the religious community of many childless parents who are willing to adopt, and therefore it reduces the scope of adoption our country. There are so many laws to regulate adoption, instead if there is a common secular law for every citizen to adopt, then, many homeless children can get a family, and many childless and willing parents can get a child to nurture.
[1] AIR 2008 Pat 24.
[2] Adoptions for All, Economic & Political Weekly, March 15, 2014 vol xlix no 11.
[3] ILR (1888) 12 ALL. 289.
[4] (2000) 3 BomCR 244.
[5] AIR 1999 Kerala 187.
[6] AIR 2014 SC 1281.
[7] Harish V. Nair, “Supreme Court Grants Adoption Rights to Muslims”, India Today, 20thFebruary, 2014.
[8] Article 21-The Indian Constitution, 1950.
[9] Article 24- The Indian Constitution, 1950.
[10] Article 39- The Indian Constitution, 1950.
[11] The Preamble, “We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens: justice; liberty; equality; fraternity; in our constituent assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this constitution.
[12] AIR 1985 SC 945.
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