People regard the institution of adoption as important as the institution of marriage. The Hindu Marriage Act, 1955, in its explanation to Section 3(1) while defining relationship, included ‘relation by adoption as relation by blood’. It thus acquires the shape of a natural birth. Chapter II of the Hindu Adoptions and Maintenance Act (HA&MA) 1956 deals with the giving and taking of adoptions. Under the law, every Hindu man or woman who has attained 18 years of age, can adopt a child.
Hindu adoption is irrevocable and confers on the adopted child all rights of a naturally born. In fact, adoption is not a contract, it is a status. Therefore, a couple opting for adoption has to weigh all pros and cons carefully before exercising this option.
Ironically, there is no uniform adoption law (UAL) in the country that ensures the rights of adopted children and obligations of adoptive parents. Instead, laws, more than a century old, are divided on communal lines. There is a law for Hindus and one for non-Hindus. A Hindu can adopt under the HA&MA of 1956, while others have to invoke the Juvenile Justice (Care and Protection of Children) Act [JJ(C&POCA)] 2000.
The Supreme Court (SC), in the landmark judgment in Shabnam Hashmi case last year, ruled that anybody under this secular law, irrespective of his or her religion could adopt a child until Parliament enacted a proper law on the subject. However, it left many issues unaddressed in its ruling, according to legal experts. Prior to this, Muslims, Christians, Jews and those from the Parsi community only had to take recourse to the Guardians and Wards Act (G&WA) of 1890.
However, the G&WA is full of discrepancies and despite persistent demands from various social groups, nothing has been done to rectify them. Under this law, the parents are simply appointed as guardians and the child a ward, with no right to inheritance. Once they grow up, such children have a lurking fear that they might be abandoned if the parents have a children of their own later.
Moreover, when the child attains adulthood, he or she can choose a religion and decide whether or not to continue in the foster home thereafter. Naturally, this suspicion of insecurity tends to strain relationships and causes immense sorrow to such parents who feel that they can never have a child in their life-time. In comparison, children given under guardianship abroad are more secure as local laws there allow such families to adopt them.
In order to enact a UAL, a bill was introduced in Parliament in 1972 but it was bitterly opposed by some Muslim organisations terming it un-Islamic and against their personal law. Had it become an Act then, anybody irrespective of religion and caste could adopt a child.
Shabnam Hashmi, a social activist, would not have to fight a long legal battle for nine years before the SC for adopting an orphan girl. Another similar Adoptions Bill introduced in the Rajya Sabha again in 1980, was lapsed with the passage of time.
The SC, in another landmark judgment in 1990, laid down the procedure for legal adoption for both Hindus and non-Hindus observing that no child could grow to his or her full stature outside the framework of a family. It made some guidelines to streamline the entire process of adoption. Time-limit to move the court for adoption was fixed for 5 weeks. A nodal agency – Central Adoption Resource Agency also came into force on the recommendation of Justice P N Bhagwati Committee in 1992 to scrutinise all adoption applicants including those from foreigners. But the law was still different for Hindus and non-Hindus and continued to be anomalous.
Natural family life
Again, a Public Interest Litigation (PIL) plea was filed in the SC for making adoption laws easier. It raised a pertinent question as to whether the State had fulfilled its obligation with regard to ensuring a child the right to a natural family life and all related benefits in the light of constitutional provisions and various national and international conventions.
It also pleaded for providing necessary safeguards against mercenary or immo-ral objects. But the court turned down the petition as it felt that the judiciary should not interfere with personal laws.
The ball is now in the legislature’s court and it can no longer be indifferent and apathetic to this just cause. There are more than 32 million destitute children in India. They have a right to be brought up in an atmosphere of love and care. The State has the power to make any special law for the protection of women and children, but failed to fulfill its obligation so far.
There is perceptible change in people’s attitude now towards adoption. They have begun to realise that a child has no particular religion of his/her own. Even the craze for boys is on the wane. Today, there is a marked preference for girls, as couples seem to feel that daughters are more caring and loving than sons. This change of heart is indeed welcome and should be exploited.
The government should enact a UAL without any further delay on the pattern of the Special Marriage Act defining in clear term the ancestral rights of the adopted child and obligations of the ad-optive parents leaving no ambiguity of any kind owing to conflicting provisions of different personal laws. Having a universal law on these lines will give security to both, the child and the parents.
It will enable all aspirants to adopt irrespective of their religion, caste, race and sex. A uniform law will not only help fulfill the aspirations of childless couples, but also give a home to thousands of orphaned children, at large, languishing in “homes” that are worse than hell.
(The writer is Advocate, Supreme Court)