This article is written by Sahaja, from NALSAR University of Law, Hyderabad. This article highlights the need for a uniform code for adoption in India.
Table of Contents
In ancient India, the adoption ceremony (dattahoma) is the most important witness of the adoption and it was necessary to invite relatives for the validity of the adoption ceremony. According to Smrtikaras, if a person adopts a child, he becomes the authority or successor to the entire property inherited, and the adopted child retains his or her right to the property even if a male is born after his or her adoption.
In India, the Hindu Adoption and Maintenance Act, 1956, is the only personal law that governs adoption. As Indian religions such as Muslims, Christians, Jews, and Parsis lack their own personal legislation governing adoption, they are unable to adopt a child and give him or her their family name. Under the Guardians and Wards Act of 1890, they can only become the child’s guardian.
The law of adoption
Adoption is a legal process in which a person takes someone into care and transfers to him all of the legal rights of a legitimate biological child. In other words, it is a child’s legal allegiance. Adoption has two purposes: one is religious in that it provides an heir for the adopter, and the other is secular in that it provides an heir and allows the adopter’s name to live on. Our secular country has two sets of adoption laws, the first being personal law and the second being the government’s secular law. A child can be adopted and an adult can adopt under Indian law, specifically Hindu personal law. The Hindu personal law system is the only one that allows for legal adoption. Many international human rights accords, such as the 1989 Convention on the Rights of the Child (CRC), clearly emphasise the affirmative need to offer protection and aid to children.
Hindu Adoption and Maintenance Act, 1956
The HAMA governs the legal process of Hindus adopting children, as well as the legal obligations that follow, including the upkeep of children, wives, and in-laws. According to the statute, a Hindu does not just refer to someone who practices Hinduism but also includes Buddhists, Jains, Sikhs, and members of the Arya Samaj. The Hindu Adoption and Maintenance Act applies to everyone living in India who is not a Christian, Muslim, Parsi, or Jew.
To adopt a child, you must be a Hindu and have the financial means to do so. A Hindu male who intends to adopt a kid must comply with Section 7 of the Act, while a Hindu female who wishes to adopt must follow Section 8 of the same. The conditions under Section 7 are: the Hindu must male must have attained majority, must have a living wife, be of sound mind and if he has more than one wife, the consent of all the wives are necessary.
The conditions under Section 8 for a Hindu female are: she must have attained the age of majority, must be of sound mind, and must either be unmarried, a widow, or divorced. A married woman cannot adopt a child.
According to Section 9 of the Hindu Adoption and Maintenance Act, only the child’s parents and guardians can give them up for adoption.
Only a Hindu can adopt a child under Hindu law if he or she follows the essentials laid out in Section 6 of the statute.
A Hindu male or female who wishes to adopt a son must not have a living son, grandson, or even great-grandson at the time of adoption, according to Section 11(i) of the legislation. It makes no difference if the son is biological, adopted, or illegitimate. They should not have a living son already. A person who wishes to adopt a daughter must not have a living daughter or granddaughter from their son at the time of the adoption, according to Section 11(ii).
If a Hindu woman wishes to adopt a male child, she must first meet the standards outlined in Section 8 of the Act and demonstrate that she is capable of doing so. She must also be 21 years old or older than the child she desires to adopt.
Kumar Sursen v. State of Bihar (2007)– The court ruled in this instance that the Hindu Adoption and Maintenance Act of 1956 only allowed Hindus to adopt Hindus. Therefore, only a Hindu child can be adopted by a Hindu male or female.
In the case of Narinderjit Kaur v. Union of India (1997)– It was held that a divorced woman can adopt, and even if she remarries the adoption will be held valid. Adoption cannot be invalid because of the subsequent marriage of the adoptive mother.
Bhola & Ors v. Ramlal & Ors (1989)– The plaintiff had two spouses, and the validity of his adoption was called into doubt because he did not obtain one of their consent before adopting. According to the Madras High Court, the plaintiff’s wife had fled away, but she couldn’t be ruled dead until she hadn’t been heard from for at least seven years. It was decided that as long as the wives are alive, each wife’s approval is required for a legitimate adoption. Adoption does not require the wife’s approval if she has converted to another religion or forsaken the world.
Guardians and Wards Act, 1890
The Guardians and Wards Act was enacted by the Parliament in 1890 to protect the interests of minors and secure their property. Because the personal laws of some religions do not recognise total adoption, this Act applies to Christians, Muslims, Parsis, and Jews. The only relationship that is established following adoption under this Act is that of guardian and ward. Adoption is not the same as the HAMA in that it does not confer child status on the adopted child. When children reach the age of 21, they cease to ward and take on their own identities. They do not have a right to inherit automatically. Adoptive parents must leave whatever they want to their children in a will, which can be challenged by any blood relative.
The Juvenile Justice (Care & Protection of Children) Act, 2000
All Indian citizens are covered by the Juvenile Justice (Care and Protection of Children) Act, 2000. It allows two children of the same gender to be adopted. It confers parental and child status rather than guardian and ward status. It also gives the adopted child the same rights as a biological child. It is intended for the care, protection, development, and rehabilitation of juveniles in conflict with the law as well as children in need of care and protection. It also serves the purpose of the adjudication and resolution of specific situations relating to them. It establishes a consistent legal foundation for justice across the country, and it applies to children under the age of 18.
Adoption of Children Bill, 1972
The Adoption of Children Bill aimed to create a single, secular adoption law that applies to all inhabitants of the country. The Bill was the product of a long-standing demand by several social welfare organisations and many social workers around the country for the benefit of, and in the interests of, thousands of poor children, whose wellbeing was Bill’s primary concern. The new legislation aimed to bridge the gap between Hindus and non-Hindus. The situation concerning adoption was attempting to be rectified by enacting an explicit secular adoption statute. This Bill was unlike the Hindu adoption law in that it placed a greater emphasis on the child’s well-being than religion.
However, this Bill was later dropped, due to Muslim opposition. A standard adoption law that would apply to all communities, including Muslims was opposed by the Muslims. It is said that Islam does not acknowledge adoption and that a Muslim child adopted by a Hindu will not be treated equally.
The need for uniform adoption law
Although Hindus have long recognised adoption as a legal and customary institution, India does not have a general adoption law that applies consistently to all residents. Many homeless children have been abandoned and mistreated, not only by their natural parents but also by society. Social workers and reformers have been clamouring for such a law for the benefit of many destitute children.
The Guardians and Wards Act, 1890, makes it easier for non-Hindus to adopt. This, however, does not grant the child the same legal status as a child born to the family biologically. Unlike a child adopted under the Hindu Adoption and Maintenance Act of 1956, a child adopted under the Guardians and Wards Act, 1890 cannot become their own child as per law, assume their name, or inherit their property by right. Only a guardian-ward connection is established under this Act. This type of relationship can last until the child reaches the age of 21. The legal guardian-ward relationship ends soon after reaching the age of majority, and the adopted Muslim child becomes a na-mehram (non-blood relative) to the adoptee.
As a result, a kid adopted by a Hindu under the Hindu Adoption and Maintenance Act, 1956, is treated differently than a child adopted by a non-Hindu under the Guardians and Wards Act, 1890.
The Islamic orthodoxy claims to derive relevance from the Quran, however, there is no reference to adoption in the Holy Scripture. Adoption was so common in pre-Islamic Arabia that even Mohammad, the Prophet, adopted Zaid, the son of Haris.
Shabnam Hashmi v. Union of India (2014)– When Shabnam Hashmi went to her first adoption centre in the suburbs of New Delhi, she was told they didn’t have any Muslim children. Shabman Hashmi, who already had a son, desired to complete his family by adopting a girl. In this case, the Muslim Personal Law Board’s opposition to the concept of adoption in Muslims was that it was not permitted. Despite the fact that the ‘Kafala system’ (‘Kafala’ in Islamic law is used to describe a situation similar to adoption but without the severing of family ties, the transference of inheritance rights, or the change of the child’s family name) exists for the benefit of children. A Muslim cannot adopt a child under this system but can become a kafil to the child and care for the child’s upkeep and well-being.
The Supreme Court ruled that the JJ Act is a secular law that applies to everyone, including Muslims, and that it was designed for the welfare of children, allowing anybody to adopt a child. Thus, even if regulated by Muslim Personal Law, a Muslim can adopt a kid.
It was also stated that the freedom to adopt or be adopted is not a fundamental right in today’s society. The reason for this is that there are different religious perspectives and practises on the subject, and the circumstances are not yet favourable enough to make it a fundamental right.
Shortcomings of the JJ Act
For a child in need of care and protection, the JJ Act, 2000 has a special chapter, Chapter IV, under the heading “Rehabilitation and Social Reintegration.” This was to be accomplished in one of three ways: adoption, foster care, sponsorship, or transferring the child to an after-care facility. Section 41 contemplates adoption while emphasising that a child’s immediate family bears the main duty for his care and protection. Alternative ways of rehabilitation, including foster care, sponsorship, and being cared for by an after-care group, are addressed under Sections 42, 43, and 44 of the JJ Act. The JJ Act, on the other hand, did not define the term “adoption,” and it was only via a 2006 modification that the definition was clarified. Despite this, the Supreme Court claimed self-restraint and refused to acknowledge adoption as a basic right under Article 21 of the Indian Constitution.
The Constitutional provisions
The writers of the Indian Constitution included a clause called “Directive Principles of State Policy” that advocates for a uniform civil code. Despite the fact that the terms of this Section are not enforceable by Indian courts, Article 37 declares that the provisions of this Section are vital to the country’s governance, and it is the State’s responsibility to adopt these principles in establishing legislation. “The State shall seek to provide for the inhabitants a uniform civil code across the territory of India,” Article 44 states unequivocally.
“Nothing in this article shall prevent the State from making any specific provision for women and children,” says Article 15(3). In addition to “equality,” the Indian Constitution’s preamble calls for the promotion of “secularism” and “fraternity” to ensure the country’s unity.
India is a country with a wide range of cultures. Hinduism, Islam, Christianity, Sikhism, Buddhism, and Jainism are the six major religions. A unified civil code that treats all Indians equally, regardless of their cultural distinctions, could function as a unifier. Scholars have found that enforcing various personal rules rather than a single law that applies to everyone equally tends to socially and spiritually divide the country.
The lack of a secular law affects not just Indians, but also foreign nationals who visit India with the intention of adopting a child. However, because there is no law in place for such people, they must go through a lengthy process that involves first obtaining guardianship of the child from the courts under the Guardians and Wards Act, 1890, and then ensuring the court that they will legally adopt the child under the laws of their home country within two years of their arrival. All of this may be avoided by enacting legislation that addresses all of these issues, and as a result, the mistreatment of adoptees will decrease.
Muslim personal laws prohibit adoption, and if a child is adopted, he or she will not be entitled to inherit the property as a natural-born child. In contrast, if a child is adopted into a Hindu family, he would be given all of the rights that a biological child would have. The law of adoption is also not recognised by Parsi personal law. In today’s world, when society has changed dramatically, current rules do not satisfy the necessary need. Only a unified law for everybody, regardless of religious views or customary behaviours, can eliminate this disparity in legislation.
In India, a standard civil code for adoption legislation is essential. It does not infringe on the fundamental right to freedom of religion. Furthermore, the state’s fundamental principles of policy require it to promote uniformity to its laws.
Adoption rules for Hindus have vastly improved, as has the status of women in society. It is absurd that Muslims in India are unable to lawfully adopt a kid due to a lack of a universal civil code on adoption. By passing secular legislation, different Indian religions will be able to lawfully adopt a kid. This will also help to lower the number of children who are without a parent.
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