This article was written by Thejalakshmi Anil. This article provides an in-depth analysis of the landmark case of Shabnam Hashmi vs. Union of India & Ors (2014) and the adoption laws of India. This article further delves into the applicability of the Juvenile Justice Act, 2000, in matters of adoption. It examines the facts, legal issues, arguments, and judgement of this case. The article also provides an overview of the adoption laws in the country. 

Introduction

Adoption is the process by which the adopted child becomes the lawful child of his/her adoptive parents, enjoying all the rights, privileges and responsibilities that are attached to a biological child. There are over three crore orphaned children in India, however, only around 2000 children are available for adoption each year. Moreover, some 30,000 prospective parents have to wait for around three years to bring home their adopted child. Leaving aside the practical difficulties of this process, up until 2014, the complex personal law landscape also added to the difficulties of adopting a child. Since adoption, for a long time, was governed by personal laws, members of certain religious communities like Islam, Christianity, Judaism and Zoroastrianism were prohibited from adopting children as it was not permissible under their personal laws. Up until then, the adoption laws only allowed for Hindus, Buddhists, Sikhs and Jains to be legally recognised as adopted parents.

However, this underwent a change with the Supreme Court decision in the landmark case of Shabnam Hashmi vs. Union of India (2014). In this case, the Supreme Court provided a secular avenue for the adoption of children by recognising the right of the community to adopt inspite of their personal law. Hence, the court centralised the welfare of the child in this case. This ruling by the Apex Court was considered as a step towards a Uniform Civil Code in India by holding that Muslims could also adopt under the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act 2000) and the rules following from it, especially the Juvenile Justice Amendment,  2006, providing a much needed channel for secular adoptions. In this article, we will be discussing the facts of the case along with a look at the diverse adoption landscape in the country including the personal laws of Hindus and Muslims, and the Juvenile Justice Act to understand the complex legal landscape of adoption in the country. 

Details of the case 

1. Name of the case: Shabnam Hashmi vs. Union of India & Ors  
2. Equivalent citations: (2014) 4 SCC 1 AIR 2014 SUPREME COURT 1281, 2014 AIR SCW 1329, 2014 (2) AKR 185, AIR 2014 SC (CIVIL) 969, 2014 (2) ABR (CRI) 34
3. Type of case: Civil case 
4. Petitioner: Shabnam Hashmi
5. Respondent: Union of India & Ors. 
6. Court: The Supreme Court of India
7. Bench: Justice Ranjan Gogoi, Justice Shiva Kirti Singh, & Justice Palanisamy Sathasivam
8. Date of the judgement: 19.02.2014 
9. Laws involved: Articles 21 and 44 of the Constitution of India and Section 41 of Juvenile Justice (Care and Protection of Children) Act, 2000

Facts of the case 

In this case, a Public Interest Litigation (PIL) was filed by the petitioner, requesting the Supreme Court to recognise the right to adopt and be adopted. The petitioner also alternatively petitioned the court to lay down guidelines that would enable the adoption of children by individuals irrespective of religion, caste, creed or other factors. The petitioner, Mrs Hashmi, had taken her adopted daughter under her custody in 1996 and decided to adopt her in 2005. While completing the paperwork, she had selected the ‘non-Hindu’ column and was told that the girl would only become her ward and the couple would only be recognised as guardians of the child. Consequently, the child would not be considered on par with a biological child and would also not be able to inherit property under the Muslim personal inheritance law. Subsequently, the petitioner filed an application under Article 32 of the Constitution and waged an eight-year battle to be legally recognised as the parent of her adopted child. 

However, in 2006, the Union Government submitted a counter affidavit to the court arguing that the petitioners and other prospective adoptive parents could use the provisions of the amended  Juvenile Justice (Care and Protection of Children) Act, 2000 (‘JJ Act 2000’) in order to adopt regardless of their religion. This Act recognised adoption as a method for the rehabilitation and social reintegration of children in need of care and protection in addition to other modes like foster care and sponsorship. Additionally, the JJ Act 2000 has given statutory recognition to the guidelines laid down by Central Adoption Resource Agency (CARA) which was established in 1989 in order to facilitate both inter-country and intra-country child adoption.

The Union Government also provided information relating to the Child Welfare Committees (CWCs) and State Adoption Resource Agencies (SARAs) relating to their functioning. The Union noted that at the end of 2013, CWCs were functioning in 619 districts across the country. However, it was also noted that there were undue delays in the processing of adoption cases at the level of CWC despite the schedules which were laid down in the 2011 guidelines and the Juvenile Justice Rules of 2007. It was also noted that at the end of 2013, the SARAs were set up in 26 States and Union Territories. This was done in order to highlight the progress made in implementing the adoption related infrastructure across the country but also to point out the issue of delays in adoption at various levels. 

Issues raised 

1. Is there a fundamental right to adopt and for a child to be adopted under Article 21 of the Constitution?
2. Does the Juvenile Justice Act govern the adoption of a Muslim child? 

Arguments of the parties

Petitioners 

The petitioner asserted the right to adopt and be adopted is a fundamental right under Part III of the Constitution. The petitioner argued that the right of a child to be adopted should fall under the ambit of a fundamental right under Article 21 of the Constitution. The petitioner also requested the court to lay down guidelines which would then facilitate the adoption of children in a secular fashion notwithstanding factors like religion, caste, creed etc. 

The petitioner also pointed out that JJ Act, 2000 is one such act which facilitates the adoption regardless of religion. It was also argued that this act is similar to the Special Marriage Act, 1954 which provides an avenue for secular marriages and allows inter-religious marriages. 

CARA Guidelines also plays a crucial role in the shaping and regulating of the Indian adoption systems by establishing comprehensive norms for both inter-country and intra-country adoptions. These guidelines were given statutory recognition and legal force throughout the country and also gives a detailed procedural framework which covers various aspects of adoption. This includes guidelines for the pre-adoption process to declaring a child free for adoption and also provisions for post adoption. Therefore, the CARA guidelines played a significant role in supplementing the Juvenile Justice Act with specific procedures and details. This enabled the formation of a standardised approach to adoption throughout the country. These guidelines were formulated in order to centralise child welfare in line with judicial precedents. They also strike a balance between national uniformity while at the same time allowing certain regional flexibility by enabling states to adopt and notify the guidelines for use in their respective jurisdiction.  

Respondent  

The  All India Muslim Personal Board (AIMPLB) argued that the Muslim Personal Law does not recognise adoption as a concept. Therefore, they argued that declaration of adoption under Article 21 would not be valid. They also did not agree that the JJ Act should be applied. According to the AIMPLB, adoption is simply one of the ways for taking care of the child. There are other modes like foster care and sponsorship which also exist for taking care of an abandoned child. They also brought to the attention of the court the concept of ‘Kafala’ system. Under this system, the child is placed under a guardian-like figure called ‘Kafil’ who would provide for the welfare of the child. This includes both legal and financial care. However, this is different from adoption under Muslim law. 

Adoption under Muslim law does not mean the child would be recognised on the same level as a biological child. The adopted child would still remain a true descendant of the child’s biological parents. It was contended that the Kafala system is recognised by the UN Convention on the Rights of the Child under Article 20(3). Therefore, the argument raised was that principles of Islamic law should be kept in mind before declaring a Muslim child to be available for adoption under Section 41 of the JJ Act, 2000. 

Adoption in Islam 

In Islamic law, the concept of adoption is not permitted. This system which is called Al Tabani, creates ties with the adoptive parents and severs links with the biological ones. The prohibition comes from Islamic concerns around lineage, inheritance and consanguinity. Despite this, Islam does give importance to caring for orphans and abandoned children even making it a religious duty, Additionally, in Islam, there is an emphasis on the importance given to the welfare of the child and care for the orphans. 

However instead of formal adoption, Islamic law provides for alternative arrangements of child care. This includes systems like the Kafala system and other arrangements similar to fostering wherein the child would retain the original lineage and inheritance rights. 

The main contrast between Islamic and Western laws on adoption comes from how they look at a child’s origins and family ties. Islamic law puts emphasis on retaining the original biological connections. Whereas under western law, there is a severing of the biological ties legally when a child is adopted. Therefore this difference affects inheritance rights within the biological family and also marital restrictions between the adoptive and adopted family members. 

Western adoptions often change the child’s surname and grant full inheritance rights to adoptive parents. However in Islamic law the child maintains their original name and keeps inheritance ties with the biological family. Western adoptions create legal barriers to marriage within the adoptive family. But there is no such restriction imposed under Islamic laws. The legal status of adopted children also differs. Under Western systems adopted children are given equal rights to biological children. However Islamic alternatives like kafala provide care without changing legal status. 

Despite this, in several Muslim countries there are informal adoptions being carried out despite the legal prohibitions. This shows a gap between the law and practice. Moreover, since there exist a large number of orphans who have been abandoned in these counties, calls have been made to reexamine these traditional notions and interpretations.

Adoption laws in India 

India’s adoption laws exhibit a complex landscape, reflecting the cultural and religious nature of our country. Three primary legislative frameworks govern adoption and guardianship: the Hindu Adoptions and Maintenance Act, 1956 (HAMA), specific to the Hindu community; the Guardians and Wards Act, 1890 (GAWA), which applies to non-Hindu communities; and the Juvenile Justice Act, 2015 (JJ Act), a secular law applicable to all communities. 

The Hindu Adoptions and Maintenance Act, 1956 

Under Hindu Law, adoption was considered as a sacramental act with the institution of ‘sonship’ being as important as marriage. Having a son was considered as a religious obligation for Hindus. The object of adoption was recognised as being twofold: firstly, to secure the performance of funeral rites and secondly to preserve the continuity of the lineage of a person. However, the main purpose of adoption in modern law is to provide consolation and relief to a childless couple and also provide a home to a destitute or orphaned child. 

The HAMA is the codified law which governs the adoption amongst the Hindus. While it governs the adoption of only Hindus, it is a secular act in the sense that it does not requrie a religious ceremony for adoption. Whatever motive a person adopting may have, whether its religious or secular, the act of adoption under this act is essentially considered as a secular act. 

Adoption under Hindu law, creates a fictive relationship between the adopted child and parents. This enables a childless person to create a legal relationship with a child who is not biologically his. Therefore, with adoption, the child would effectively sever his ties with the natural family and be transplanted into the family of his adoptive parents. This meant that the child could not marry the biological child of his/her adopted parents whether the child is adopted or natural. Therefore, the adoptee gets the natural born son’s rights and privileges in the adopter’s family and loses the same in his natural family. Under Section 15, an adoption validly made cannot be cancelled by the adopter, natural parents or any other persons.

Both a Hindu male and female can adopt a child. With respect to the capacity of an individual to adopt, the person should be a major and of sound mind. If the Hindu male or female is married, then it is necessary to obtain the consent of their spouse before adoption. Adoption without the consent of the wife or husband is void under Sections 7 and 8 respectively. 

Section 11 of the Act also lays down certain conditions for adoption: 

• The adoption of a son can only be done as long as the adoptor does not have a Hindu son, son’s son, or son’s son’s son. An exception is that, if they have ceased to be Hindu, then the adoption of a son would be valid. 
• The adoption of a daughter can only be done if the person does not have a Hindu daughter or a son’s daughter. 
• Two persons, who are not husband and wife, cannot adopt the same child. This means that two sisters, brothers or friends may not adopt the same child. 
• There is also an age difference which should be followed for adoption of a child of the opposite sex. In such instances, the adoptive parent should be older than the child by at least 21 years. 

Section 10 also lays down certain criteria for who may be taken in adoption. In accordance with this section, it is necessary that the child must be Hindu. The adoption of a Muslim or Christian child by a Hindu would not be governed by this act. While under the old law, an orphan, foundling or abandoned child could not be adopted, under the modern law, adoption is recognised as a mode to solve the social problem of the plight of orphaned, abandoned and refugee children. HAMA also lays down that the child should not be older than 15 unless a custom exists to that effect. For instance, in accordance with Bombay and Punjab customary law, there is no such prescription with respect to age. The adoption of a married child is also prohibited unless there is a custom to the contrary. Such a custom is permitted among Jats in Punjab. 

Section 11(vi) lays down the performance of the ceremony of giving and taking for adoption. This ceremony must be performed by the giver and taker or by any other person under the authority of the giver or taker. No specific Shastric or customary is necessary. 

However, the HAMA does have significant drawbacks. Firstly, HAMA does not have comprehensive monitoring mechanisms to verify the origin of the adopted children or assess how suitable the adoptive parents are. This lack of oversight has raised concerns about misuse. Secondly, it is also argued that HAMA is largely parent-centric, which could inadvertently lead the welfare of the child to take the backseat. The focus of HAMA has primarily been to provide a successor to a ‘son-less’ family for purposes of inheritance, succession, and funeral rites. Even with the adoption of daughters under HAMA, there exists a religious significance, particularly for the practice of ‘kanyadaan’ (the giving away of a daughter in marriage). While these cultural aspects play an important role in the religious beliefs of the members of the community, this might overshadow the need to look after the welfare of the child. 

Guardians and Wards Act, 1890 

The Guardian and Wards Act (GAWA), 1890, is a consolidating and amending statute, with provisions of scattered statutes enacted previously being consolidated under this Act. The GAWA allows non-Hindu communities to take a child into ‘guardianship,’ providing an alternative to full adoption. This is a complete code which defines the rights and remedies available to guardians and wards. It regulates and governs all matters relating to guardianship, which includes clarification of the rights, obligations and responsibilities of the certificated guardian, the removal and replacement of guardians and remedies of the ward. Therefore, when a natural guardian, regardless of their religion, seeks to establish their right as guardian of the child or seek custody of or access to the child, they should proceed under the Act and not under a civil suit. Even when a natural guardian wants to recover the custody of his child from a person he entrusted the child with, the remedy yet again is an application under the Act and not a civil suit. 

The Act only governs guardians of property or persons of the minority. The other kinds of guardians, such as those of marriage or in litigation, fall outside the purview of the act. Moreover, like HAMA, GAWA is silent on the specific issues of orphaned, abandoned, and surrendered children, which are the focus of the JJ Act.

Juvenile Justice Act, 2015 

Adoption of children under the Juvenile Justice Act, 2015 is applicable to all Indians irrespective of their religion. The primary aim of the JJ Act, 2015 is to protect the rights of the child and also ensure that their basic needs are met. This Act aligns with India’s commitment under the United Nations Convention on the Rights of the Child, which India ratified in 1992. This is also in line with the Hague Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoption (1993). The focus of this act was to provide institutional care which would meet the needs of children in need of care and protection. 

Adoption under JJ Act, 2015 is the process by which the biological ties between the adoptee are severed and fictive legal ties are established between the adoptee and adoptive parents. As under the Act, any child who is not above the age of eighteen years can be adopted.  Chapter VIII of the Act lays down the process of adoption. Section 56 lays down that adoption shall be resorted to to ensure the right to family for orphaned, abandoned and surrendered children. While HAMA only applies to Hindus, section 56 states that nothing in the Act would apply to the adoption of children under HAMA. Therefore, considering the differing age restrictions under both Acts, an adoption of an 18 year old would be valid under the JJ Act, 2015 but not the HAMA. Additionally, the JJ Act, 2015 does not place a bar on parents of having natural children of the same sex to adopt under the Act which is a bar under HAMA. 

The adoption process under the JJ Act is also much more detailed and descriptive in comparison to the HAMA. In order to adopt under the JJ Act, the adoptive parents need to register with the CARA through an online portal. Following this, a home study is conducted by a specialised agency which would assess how suitable the adoptive parents are. Once this evaluation is done thoroughly, an assessment is made as to whether the parents can be considered eligible for adoption. The act also ensures that children are legally declared free for adoption before being matched with prospective parents.

Therefore, while this process is more rigorous, it creates a more transparent and accountable system of adoption. This helps to address the concern which was raised with respect to the adoption under HAMA, concerning issues of child trafficking and unsuitable adoptive parents. However, the stringency of the JJ Act process means that it has led to significant delays in adoption. For instance, consider the imbalance between the available children and prospective parents under the CARA system. Reports show that only around 2,000 children are available for adoption, compared to over 30,000 prospective adoptive parents registered in the system. This leads to an extended waiting period of three or more years leading adoptive parents to seek less regulated alternatives for adoption. 

The amendment brought to the JJA in 2021 through the Juvenile Justice (Care and Protection of Children) Amendment Act in 2021 gave a significant amount of power to the District Magistrate for the process of adoption. This was done in order to address the significant delay in disposing of matters related to adoption since earlier this role was primarily reserved for the court. This amendment also gave the District Magistrate the power to inspect childcare institutions. However, this move has also been critiqued as to whether the Magistrate can deal with matters related to children as precisely and technically as a specialised body. 

Laws/ concepts involved in Shabnam Hashmi vs. Union of India & Ors. (2014)

Indian Constitution, 1950

Article 44 of the Constitution

Article 44 falls under Part IV of the Indian Constitution which lays down the Directive Principles of State policy. This Article lays down that the State shall endeavour to enact a Uniform Civil Code (UCC) for the citizens of the country. This aims to provide a uniform set of laws for personal matters like marriage, divorce, inheritance and property of all citizens regardless of their religious beliefs or community. Ultimately, it aims to unify the varied regime of personal laws existing in India which differ among the different religious communities. This concept has been a subject of long-standing debate in India’s socio-legal landscape, arising from the country’s diverse religious and cultural background. 

In the present case, the court regarded the JJ Act, 2000 as a small but significant milestone towards achieving the goal which has been enshrined in Article 44 of the Constitution. The court, while acknowledging that the article is an aspirational goal also recognised that there exists conflicting viewpoints still between different communities on matters of adoption and personal laws. However, the court also noted that this goal has not yet been fully actualised and emphasised the need for judicial restraint on the same. The Apex Court shared a similar viewpoint in cases such as Lily Thomas vs. Union of India (2000) and John Vallamattom vs. Union of India (2003). The court suggested that the UCC can only be implemented by the collective decisions of future generations to reconcile conflicting faiths and beliefs currently active in society. The court while recognising the JJ Act as progress acknowledged that India is still far from achieving the constitutional vision of UCC due to prevailing differences in personal laws and beliefs among the different communities. 

Juvenile Justice Act, 2000

Section 41 of Juvenile Justice Act

Section 41 of this Act lays down the adoption framework in India. It provides that a child’s primary care should come from their family, but adoption is a way to help orphaned, abandoned, or surrendered children. The courts oversee the process of adoption, ensuring proper investigations are done by the officials before adoptions are approved, following government guidelines. Each district must have specialized adoption agencies recognized by the state government to handle these cases.

The section also outlines conditions for adoption, such as a waiting period for surrendered children and requiring consent from children old enough to understand the process. It expands who can adopt, allowing single individuals, parents with children of the same sex as the adoptee, and childless couples to adopt. 

Relevant judgements referred to in the case

Lakshmi Kant Pandey vs. Union of India (1984)

This case arose out of a letter written by the petitioner, who was an advocate of the Supreme Court. The petitioner complained of malpractices engaged in by certain social organisations and voluntary agencies wherein Indian children given for adoption to foreign parents are ill-treated. The court laid down elaborate guidelines to protect and further the interests of the child in the case of inter-country adoption. These guidelines include speeding up procedures for abandoned children, issuing faster release orders, and exploring adoption options with both Indian and foreign parents simultaneously. The court approved inter-state transfers of children under certain conditions, raised the cost limit for processing adoptions, and simplified requirements for foreigners living in India. They also addressed scrutiny agency fees, aimed to prevent misuse by unrecognized agencies, and emphasized the importance of maintaining confidentiality in adoption cases.

The court recommended the creation of a regulatory body, the Central Adoption Resource Agency (CARA). Throughout, the Apex Court focused on the rights of children and their welfare, recognizing that children are an extremely valuable national asset.

In re: Manuel Theodore D’souza vs. Unknown (1999) 

In this case, a Christian couple sought to be appointed as guardians under the Guardians and Wards Act, 1890. Subsequently, they amended their prayer to be declared adopted parents. The dispute arose since the governing law at the time, which was the Hindu Adoption & Maintenance Act, 1956, only governed adoption by Hindu parents. Among the issues raised,  the Bombay High Court considered questions such as whether an orphaned child has the right to a family, whether the right to be adopted is a fundamental right guaranteed to a child under Article 21 of the Constitution and whether the State can deny an orphaned child the right to be adopted because of its failure to enact a legislature. 

The Bombay High Court in this case laid down that the right to life in the case of an abandoned orphan or destitute child includes the right to be taken in adoption. The court reasoned that the directions in the Lakshmi Kant Pandey case recognised the right to life guaranteed under Article 21 to the child, considering that the Apex Court could not have issued the directions without considering adoption to be a part of the right to life. The court goes further to recognise that the right to adopt parents flows from Article 14 of the Constitution. 

Philips Alfred Malvin vs. Y.J.Gonsalvis & Ors. (1999)

This case concerned a property dispute wherein the plaintiff, who claimed to be the adopted son of the deceased, sued for partition of the property. However, the defendants argued against that the suit was not maintainable and that the plaintiff was not the adopted son of the deceased. Additionally, it was argued that Christian Law does not recognise adoption. 

The Kerala High Court ruled that the adopted son is entitled to inherit the assets of the deceased as he gets all the rights of a biological child. Additionally, it was held that adoption is recognised according to Hindu, Mohammedan and Canon Law. The court also held that the right of the couple to adopt a son is constitutionally guaranteed under Article 21. 

Judgement in Shabnam Hashmi vs. Union of India & Ors. (2014)

The Supreme Court did not recognise the right to adopt as a fundamental right. The court held that the conferment of the status of a fundamental right to the right to adopt was the task of the legislature and not the judiciary. However, the Supreme Court held that the Juvenile Justice Act is legislation that enables a prospective parent to adopt an eligible child after following the provisions prescribed under the Juvenile Justice (Care and Protection of Children) Rules, 2007 and the CARA (Central Adoption Resource Agency) Guidelines. The Act provides a great degree of flexibility to the parent in the sense that the person is free to adopt as under its provisions or follow the dictates of the applicable personal law. 

The court additionally stated that the JJ Act, as an enabling statute, provides an optional legal pathway for adoption available to all, regardless of religion. While personal laws and beliefs must be respected, they cannot be used to invalidate or restrict the options provided by this secular law. This approach allows the JJ Act to function as intended while still respecting individual choice in following personal laws.

The court discussed the changes brought in by the Juvenile Justice Act, 2000, from the Juvenile Justice Act, 1986 (‘JJ Act 1986’). The JJ Act of 1986 dealt with only neglected and delinquent juveniles. Under the JJ Act 1986, the treatment for neglected juveniles was that they should be placed in the custody of a juvenile home or under the care of any person willing to ensure the good behaviour of the juvenile during the period fixed by the Juvenile Welfare Board. However, the JJ Act 2000 laid down specific provisions under Chapter IV dealing with ‘Rehabilitation and Social Reintegration’ for a child in need of care and protection. The act laid down several modes to achieve this, like adoption, foster care, sponsorship or sending the child to an aftercare organisation. 

Rationale behind the judgement

The Hon’ble Apex Court analysed the decisions of the Bombay High Court in the Manuel Theodore D’Souza case and the Kerala High Court in the Philips Alfred Malvin case and held that the holdings in those cases were to be understood in light of the specific facts of those cases. The larger question of the fundamental rights was not raised in the Kerala High Court case, whereas, with respect to the Manuel Theodore D’souza case, the Supreme Court held that the right to adopt was held to be consistent with the personal law applicable to parties who were Christians.

In the present case, the court held that it was not appropriate to raise the right to adopt to the status of a fundamental right. The court also reiterated the need for judicial restraint, wherein the court should refrain from dealing with issues of constitutional interpretation unless this exercise is unavoidable. 

According to the court, the JJ Act is a step in achieving the goal of securing a Uniform Civil Code under Article 44 of the Constitution. Furthermore, the court held that personal belief and faith cannot control the operation of an enabling statute. The court reasoned that since the JJ Act, 2000, is optional legislation and does not contain an imperative that is unavoidable, it cannot be overridden by principles of personal law. 

Critical analysis of the case

In the Shabnam Hashmi case, the Apex Court had indeed provided adequate relief to the petitioner. However, there has been some criticism raised in the sense that it did not recognise the right to adopt as a fundamental right under Article 21 of the Constitution. Recognising this right would have facilitated better access to justice, especially considering that JJ Act, 2000 may not be accessible to individuals across the different communities. 

The Global Muslim Women’s Shura Council in a 2011 report looked at the adoption process in Islam and recommended measures for reform. This report highlighted that Islamic sources don’t ban adoption but simply place ethical restrictions on it. This reform highlights compassion, transparency and justice. This reform is similar to the idea of open adoption where the biological ties of the child are not erased. Such a model wouldn’t be anti-Islamic and would prioritise the child’s best interests.

Therefore it is argued that the court could have considered these alternatives while expanding the interpretation of Article 21 in order to prioritise the best interests of the child. By exploring these alternatives, the court could have created a more inclusive and comprehensive framework for adoption in India. 

Conclusion 

The Shabnam Hashmi case is a landmark case because it recognised a way for Muslims to adopt children despite their personal laws prohibiting adoption. This decision is a step forward to achieve the Uniform Civil Code under Article 44, as envisioned by the framers of the Constitution. 

India’s adoption system is complex, with laws like the Hindu Adoptions and Maintenance Act (HAMA), the Guardians and Wards Act (GAWA), and the JJ Act coexisting, which makes the legal arena regarding adoption confusing for a layman. These complexities, along with cultural and religious factors, complicate efforts to streamline the adoption process and ensure equal access for all. 

This decision highlights the need to balance individual rights with societal norms in a rapidly changing and modern world. It also highlights the need for legal reforms, as many personal laws still contain orthodox values that clash with modern constitutional principles. The goal of the present case is to develop a system that respects cultural differences in a diverse nation that prioritises child welfare and ensures every child has a chance to grow up in a loving family.

Frequently Asked Questions (FAQs)

How is adoption different from guardianship? 

Adoption is an irrevocable act that confers on the adopted child full rights equivalent to those of a natural child, including the right to inherit. However, under the GAWA, as soon as a child turns 21 years old, they would no longer remain as wards and have individual identities. They also do not have an automatic right of inheritance. The fundamental difference between the two concepts is that while adoption establishes a parent-child relationship, no such relationship is established under guardianship. 

How is adoption under HAMA different from the JJ Act?

The Hindu Adoption and Maintenance Act (HAMA) is specific to Hindus, Jains, Buddhists, and Sikhs, while the Juvenile Justice (JJ) Act is secular legislation that allows people of all faiths to opt in. HAMA restricts parents from adopting a child of the same sex as their existing child, whereas the JJ Act has no such limitation and even permits the adoption of two children of the same sex. 

Section 56(3) of the JJ Act, 2015, states that its provisions do not apply to adoptions under HAMA. However, Section 56(4) mandates that all intercountry adoptions must be conducted in accordance with the JJ Act. 

How will UCC impact adoption in India?

The Uniform Civil Code would provide a uniform set of adoption laws for all Indian citizens. The rights of adopted children would be clear and more consistent, regardless of their religious affiliation.  

The UCC would make sure that all children have the same opportunities to be adopted and at the same time all competent adults have the same rights to adopt. It would reduce discrimination against single people, same-sex couples and interfaith couples. Also, it would make it easier for prospective parents to adopt children from other religions.

What do Sections 42 – 44 of the JJ Act, 2000 lay down?

Section 42 lays down the provision for foster care. This refers to the temporary placement where children are placed with another family while waiting for adoption. This can be short-term or long-term care. According to the circumstance the birth parents may stay in touch through regular visits. Eventually after rehabilitation the children may return to their original homes. The state government sets the rules for foster care programs

Section 43 outlines sponsorship programs which support families, children’s homes, and special homes by covering medical, nutritional, and educational needs to improve children’s quality of life. The state government can create rules for different types of sponsorships, such as individual, group, and community.

Section 44 describes after-care organizations, which the state government can establish or recognize. The State government can make rules for establishing these organisation and defining their functions, create aftercare programs for helping juveniles to lead honest, productive lives after leaving special or children’s homes, and set standards and services for after care organisations. Additionally, the rules can also require probation officers or other appointed officers to prepare reports on the needs and plans for each juvenile or child before they leave the homes, and supervise and report on their progress. 

References

• https://vikaspedia.in/social-welfare/women-and-child-development/child-development-1/child-adoption/overview-of-child-adoption-process-in-india
• https://www.ndtv.com/india-news/when-it-comes-to-adoption-religion-no-bar-supreme-court-551405
• https://indianexpress.com/article/opinion/columns/perils-of-restraint/
• https://www.thehindu.com/news/national/explained-the-tedious-process-of-adoption/article65879614.ece
• https://sansad.in/getFile/rsnew/Committee_site/Committee_File/ReportFile/18/164/118_2023_3_15.pdf?source=rajyasabha
• https://www.livemint.com/Politics/3mOuc3wMjpjDG2qx60B8PK/The-religious-contours-of-adoption-in-India.html
• https://www.tscld.com/uniform-civil-code-a-critical-analysis
• https://nyaaya.org/nyaaya-weekly/everything-you-need-to-know-about-the-adoption-process-in-india/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.