Beyond Biological Bonds

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SC allows non-Hindu families to adopt a child, raising hackles of religious organizations but giving a new hope to childless parents and orphaned children

By Anubha Rastogi

When Sushmita Sen decided to adopt a child almost two decades ago, many Indian singles and couples wondered: Can we also adopt without going through a maze of bureaucracy and paperwork? The answer is: yes and no. Indian law allows adoption, but also imposes several caveats that don’t make it easy.

For years, the Hindu Adoptions and Maintenance Act, 1956 (HAMA) was the only law on adoption. But it was limited to adoption of, and by, Hindus, Sikhs, Buddhists and Jains; and people from other religions, including Muslims, Christians and Jews, had to turn to the Guardians and Wards Act, 1890 (GAWA). Under GAWA, people who adopted had the legal status of guardians and not the parents, and the child was only a ward. Thus, the adopted child in, say, a Muslim or a Christian family, did not enjoy equal inheritance rights and other benefits, as an adopted child in a Hindu family did.

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Brad Pitt and Angelina Jolie with their adopted kids.

Eight years ago, social activist Shabnam Hashmi challenged the law on behalf of non-Hindu children and parents, hit by the legislative vacuum. Her petition sought the right to adopt for every person irrespective of religion and sex, and the right of every child to be adopted irrespective of religion and sex. Hashmi went to court to be legally recognised as the parent of her adopted daughter, who, under the law, was regarded as her ward. The child was shown as a ward in the service books of her husband Gauhar Raza, a scientist working with the government of India, and was, therefore, not entitled to the same benefits as other family members.

Hashmi finally has a reason to rejoice. In February, the Supreme Court gave Muslims and all other non- Hindu communities the right to legally adopt a child under the amended Juvenile Justice (Care and Protection) Act, 2000. This law provides for adoption as one of the means of rehabilitating children in need of care and protection. Even though it was enacted in 2000 and amended in 2006, the rules for its implementation were framed in 2007.

Interestingly, the All India Muslim Personal Law Board questioned the act on the ground that Islamic law did not put an adopted child on a par with a biological child. The board also wanted the Child Welfare Committees under the Juvenile Justice Act to ensure that Islamic tenets were considered while giving a Muslim child for adoption.

The Supreme Court said that with the amendment to the Juvenile Justice Act to include aspects of adoption, a legislative vacuum had been filled. The apex court also observed that the new rules on adoption were in line with guidelines issued by the Central Adoption Resource Agency (CARA) in 2006 and 2011. The government, on its part, informed the Supreme Court that adoption, irrespective of religion and sex, was already taking place under the provisions of the Juvenile Justice Act. Between January 2013 and September 2013 itself, 19,884 adoptions had taken place.

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Shabnam Hashmi

On the submissions made by the All India Muslim Personal Law Board, the Supreme Court observed that the Juvenile Justice Act was an enabling and optional legislation, and, therefore, could not be bound by the rules of personal laws. The court added that the act was a small step towards the mandate of Article 44 of the constitution seeking a Uniform Civil Code, and observed that at present it would not be advisable to direct the central government to look into developing a secular law like the Special Marriage Act, as, according to the apex court, the country was not ready for a healthy discourse on the uniform civil code. The court reiterated that the Juvenile Justice Act filled the vacuum and at present that was sufficient.

However, the court rejected Hashmi’s plea for adoption to be considered a fundamental right even though it will be in the process of constant evolution with the right to life. The elevation of the right to adopt or be adopted would have to wait until conflicting thought processes had dissipated. The All India Muslim Personal Law Board had opposed the appeal on the ground that Muslim Personal Law does not recognise adoption, but it does not prohibit a childless couple from taking care of and protecting a child with emotional and material support. The court felt that an enabling legislation that ensured adoption to take place, irrespective of religion and sex, was sufficient at this stage. A significant step towards a more humane society.

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