Loopholes in the adoption laws in India: A critical analysis

This article has been written by Mohini Singla. Mohini is currently a student in Army Institute of Law, Mohali.

ADOPTION IN INDIA

In recent times adoption was to provide childless parents an opportunity to get their own children but that was to be taken place within the restricted relations. But now the times have changed and adoption laws are framed as to provide JUSTICE TO CHILDREN.

Adoption provides a very important function in Indian society. India has long tradition of child adoption. In olden days, it was restricted within the family and was covered by social and religious practices. But with the changing times, adoption beyond the contour of family has been institutionalized and legalized.[1] But still most of the religions don’t allow adoption which includes Muslims, Christians etc.

NEED FOR A UNIFORM CIVIL CODE FOR ADOPTION

The Hindu Adoptions and Maintenance Act, 1956 is limited to only Hindus to adopt. But still there are many more children left who are orphaned, abandoned. A proposed uniform law of adoption, applicable to all religious communities had been introduced in 1972, but failed due to opposition from the Muslim communities. “Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family.”  Therefore, if poor, destitute, abandoned children are to be rehabilitated in a legal and safe manner, then there is a great need for a uniform adoption law applicable to people belonging to all religions.[2]

Laws relating to crime and punishment are the same for all citizens in India, and so are the laws relating to commerce, contracts and other affairs. But there are, as is evident from the case laws and the authorities put forth above, that there are no uniform laws regarding family matters in the Indian context. It has been requested since a long time for uniformity in such laws. To treat all citizens equally, one must have same laws for everybody. A uniform civil code in adoption laws will not violate fundamental right to religion. It should be remembered that directive principles of States policy mandate the state to bring uniformity in laws. India being signatory to CRC (Convention on the Rights of a Child), such uniformity is necessary so that the rights of adoptive children can well be enhanced and protected.  Since Adoption is a salient feature of Hinduism, The Hindu Adoptions and Maintenance Act, 1956 statutorily recognizes adoption. The Act brought about significant changes to the law of adoption amongst Hindus and has improved the position of women in this regard. It is absurd that Muslim and Christian Indians cannot legally adopt a child for lack of a uniform code on adoption.

But the action of judiciary aims to bring uniform civil code as in the case of:

Harish v. Nair, 2014 Judgement

The court, however, turned down the plea for declaring the right of a child to be adopted and right of a parent to adopt a fundamental right under the Constitution saying that such order cannot be passed at this stage in view of conflicting practices and beliefs. The right to adopt a child – till now restricted to Hindus, Buddhists and Jains – now extends to Muslims, Christians, Jews, Parsis and all other communities.

In a landmark judgment, the Supreme Court on Wednesday 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. “The JJ Act 2000 is a secular law enabling any person, irrespective of the religion he professes, to take a child in adoption.” The ruling assumes significance as there are over 12 million orphaned children in India but on an average only 4,000 get adopted every year. “Till now Muslims, Christians, Jews and those from the Parsis community only had the power of guardianship in which one possess only legal right on the child till he or she turns an adult. The biological parents have a right to intervene during that period.[3]

Criticism

  1. The first problem with Hindu Adoption and Maintenance Act, 1956 is not religion neutral. It is not equal for all laws. Adoption is only allowed for Hindus and only for those who come under definition of Hindus under Section 2 of Hindu Marriage Act, 1955.

  1. Section 7 and 8 of Hindu Adoption law says that a male or female respectively could adopt son or daughter but this should be son as well as daughter. This s a grammatical mistake which makes the interpretation go wrong.

  1. This Act is against the spirit of Uniform Civil Code. Same law for all should be applied as 66 years on independence we need to have a uniform civil code for everyone to ensure proper justice to all. If not for all laws but for adoption laws there should be uniformity as it will help a lot of orphan children.

  1. The law recognizes age difference of 21 years of age between opposite sex adoption but that should be in case of same sex adoptive parents and adopted child as there can be harassment of child of same sex. Hence the law should also apply to those categories of adoption also.

There is no regular check on children after adoption is done once they are given away there is no check on adoptive parents as how they are keeping the child. In many of leading cases that can be seen.

[1] A.S. Shenoy, Child Adoption Policies in India- A Review, http://unstats.un.org/unsd/vitalstatkb/Attachment482.aspx Assessed on 5th febuarary, 2016.

[2] Need for Uniform Civil Code, The Hindu on 23rd  Janurary, 2015.

[3] Supreme Court gives adoption rights to Muslims, http://indiatoday.intoday.in/story/supreme-court-gives-adoption-rights-to-muslims/1/344463.html Assessed on 5th Febuarary, 2016.

***

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