Saturday, May 10, 2014

Supreme Court verdict on Adoptions

The three-Bench judgment of the Supreme Court of February 19 - Shabnam Hashmi vs the Union of India and Others, provided a considerable advancement in law on the issue of adoption. It ruled that all persons, irrespective of religion, caste and creed, have the option of adopting a child under the provisions of the Juvenile Justice (Care and Protection of Children) (JJ) Act 2000. However, it stopped short of declaring the right to adoption and the right of a child to be adopted as fundamental rights under Article 21 of the Constitution that guarantees right to life, citing "conflicting thought processes in this sphere of practices and belief prevailing in this country."

In India, issues relating to marriage and marital relationships, including adoption, have been historically governed by religion-based family laws - the Special Marriage Act of 1954 is the only exception. The Hindu Adoption and Maintenance Act (HAMA) 1956 provides for adoption of children by married couples/single persons from the Hindu, Buddhist and Jain communities, while the Guardians and Wards Act 1890 provides for guardianship for persons not covered under the HAMA, including Muslims, Christians, Parsis and Jews. 

The difference between adoption and guardianship is significant: adoption allows the adopted child to be treated on par with the biological child in the eyes of the law, on all matters including that of inheriting property. In contrast, although guardianship provides an individual other than the parent of the child the opportunity to address and meet the physical, financial and psychological needs of the child, the biological parents' do not relinquish their rights over that child. Those not governed by HAMA can only be guardians of the children they have chosen to adopt until the enactment of the JJ Act 2000. This was the case with Shabnam Hashmi, too - the petitioner in the present case.

While the JJ Act 2000 Act made a mention of adoption as a form of rehabilitation and social reintegration of orphaned, abandoned and surrendered children, the 2006 amendment to the JJ Act defined adoption, and stated expressly that the legal status of adopted children would be on par with biological children. These provisions have been used for adoption, not only by non-Hindus but also by Hindus, for consecutive adoptions of children belonging to the same sex since HAMA stipulates that no person/couple can adopt a second child of the same sex as the first. 

However, until the present Supreme Court judgment came about, confusion remained as to whether the relevant provisions of the JJ Act superseded family laws of those communities that did not recognise adoption as legal. Doubts were raised citing various grounds - including that the JJ Act is not a specific adoption law, although it contains a provision for adoption; that the JJ Act does not mention adoption in its statement of objects and reasons; and that it does not expressly state that the Act supersedes other laws pertaining to adoption. The Supreme Court judgment has removed this confusion by clearly stating that the JJ Act provides an option to members of all religious communities to adopt a child.

Significantly, the Supreme Court thwarted the attempt of the All India Muslim Personal Law Board (AIMPLB) to contain adoption within the confines of family laws. It overruled the objections raised by the AIMPLB that Islamic law does not recognise adoption. The Board's opposition was not new. In 1972, it had opposed the Adoption of Children Bill 1972, aimed at providing a secular law on adoption. A subsequent Bill of 1980 on the same issue carved out an exception for the Muslim community.

Before the Supreme Court, the AIMPLB had argued that the "kafala" system under Islamic law provided for a childless couple to take care of a child's well-being, both emotional and material, but the child remained that of the biological parents. The Board wanted the court to issue a direction to all Child Welfare Committees "to keep in mind and follow the principles of Islamic law before declaring a Muslim child available for adoption". The AIMPLB's argument is far removed from reality, as many children who are given in adoption are those abandoned by their biological parents and whose religion and antecedents are not always known. The court did not concede to AIMPLB's request. 

By emphasising on the optional nature of the provisions of JJ Act 2000 and the agency of individuals in adopting a child under those provisions, and highlighting simultaneously the philosophy of rehabilitation and social integration of children, the Supreme Court rightly stated that though personal beliefs and faiths must be honoured, they cannot dictate the operations of the provisions of an enabling statute like the JJ Act. 

During the discourse on the Uniform Civil Code in the 1980s and 1990s, in addition to Muslims, Parsis too were opposed to making adoption available to members of their community. The Bombay Zoroastrian Jashan Committee had opposed The Adoption of Children Bill 1980 and demanded an exemption from its application for Parsis as in the case of Muslims. As K.J. Gandhi, erstwhile Secretary of the Federation of Parsi Zoroastrian Anjuman of India, once explained, Parsis would not like to adopt a non-Parsi child, as only Parsis are entitled to enter the fire temple and receive benefits from private Parsi trusts - thus adoption by Parsis would have to be of a Parsi child. In the recent proceedings, however, no representatives from the Parsi community intervened.

Adoption is not merely a legal issue; it has many social ramifications. India has a large number of children abandoned at birth. A petition to the Supreme Court filed in 2011 by a private adoption agency, Ashraya, had stated that there are about 11 million abandoned children in the country, 90 per cent of whom were girls - a testimony to the high son preference in Indian society. In addition, there are orphaned children and some who have been 'surrendered' by one or both parents who have chosen to relinquish their rights over them because of adverse personal circumstances. The central government informed the Supreme Court that in the months of January to September 2013, 19,884 adoptions had taken place, which is clearly a minuscule proportion of the actual number of abandoned kids whose fate can only be imagined. If these children are not placed for adoption and rightfully settled in caring families, they face the imminent risk of being trafficked for sex work, used as forced labour or end up in other equally horrendous situations. 

It is against this backdrop that we have to gauge the significance of the Supreme Court judgment. It may not lead to thousands flocking to adopt under the JJ Act with immediate effect. Certainly many practical obstacles remain for non-Hindus wishing to adopt by citing this judgment. Given strong ties with their religious communities, there are several who may even be reluctant to accept the judgment. Yet, there can be no denying that the judgment has extricated adoption from the labyrinth of family laws, and given it a universal application cutting across religious identities, just as the Protection of Women from Domestic Violence Act (PWDVA) 2005 and Child Marriage Prohibition Act 2006 had done earlier. 

At its crux, adoption is a compelling way to meet the needs of children in dire need of a family even as it addresses the desires of persons and families who wish to raise a non-biological child as their own. 

(Saumya Uma is a researcher and trainer on gender, law and human rights.)

—(Women's Feature Service)
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