Court gives Hindus free hand in adoption in India
20 September 2009
MUMBAI: Hindus who have always wanted to adopt a girl even though they already have a daughter can now do just that. The Hindu adoption law prohibits same gender adoptions but, in a landmark judgment this week, the Bombay High Court has thrown open the legal doors to allow Hindus adopt a child of the same gender as their existing one.
In the verdict, the HC allowed a recent petition by Mumbai-based actor couple (names withheld on request) to be legally declared as adoptive parents of a girl they had taken in as their ward over four years ago under the Juvenile Justice Act. The couple had a two-year-old biological daughter of their own when they sought and were allowed by the court in 2005 to become guardians of a year-old destitute baby girl.
Stating that courts must harmonise personal laws with secular legislation, Justice D Y Chandrachud held the Juvenile Justice (Care and Protection of Children) Act of 2000 — a secular law enabling rehabilitation of abandoned children through adoption — would prevail over the Hindu Adoption and Maintenance Act (Hama), a personal law that has placed certain restrictions on adoption.
Justice Chandrachud took up the Pathaks’ issue seriously as it “involved the larger issue of encouraging adoption and giving an abandoned child a chance in life’’.
He looked closely at adoption laws under their various avtars and at the Indian Constitution as well as the Convention on the Rights of the Child which India had ratified in 1992 before ruling that “adoption is a facet of right to life and that freedom and dignity are the foremost values of governance in civil society and freedom and dignity of the young must count above all’’.
This was the first time the court was interpreting provisions of two conflicting legal provisions on adoption; it had a 54-year-old Hindu Adoption Act and the more progressive nine-year-old Juvenile Justice Act, which introduced adoption of abandoned children and gave it a wider platform.
The Hindu law places stringent conditions and prohibits adoption of a child of the same gender where an adoptive father or mother already have a child living at that time. For instance, if the adoption is of a daughter the adoptive parent must not have a Hindu daughter or a son’s daughter living at the time of adoption. Conditions are stricter while adopting a son and adoptive parents must not have a Hindu son, a grandson or even a great-grandson alive.
The Juvenile Justice Act, a countrywide beneficial social law, came in 2000 and introduced a ‘child-friendly’ approach towards adoption “in the interest of ultimate rehabilitation of a narrow sub-class of children who are orphaned, abandoned or surrendered’’.
The HC, after hearing advocate Vishal Kanade for Pathak, held: “Right to life includes rights of parents and of individuals, women and men, who wish to adopt to give meaning to their lives on the one hand and, on the other hand, is the right of abandoned children who are in need of special care and protection.’’