Adoption under Hindu Law

    Introduction

    “Perhaps there are those who can go about their lives unfettered by such concerns. But for those like us, our fate is to face the world as orphans, chasing through long years the shadows of vanished parents. There is nothing for it but to try and see through our missions to the end, as best we can, for until we do so, we will be permitted no calm.” –  Kazu Ishiguro[1]

    It’s not rocket science to predict that our country’s future lies on our young ones’ shoulders, and the government takes adequate measures to maintain their safety. In doing so, government and judicial authorities focus on the adoption laws of children. It’s unfortunate to see that on one side, we have children who get all the necessities, their guardians adequately feed them, they are provided with every amenities, starting from clothes to education. Moreover, they are loved. The picture on the other side is disparate; nearly sixty to seventy-thousand children are abandoned every year.[2] These kids have no place to stay, no food to eat, no shelter to relax in, no lap of the mother, or their father’s love. They are entirely on their own. The conditions are so adverse that the orphanages are not completely hygienic and habitable in some cases.

    Who can seek maintenance under section 125 of the Code of Criminal Procedure, 1973?

    Like it is said, when everything is against you, everything will keep going against you. These abandoned angels sometimes become the victims of their predators. These predators are mainly Human Trafficking and Sexual Violence; they are left malnourished as if they were the criminals in their past life. India’s situation keeps on worsening day by day, year by year, shading the dreams of millions and torturing their hearts inch by inch, like the dagger. If the child is lucky, then, in that case, he would be taken to adoption agencies where he/she might hope for a good life while silently waiting to get noticed by someone interested in adopting a child. Even after getting adopted, there’s no guarantee that the gems would find peace and surely shine. It is wholly decided by destiny since there’s no one to assure for taking care of them. 

    In this blog, the legal structure of the adoption laws in India is adequately discussed. The blog then discusses the need for a uniform civil code regarding adoption.

    Origin of adoption laws

    During the era of violence that the adoption laws came into the picture, the first World War was the primary reason for the development of adoption laws.[3] The influenza epidemic and the repercussions of World War I were the few reasons. Parents abandoned their kids; some were forcefully separated from their families. Countries were on the verge of collapse, and these conditions gave additional blows to the countries. Countries thus had to enact new and stable legislation for adoptions; some countries already had such legislation, so they decided to modify them to make them reliable and suitable for modern scenarios.[4]

    Religion and Adoption

    Adoption falls under the confined boundaries of personal laws, and as a matter of fact, most personal laws are thus religiously motivated. While most religions in India prohibit adoption, some accept the concept with open arms. However, religion doesn’t stop the adoptee from adopting the child since the Indian laws permit adoption.

    Adoption is not permitted in the personal laws of Muslims, Christians, Parsi, and Jews in India. Hence, they usually opt for guardianship of a child through the Guardians and Wards Act, 1890. Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are formally allowed to adopt a child. The adoption is under the Hindu Adoption and Maintenance Act of 1956 enacted in India as a part of the Hindu Code Bills. It brought about a few reforms that liberalized the institution of adoption.[5]

    Hindu Adoptions and Maintenance Act, 1956 

    The Hindu Adoptions and Maintenance Act was introduced in 1956; it was the sign to the world that Indians could maintain and safeguard the adoption concept. The Act, to some extent, reflects the principles of equality and social justice by removing several (though not all) gender-based discriminatory provisions. The Act mainly focused on these aspects of adoption:

      • Gender biases
      • Capacity to give in adoption
      • Effect of adoption
    • The ability of a Hindu male to adopt:

    A person of sound mind, who is not a minor and belongs to the Hindu religion, can adopt a son or a daughter, as per his choice. Although there are still certain conditions that need to be fulfilled, if the husband has a wife alive, he needs to get her consent before adopting it. But, if his wife has demised or if she decides not to get recognized as a Hindu, or if she becomes of unsound mind then, it is not necessary to get the consent.[6]

    • The capacity of a Hindu female to adopt:

    A female whose husband is dead or her marriage is dissolved can adopt. Furthermore, it is also vital that the person be of sound mind and belong to the Hindu religion. She should be a major to have the capacity to adapt.[7]

    • Who can get adopted:-

    As per section 10 of the Hindu Adoption and Maintenance Act, 1956, Persons who may be adopted must satisfy these conditions: “(i) He or she needs to be Hindu. (ii)He or she should not be already adopted. (iii)He or she shouldn’t be married unless there is a custom or usage applicable to the parties that permit married persons to be taken in adoption. (iv)He or she should not have completed the age of fifteen years unless there is a custom or usage applicable to the parties which permit persons who have completed the age of fifteen years being taken in adoption.”[8] 

    Requirement of Uniformity

    Ironically all the laws relating to the economy or crime are similar for all the religious houses. But when we talk about adoption, which is far more critical since it deals with the weaker section of the society, the scenario completely transforms itself; it becomes a more religiously motivated topic instead of humanity. Therefore, it has become a constant prayer for the common public to instil uniformity in the law relating to society’s humane aspects. For focusing society into being united, our laws must be based on the same stage. Further, Hindus and non-Hindus, such as Muslims, Christians, and Parsis, increase tremendously. These differences in the fundamental laws result in hatred and political disputes. These disputes remain in the heart of the public, which creates discrimination among the commoners. Parents who do not belong to the Hindu religion suffer the most since they cannot adopt, and the non-uniformity prevents them from filling the void of parenthood. The prayer remains the same, although there have been slight changes to personal laws to ensure everyone can adopt. [9]

     PRIVATE DEFENCE- PROTECTION AGAINST BODY OR PROPERTY

    Moreover, bringing uniformity in the adoption laws won’t violate any fundamental right, nor will it bring any significant consequence. Getting the uniformity in the laws should be the primary objective of any state. Although India signed the “CRC (Convention on the Rights of a Child),” it still hasn’t been able to perform well in the bracket of adoption laws. Since adoption is one of Hinduism’s most accepted features, 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 not only the adoption laws but also helped change the position of women.

    On the other hand, Islam doesn’t prefer any other laws to interfere in its already followed practices. The centre up-till now has shown no such intention of moving forward, so it is the individual states’ responsibility to make a compelling lead. It’s a high time where India needs uniformity in its laws since it uses the term secular as defining its centre core.

    Alterations after implication of Juvenile Justice Act, 2015

    Amendments made before the introduction of the Juvenile Justice Act, 2015 were significant, but the Juvenile Justice Act of 2015 indeed introduced drastic changes in the adoption laws. These changes were not only the fruits of the current Act but previously drawn acts, too, had a gigantic share in them. 

    • A significant change that the Juvenile Justice Act, 2015 bought was that nothing is given in the Juvenile Justice Act, 2015 would apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act, 1956.[10]
    • The Act restricted the inter-country adoptions in a way such that such types of adoption would be done only as per the provisions of the Juvenile Justice act, 2015.[11]
    • Also, as per section 56(2), 

    “Child adoption from one relative by another, irrespective of religion, can be made according  to this Act’s provisions and the adoption regulations framed by the Authority.”[12] 

    One of the most significant changes that the Act bought with it was that it helped recognize orphans’ adoptions irrespective of their religious status.[13] It can’t be denied that it is secular legislation, only which any person can adopt a child of an orphan, abandoned and surrendered child irrespective of his/her religion. It is more child-oriented, unlike other legislations. Thus, the process of adoption became more flexible since the enactment of the 2015 act.

    Juvenile Justice Act, 2015/2000 Case

    After enacting these acts in their respective time, they had their hour of play in their eras. Some cases helped to improvise the Acts to become even more useful. One of these cases is the Indian Association for Promotion of  Adoption and Child Welfare V. Christopher Drury & Shehnaz Drury[14]:-  

    Provisions: This case dealt with the section 41(6)(b) of the Juvenile Justice (Care and Protection of Children) Act, 2000, which clearly states that “adoptive parents need to adopt the child of same-sex irrespective of the fact that they already have a living adoptive child of same-sex.” 

    Issue: The issue was whether a couple, who already has adopted one girl child, is entitled to adopt another girl child under the Juvenile Justice (Care and Protection of Children) Act, 2000?[15]

    The court held:

    • The court may allow for the adoption of a person irrespective of marital status.
    • The court will allow the parents to adopt a same-sex child, irrespective of the number of living biological sons or daughters.

    Conclusion

    Adoption from ancient ages has been considered among the most splendid acts of humanity. It also expresses the essential value of any human being, that is caring. The Act of adoption helps both parties; the adopted child gets love, care, food, and shelter, whereas the person who adopts gets to experience parenting. He/she gets to have emotional bondage with the child as if the child is his/her own.  Houses become homes; women who are already mothers get to enjoy the blissful journey of motherhood. Men who don’t have the privilege of being a father get an opportunity to be one. However, adoption gets controversial when one looks at it through the eyes of religion. Adoption needs to be examined beyond the limited sight that the religions provide. The world full of chaos needs a pinch of love to it; the humane side, which has been ridden off from humans due to inhumane treatment that society sometimes offers, needs to get re-established inside humans’ minds in the young ones.

    The animal treatment which orphans go through is hateful and shameful at the same time. Criminal activities, such as human trafficking and sexual abuses, need to be curbed out as soon as possible. These activities won’t only harm the child/orphan but also affect the country’s overall image. Strict laws are required and a new system that would look and explore the heinous acts and hunt them down. This blog would end with a beautiful quote;

    “Adoption is not about finding children for families; it’s about finding families for children.”

                                                                                              – Joyce Maguire Pavao

    References

    [1] Kazu Ishiguro, When we were orphans, 2000, p. 313.

    [2] United Nations, Child Adoption: Trends and Policies, available at https://www.un.org/en/development/desa/population/publications/pdf/policy/child-adoption.pdf, (last visited on 23rd August 2020).

    [3] Ellen Herman, The Adoption History Project, available at https://pages.uoregon.edu/adoption/topics/adoptionhistbrief.htm, (last visited on 23rd August 2020).

    [4] Id.

    [5] Supra, note 3.

    [6] The Hindu Adoption and Maintenance Act, 1956, s. 7.

    [7] The Hindu Adoption and Maintenance Act, 1956, s. 8.

    [8] The Hindu Adoption and Maintenance Act, 1956, s. 10.

    [9]  Prerna, “Uniform Civil Code and Laws of Adoption and Custody”, vol. 1, Summer Issue 2017.

    [10] The Juvenile Justice (Care and Protection of Children) Act, 2015, s. 56(3)

    [11] The Juvenile Justice (Care and Protection of Children) Act, 2015, s. 68.

    [12] The Juvenile Justice (Care and Protection of Children) Act, 2015, s. 56(2).

    [13] Id.

    [14] (2012) 114 AIC 575.

    [15] Indian Association for Promotion of  Adoption and Child Welfare V. Christopher Drury & Shehnaz Drury, (2012) 114 AIC 575.

    BY- Rushikesh D. Patil |Maharashtra National Law University, Nagpur

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