New Delhi: In early October, Pallavi and Javaid Gillani, a Muslim couple, became parents.
In their minds they had been parents for 10 months, ever since Khushi, who is now 13 months old, came under their foster care as they waited for a adoption petition filed by them to be cleared.
In October, Satnam Singh, the Delhi district judge, allowed the Gillanis to be adoptive parents of the child under Section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act).
The Gillanis are believed to be the first non-Hindu couple in New Delhi to have adopted a child under this Act. Under previous laws governing adoption in India, non-Hindus who adopted could never be parents, only guardians. Mint had, on 26 March, reported that the new legislation had brought hope to non-Hindu couples considering adoption.
“If we were only guardians, we would have limited rights,” said Gillani. The Gillanis now plan to apply for a new birth certificate that identifies them as Khushi’s parents. “It will make life easier for all practical purposes,” said Pallavi.
Guardians encounter scores of practical problems related to visas for travel to certain countries, or inheritance (the child isn’t bestowed with automatic inheritance rights in such cases). And the guardian-ward relationship ends when the child turns 21.
The court’s order is potentially controversial and is likely to be challenged by some sections of the Muslim clergy because Islam does not recognize adoption. However, adoption agencies and social activists hope that the order will help the cause of other non-Hindus wishing to adopt—as parents.
“Around 2% of the applications received every year are for guardianship and the rest are all for adoptions mostly by parents from the majority Hindu community,” said Himadri De, administrator at the New Delhi office of the Church of North India Shishu Sangopan Griha (CNISSG), an adoption agency.
“We welcome this order. The JJ Act is a secular legislation. The Act is not well implemented at the moment, but these orders will hopefully change that,” added Loveleen Kakkar, joint secretary in the Union ministry of women and child development.
The Act under which the Gillanis became parents has been in force for seven years—it provides an alternative to the 117-year-old Guardians and Wards Act, under which non-Hindus can only be legal guardians—but almost no one in New Delhi has used it.
Legal experts say this could be because of a combination of lack of awareness and initiative, and that non-Hindu couples in other parts of the country have been leveraging the provisions of the Act to be defined as parents.
“There could be confusion since some look at the JJ Act as a legislation for juvenile delinquents and not for adoption,” said De.
In Mizoram, Christian couples have been successfully adopting under the JJ Act since 2005. “Around 55 children have been adopted under the Act since 2005 by mostly Christian couples,” said Lal Dikkimi, nodal officer at the adoption cell of the social welfare department in Mizoram.
The JJ Act also allows for parents, who already have children, to adopt children who are of the same sex as the existing children, something that was not allowed under the Hindu Adoption and Maintenance Act, 1956.
Mohan M. Godbole, village director of Balgram Rai, an orphanage in Sonepat district, Haryana, said the state is yet to see a petition under the JJ Act for a fresh adoption by non-Hindu parents, but added: “Hindu couples in the state have begun using the JJ Act route to apply for adoption of children of the same sex as their biological children since it is not allowed under the Hindu Adoption and Maintenance Act.” He said two such applications were currently being processed in the state.
CNISSG, the adoption agency that helped the Gillanis, said it is processing cases where many non-Hindu couples, who had earlier adopted under the Guardians and Wards Act, are converting their status to adoptive parents by applying under the JJ Act. In September, the district court in New Delhi had passed an order to this effect.
Adoption agencies fear that as the Gillani order gains publicity, it could trigger adverse reactions, especially from a section of Muslims that argues that the religion prohibits adoption.
“According to the Quran, a Muslim cannot adopt even a Muslim child. The Sharia (the Muslim code) very clearly states that a Muslim can only act as a guardian to a needy child and can never be granted the rights of a parent,” said Asaduddin Owaisi, a lawyer who is a Lok Sabha member of the All India Majlis-E-Ittehadul Muslimmen party.
He added that petitions for adoption by non-Muslims under the JJ Act amount to an abuse of the Act. “The All India Muslim Personal Law Board has already made a representation to the government against the misuse of a provision of the Juvenile Justice Act, which has triggered this needless controversy. The board is also readying to challenge this in the courts.”
Not everyone agrees with Owaisi. “Adoption is a humanitarian cause involving needy children. One must rise above religion, race and even country in this case... Even if the religion does not strictly allow adoption, several Islamic countries, too, do allow it in practice,” said Mukhtar Abbas Naqvi, vice-president of the Bharatiya Janata Party.
One reason for the confusion and the controversy surrounding the Act is because it coexists with conflicting personal laws. “The old laws were not repealed after the passage of the JJ Act. The Act is a progressive enactment and does not force a citizen to adopt through its provisions—those who chose to use it, do it voluntarily,” said Colin Gonsalves, senior counsel at the Supreme Court.
And Jagdeep Kishore, an advocate at the Delhi high court, who filed the petition for the Gillanis, said the Act is free of “all religious undertones”.
A PIL (public interest litigation) challenging the ban on adoption in Islam, filed by social activist Shabnam Hashmi in 2005, is currently pending before the Supreme Court. The All India Muslim Personal Law Board sought to intervene in this matter by filing an application (raising objections to the PIL) that is yet to be allowed.
“For almost 15 years now, adoption agencies have been lobbying with the government to bring out a uniform code on adoption. There are lakhs of children waiting to be adopted in India,” said Hashmi.
This hasn’t happened, she added, but the JJ Act has given Indian couples a way out when the laws governing their religion clashes with their desire to adopt. Babu Joseph, a spokesperson for the Catholic Bishops’ Conference of India, said while the JJ Act was a law “in the right direction”, India needed “a uniform law related to adoption” and that if this went “against the beliefs of a community”, then there should be “separate laws” for such communities.
Ashish Sharma contributed to this story.