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Business News/ Politics / Policy/  The religious contours of adoption in India

The religious contours of adoption in India

SC clarifies any person, irrespective of religion, caste and creed, is free to adopt children under the provisions of the Juvenile Justice Act

Activist Shabnam Hashmi in Constitution Club, a day after SC passed a landmark judgment that religion is no bar in adoption, based on her petition. Photo: Priyanka Parashar/MintPremium
Activist Shabnam Hashmi in Constitution Club, a day after SC passed a landmark judgment that religion is no bar in adoption, based on her petition. Photo: Priyanka Parashar/Mint

In 2005, human rights activist Shabnam Hashmi adopted a girl. She had a nine year old son but wanted a girl to complete the family. While completing the paperwork, when Hashmi checked the “non-Hindu" column on the adoption papers, she was told the girl would become her ward and she and her husband, the child’s guardians.

Till then, Hashmi was not aware that there was no law for non-Hindus in India for adoption, and that the Muslim personal inheritance law does not treat the adopted child at par with the biological child. She could become the girl’s guardian, but according to Muslim law, the girl could not inherit her property. Hashmi moved Supreme Court requesting that the right to adopt and be adopted, be made a fundamental right.

On Wednesday, Supreme Court passed an “optional legislation", one not received well by some religious groups, that any person, irrespective of religion, caste and creed, was free to adopt children under the provisions of the Juvenile Justice (Care and Protection of Children) Act and that personal law could not prevent anyone from adopting a child.

The bench led by Chief Justice of India P. Sathasivam said: “To us, the act is a small step in reaching the goal enshrined by Article 44 of the Constitution (Uniform Civil Code). Personal beliefs and faiths, though (they) must be honoured, cannot dictate the operation of the provisions of an enabling statute." It also made it clear that the act was not mandatory, which means that a Muslim or Parsi couple that wants a ward-guardian relationship with a child, can continue to do so.

In India, the only codified law available for adoption is the Hindu Adoption and Maintenance Act (HAMA), 1956 and it is applicable to Hindus, Buddhists, Jains and Sikhs. It is not applicable to Parsis, Muslims, Christians, or Jews.

And under the Guardian and Ward Act, persons belonging to the Muslim, Christian, Parsi or Jewish community, if they wish to adopt, can become guardians. And the legal connection between child and parent ends when the child becomes an adult.

Coming from, as she calls it, a “progressive liberal family", Hashmi says she knew her adopted daughter, who is 18 now, would not face any problem in her family, but she was concerned about people from minority communities in India who are dissuaded from adopting because the child doesn’t have the same rights as one born into the family.

“What I inherited from my parents was love and education and we will give the same things to my child. For us it was more about giving the child the respect she deserves and not carry a paper all her life stating she is a ward." In response, on Wednesday, the apex court expanded the Juvenile Justice Act to all religions in the country.

The All India Muslim Personal Law Board (AIMPB) opposed the petition in the court saying that Islamic law followed the so-called kafala system under which a child is placed under a kafil (guardian) who takes care of the child’s upbringing, marriage, and well-being but the child continues to remain the true descendant of his or her biological parents and not the adoptive ones.

Under Islamic law, an adopted child cannot inherit the guardian’s property and retains his or her biological name. However, if the child’s family is not known, the adopted child can carry the name of the adoptive family.

Adoption was not always prohibited in Islam. In fact, the prophet Muhammad had an adopted son Zaid bin Haarith, who was a slave freed by the prophet. The two became so close that the prophet declared Haarith his son. However, following a revelation, the practice of adoption was given a different connotation. One could be a legal guardian of a child but the child could not inherit the property.

Even though the Supreme Court said that this enabling provision “cannot be stultified by principles of personal law", some religious scholars consider this move as an infringement of the personal law.

“You cannot infringe upon the personal law. No one can deprive us of our religious freedom. I think a non issue is made an issue here. There is a provision in Islam that if you are worried about the adopted child’s future, you can give him/her one-third of your property, under a will," says Islamic scholar professor Akhtarul Wasey.

According to Wasey, if the adopted child inherits the property, Islam considers it unjust for the other inheritors. And that the inheritance passes not just to children, but also to the mother, sister, brother and wife of a person.

Hashmi doesn’t see it that way.

“The court has given a very balanced judgment. I don’t think anyone should have a problem with this. It will be unfortunate if anyone has any problem. No one is interfering with the personal law. The act is not forcing anyone to adopt," says Hashmi.

Noshir H. Dadrawala from the Mumbai-based, not-for-profit organization Centre for Advancement of Philanthropy, and who has written about how adoption is not yet legal among Parsis said it is “too early to comment on the ramifications of this judgment". “ In my view, adoption demands a class of legislation that must either supersede or be made compatible with the existing legislation. It is a well-settled principle of jurisprudence that when there is a general law (The Juvenile Justice Act is not a specific law on adoption) and a specific law on the same aspect of law, the latter has precedence over the former."

In 1998, Mumbai High Court had said that the Parsi community does not have the right to adopt children.

Even though HAMA does not include Christians, the deputy secretary general of the Catholic Bishops’ Conference of India (CBCI), Father Joseph Chinnayyan says the judgement won’t change much for Christians. “Christianity permits adoption. We follow the law of the land. So, whichever country we are in, we follow that country’s law on adoption."

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Published: 20 Feb 2014, 09:35 PM IST
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