ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Adoptions for All

The Supreme Court takes an important step to end civic disabilities based on religious laws.

The Supreme Court (SC) passed an important order on 19 February giving non-Hindu couples the right to adopt children. Till recently India’s anachronistic personal laws had allowed adoption only for Hindu couples and single women, including Sikhs, Jains and Buddhists. Muslims, Christians, Parsis and other religious minorities could not adopt children. They could only become guardians of orphans. The distinction is crucial. Adoption implies that the child so accepted is akin to the couples’ biological child, whereas guardianship means that the couple are not parents, merely guardians of a minor ward and this guardianship ends with the child reaching the age of majority. Apart from the emotional troubles this leads to in a parent-child relation, which is itself delicate, given the foundational trauma of the child in being removed from its biological parents, guardianship also puts the child thus adopted in a legally dubious position. A child under guardianship has weaker inheritance rights and even wills of parents can be, and often have been, challenged by other relatives in court. Worse, legally the child reverts to the guardianship of the state in the unfortunate event of the death of the guardians; in an adoption, the grandparents, uncles and aunts take care, as happens with any other child.

Like with most of our laws and codes, our adoption laws too trace their flaws and inconsistencies to their colonial origin. Till the 1850s the British did not accept adoption and did not allow inheritance to adopted children, which allowed the colonialist, as it will be remembered, to take over many “native” statesunder the doctrine of lapse. After the colony passed to the crown, one of the laws proclaimed to address the “dissatisfaction” with British rule was to allow children adopted by Hindus, not just married couples but even single women, the same legal rights as one’s “own biological child”. The rebellion of Lakshmibai, the Rani of Jhansi, has to be thanked for this! The right to adopt was not extended to Muslims since it was disallowed under their religion, and there was no demand from the Christians who were, almost entirely, the ruling British.

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