Differing procedures based on faith against the Constitution
The Supreme Court on Friday asked the government to respond to a plea seeking uniform, religious and gender neutral grounds for adoption and guardianship of children in the country.
A Bench led by Chief Justice of India Sharad A. Bobde issued notice to the Centre on the plea by advocate Ashwini Kumar Upadhyay that people of different faiths continue to follow different statutes and personal laws in matters of adoption and guardianship.
“Even after years of Independence, adoption and guardianship procedures are very complex cumbersome and neither gender nor religion neutral,” the petition said.
It said Hindus, Buddhists, Sikhs and Jains are dealt with Hindu Adoption and Maintenance Act and Hindu Minority and Guardianship Act. Muslims, Christians and Parsis have their own personal laws. Couples belonging to different religions have to seek adoption under the JJ Act of 2000. NRIs, overseas citizens and foreign prospective adoptive parents, living in a country which is signatory to the Hague Adoption Convention and wish to adopt Indian child, need to approach an authorised foreign adoption agency or central authority subject to the Adoption Regulation of 2017.
“So the grounds of adoption-guardianship are neither gender nor religion neutral. Muslims are bound to follow Kafala system under which a child is placed under a Kafil (guardian) who takes care of child’s upbringing, marriage, well-being, but the child continues to remain the descendant of his biological parents and not adoptive ones. An adopted child cannot inherit the guardian’s property and retains his biological name. If the child’s family is not known, only then he can carry the name of adoptive family," Mr. Upadhyay argued.
Whereas in the Hindu law, an adopted child is considered the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. Christians and Parsis have different grounds of adoption-guardianship. The differences based on faiths are against spirit of the Constitution, the petitioner said.
“Custody, guardianship, adoption, maintenance, minimum marriage age, grounds of divorce, succession and inheritance, are secular activities. Hence it is the duty of the State to ensure that every citizen, including third gender, have uniform adoption & guardianship right, uniform minimum age of marriage, uniform grounds of divorce, uniform maintenance & alimony, uniform succession & inheritance,” Mr. Upadhyay submitted.
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