On Wednesday, the Supreme Court gave Muslim parents the right to legally adopt a child. Although Muslim personal law does not recognise adoption, this judgment spells out for the first time that the Juvenile Justice Act allows Muslims – and members of any religious community – to adopt children.
The clarification came in response to a nine-year-old Public Interest Litigation filed by activist Shabnam Hashmi.
Until the JJ Act was amended in 2006, minorities like Muslims, Christians, Parsis and Jews who adopted children were only allowed “guardianship” or “foster care” until their “wards” turned 18. They were not recognised as legal parents, and their adopted children did not have inheritance rights. However, the Hindu Adoptions and Maintenance Act (1956) allows Hindus, Buddhists, Jains and Sikhs to be a legal parents and gives their adopted children the same inheritance rights as biological children.
The discrepancy arose from the fact that minority communities are governed by specific "personal laws", based on the provisions of their religious texts. These personal laws do not acknowledge adoption. Instead, adoption for minorities was determined by the Guardians and Wards Act of 1890.
In 2006, the JJ Act was amended to give adopted children "all rights, privileges and responsibilities” of biological children. “The latest SC judgment is significant because it interprets this aspect of the JJ Act in the context of religion and states that it is applicable to all religions and communities,” said Dibyajyoti Jaipuriar, one of the lawyers who handled the PIL. “Children adopted under this Act get all the rights that biological children have.”
Over the past four or five years, several parents from minority communities have already taken advantage of the amended JJ Act to adopt children. The Supreme Court judgment makes it clear that all Indian citizens have the right to adopt legally, irrespective of personal religious laws.
For now, however, the Supreme Court has not made the right to adopt a statutory right. “When I filed the PIL in 2005, I was asking for adoption, irrespective of religion, to be made acceptable under articles 14 and 21 [right to equality and life] of the Constitution,” said Hashmi, a human rights activist who adopted her daughter 17 years ago under the Guardians and Wards Act. “But the court ruled that adoption cannot be made a fundamental right at the moment.”
Nonetheless, Hashmi and other adoptive parents and activists hail the Supreme Court verdict as a landmark judgment for all. “Anything that enables adoption is good news – why should there be obstacles when there are willing parents?” asked Dilip D’Souza, a Mumbai-based writer who adopted a daughter 10 years ago. D’Souza and his wife, who is a Hindu, wanted to adopt under the Hindu Adoptions and Maintenance Act, but were not allowed to because “my name marked me as a Christian”, says D’Souza.
“We are currently our daughter’s ‘guardians’ but would love to change our status to ‘parents’ after the new SC judgment,” he said.
Dr. Aloma Lobo, co-author of the Penguin Guide to Adoption in India, says that the amended JJ Act has been the preferred route for scores of parents in Karnataka to adopt children. Many Hindus, too, are opting for this Act because, unlike the Hindu Adoptions and Maintenance Act, it allows them to adopt more than one child of the same sex.
“When somebody adopts, they want to adopt fully, completely, which minorities could not do earlier,” said Lobo. “At last we have a fair system in place.”
We welcome your comments at
letters@scroll.in.
The clarification came in response to a nine-year-old Public Interest Litigation filed by activist Shabnam Hashmi.
Until the JJ Act was amended in 2006, minorities like Muslims, Christians, Parsis and Jews who adopted children were only allowed “guardianship” or “foster care” until their “wards” turned 18. They were not recognised as legal parents, and their adopted children did not have inheritance rights. However, the Hindu Adoptions and Maintenance Act (1956) allows Hindus, Buddhists, Jains and Sikhs to be a legal parents and gives their adopted children the same inheritance rights as biological children.
The discrepancy arose from the fact that minority communities are governed by specific "personal laws", based on the provisions of their religious texts. These personal laws do not acknowledge adoption. Instead, adoption for minorities was determined by the Guardians and Wards Act of 1890.
In 2006, the JJ Act was amended to give adopted children "all rights, privileges and responsibilities” of biological children. “The latest SC judgment is significant because it interprets this aspect of the JJ Act in the context of religion and states that it is applicable to all religions and communities,” said Dibyajyoti Jaipuriar, one of the lawyers who handled the PIL. “Children adopted under this Act get all the rights that biological children have.”
Over the past four or five years, several parents from minority communities have already taken advantage of the amended JJ Act to adopt children. The Supreme Court judgment makes it clear that all Indian citizens have the right to adopt legally, irrespective of personal religious laws.
For now, however, the Supreme Court has not made the right to adopt a statutory right. “When I filed the PIL in 2005, I was asking for adoption, irrespective of religion, to be made acceptable under articles 14 and 21 [right to equality and life] of the Constitution,” said Hashmi, a human rights activist who adopted her daughter 17 years ago under the Guardians and Wards Act. “But the court ruled that adoption cannot be made a fundamental right at the moment.”
Nonetheless, Hashmi and other adoptive parents and activists hail the Supreme Court verdict as a landmark judgment for all. “Anything that enables adoption is good news – why should there be obstacles when there are willing parents?” asked Dilip D’Souza, a Mumbai-based writer who adopted a daughter 10 years ago. D’Souza and his wife, who is a Hindu, wanted to adopt under the Hindu Adoptions and Maintenance Act, but were not allowed to because “my name marked me as a Christian”, says D’Souza.
“We are currently our daughter’s ‘guardians’ but would love to change our status to ‘parents’ after the new SC judgment,” he said.
Dr. Aloma Lobo, co-author of the Penguin Guide to Adoption in India, says that the amended JJ Act has been the preferred route for scores of parents in Karnataka to adopt children. Many Hindus, too, are opting for this Act because, unlike the Hindu Adoptions and Maintenance Act, it allows them to adopt more than one child of the same sex.
“When somebody adopts, they want to adopt fully, completely, which minorities could not do earlier,” said Lobo. “At last we have a fair system in place.”