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Adoption can be a most beautiful solution, not only for
childless couples and single people, but also for the homeless
children. It enables a parent-child relationship to be established
between persons, though not biologically related. It is defined as
a process by which people take a child not born to them and raise
the child as a member of their family.
Adoption as a legal concept was available only among the members
of the Hindu community. Only Hindus were allowed to legally adopt
the children and the other communities could only act as legal
guardians of the children. The religion-specific nature of adoption
laws was a very retrograde step as its reinforced practices which
were unjust to children and hindered the formation of a Uniform
Civil Code.
The Hindu Adoptions and Maintenance Act ("the
Act"), 1956, provides for adoption of Hindu children
by the adoptive Hindu parents. However, the Act is not applicable
to other communities like Muslims, Christians and Parsis. The other
communities have to recourse to Guardians and Wards Act, 1890,
wherein they become guardians of the children.
Section 7 of the Act lays down as to who is permitted to adopt a
child;
"Section 7: Any male Hindu who is of sound mind and is not
a minor has the capacity to take a son or daughter in adoption;
Provided that, if he has a wife living, he shall not adopt
except with the consent of his wife unless the wife has completely
and finally renounced the world or has ceased to be a Hindu or has
been declared by a court of competent jurisdiction to be of unsound
mind."
However, Section 11 of the Act lays down prohibition whereby a
person already having say a daughter, cannot adopt another girl
child. Once a person has a child of one gender, according to the
section, cannot adopt another child of the same gender. This was a
cause of dispute and agony to many adoptive parents.
This anomaly was put to rest in a landmark judgment of the
Hon'ble Bombay High Court, whereby the laws and concept of
adoption of a child by a Hindu (which is governed by the Hindu
Adoptions and Maintenance Act, 1956 as mentioned above) would now
have to be read in a new light. The Bombay High Court by this
judgment has thrown open the legal doors allowing Hindus to adopt a
child of the same gender and to treat the same in law as their
existing biological child.
The Hon'ble Juctice Mr. D. Y. Chandrachud stated that the
Courts must harmonise personal laws with secular legislation, and
thus held that the Juvenile Justice (Care and Protection of
Children) Act of 2000 - a secular law enabling rehabilitation of
abandoned children through adoption - would prevail over the Hindu
Adoption and Maintenance Act 1956, a personal law that has placed
certain restrictions on adoption.
The High Court further held that : "Right to life
includes rights of parents and of individuals, women and men, who
wish to adopt to give meaning to their lives on the one hand and,
on the other hand, is the right of abandoned children who are in
need of special care and protection."
The Juvenile Justice Act, a countrywide beneficial social law,
came in the year 2000 and introduced a \'child-friendly\'
approach towards adoption "in the interest of ultimate
rehabilitation of a narrow sub-class of children who are orphaned,
abandoned or surrendered".
The primary aim of the Juvenile Justice (Care and Protection of
Children) Act, 2000 is to provide for the welfare and benefit of
abandoned, surrendered and orphaned children who can't be cared
for by its biological parents with a permanent substitute family.
The family of a child has the primary responsibility to give it
care and protection. The act provides for the welfare and adoption
of such children and ensures that they live a full and healthy
life.
This judgment of the Bombay High Court has now provided clarity
to the Juvenile Justice Act, 2000 and the Hindu Adoption and
Maintenance Act, 1956 and has enabled people of all religions and
especially Hindus to adopt any child irrespective of its gender if
it needs to be cared for and nurtured.
It is hoped that this judgment will lead to the rehabilitation
of various unfortunate children who have been abandoned,
surrendered or orphaned and will provide all of them with a
brighter future and a family life.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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