BY Mohammad Abid Hussain Ansari.
The term adoption is not a new term. It is an old practice in Greece. The law related to adoption was there in Greece. Only an adult, sound adult who is not having any child can go for adoption. There are three types of adoption which have been recognized in Greece. They are listed below: a. The first one is adoption inter-vivos; b. The second one is through the testamentary manner; c. And the last one is related to the adoption where any relative adopts a child in the name of the deceased.
In the first category of adoption, through a contract adoption was done and as per the religious practice the other two categories are dealt. Although, this term came into existence in Greece but was not used during the Roman period. Later on, it became a practice in the modern world. Before this practice, the abandoned children were used for slavery. But when this system of slavery became prevalent then the concept of guardianship got its importance. The church promoted the idea of adoption when the illegitimate children were neglected by the society. But if we talk about India and China, they had this system right from the beginning and it was governed through their personal laws. China has uniformed the adoption in 1981. Earlier, the common law did not permit adoption.
The term adoption can also be referred to as a legal birth of a child into the prospective intended adoptive family when there is a civil death of a natural born child in the family. It is similar to transplantation of the child from one family to another as it is one of the pious deeds to help a homeless child and a blessing for both.
In India, if we observe the history, we will find that under ancient Hindu law, it was believed that for the purpose of performance of religious practice and continuation of the lineage, there was a requirement of a son. Ancient Hindu law was not clear about the adoption of a female child. It was neither approved nor prohibited, which resulted into the rare adoption of a girl child. Also, the women under Hindu Law were not permitted to adopt a child. The theory of ‘Relation back’ was followed in case of adoption if done by a female. But later on, it has been abolished by India. This is how the concept of adoption has been recognized under Hindu law, though there was gender bias in terms of adoption. There was dominance of personal law over the concept of adoption.
After the enactment of the Hindu Adoption and Maintenance Act, 1956, gender bias has been abolished as mentioned earlier. Everyone is now permitted to adopt a child under the following conditions. Now, both the boy and a girl child can be adopted by the intended adoptive parents. It was also said to have a secular object in terms of adoption. Now, married couples are allowed to go for adoption i.e., can adopt a child with the prior consent of the other spouse. A widow, spinster, widower and even a bachelor can go for the adoption of the child. A person is barred to adopt a child of the same sex in a case where he has a natural biological child or an adopted one. There should not be any prohibition on this issue and the question is why this prohibition is still there?
In the case of Sandhya v. Union of India, the question about its secular nature has been discussed. It was formulated by the court of law that it does have a mythological and a secular mission. It is secular only in terms of adoption of a child of any gender, but is available only for Hindus. It is the case where the various provisions of the Hindu Adoption and Maintenance Act have been challenged in the court of law and to be violative of Article 14 and 21 of the Indian Constitution. But the court of law held it as constitutionally valid.
Suppose if a person has a child born naturally after the adoption, there is a chance of biased attitude of the adoptive parents. Sushmita Sen, one of the famous film stars, has promoted the institution of adoption by adopting two daughters which is technically not permitted by Hindu Law. She has adopted the second girl child under the Guardians and Wards Act, 1890 and she fought for the parental right and it was granted by the Bombay High Court. The thing is that the rules and regulations are always for the common man and not for the High Class people.
When we talk about adoption under Islam, it is not recognized. Also, Islam is not against the concept of adoption. We all know that Sunnah is accepted as a source of Islamic jurisprudence and if Qur’an is silent on the concept of adoption then we must follow the Sunnah. For example Prophet Muhammad, he has adopted a slave as his son named Zayd. As we know that Islam follows the philosophy of charity, i.e. helping out needy ones and destitute ones. It does not object to the practice of adoption but it does not give the name of the intended parent to the child through adoption. The adopted child Zayd was known as Zayd bin Harithah because he was the son of Harithah. One fine day, when his natural father called him back, then he refused to leave Prophet Muhammad and therefore his natural father disowned him. After this, Prophet Muhammad gave his own name to him. After the revelation of the Holy Qur’an, giving one’s name to the child who has been adopted was not accepted. As these verses explain: “He (Allah) has not made your adopted sons your sons. Such is (only) your (manner of) speech by your mouths. But God tells the truth, and He shows the way. Call them by (the names of) their fathers, that is better in the sight of God”. (33:4-5). After the Holy Qur’an revelation, the boy named Zayd was known by his father’s name and not by the Prophet’s name. When we analyze the concept of adoption under Islam, it is permitted but at the same time, the name of the adoptive father should not be given. It has prohibited a person from inheriting the property of the adoptive father. Though, the father is still free to give away one third of property.
If we talk about Christianity, they were never against the concept of adoption in India. It was believed that there was no adoption until the case of Phillip Alfred Malvin v. V.J. Gonsalves. In the present context, canon laws were followed in order to check whether the religion permits the adoption practice or not. Indeed, it is one of the pious deeds and it has got nothing to do with the religion. Adoption falls under the umbrella of personal law because the issues related to property and other family matters are being governed by personal laws. Now, the concept of adoption is being strengthened by CARA guidelines within India when we face adoption liberalised with the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000. It is related to adoption scams. After that, the law enacted stringent provisions for adoption. As per my understanding, the concept of adoption is now losing its significance due to the newer concept of surrogacy. It is much better to provide and develop the life of a child who is already there in the world than having a new life as a child through surrogacy because it is free from the religion clause.
There was no uniformity of law for adoption in India until the judgment of Shabnam Hashmi which has solved the related issue. In 2014, the judgment of Shabnam Hashmi provided adoption as a Fundamental Right. It permitted that any person irrespective of religion can adopt a child under the Juvenile Justice (Care and Protection of Children) Act, 2000. This case was presented by Shabnam Hashmi in 2005. She had only guardianship rights over a girl adopted by her as granted by the court because as per the Muslim Law, adoption is not allowed. She claimed that this adoption should be allowed on Humanitarian grounds and as a Fundamental Right as well. After the finality of this case, the judgment has permitted all future intended parents to go for the adoption process (can adopt a child) under the Juvenile Justice (Care and Protection of Children) Act, 2000 irrespective of religion, and it was also held that this act has a secular nature for the purpose of adoption of children under prescribed procedure.
Besides this, we also have CARA which provides us certain guidelines which should be followed while adopting a child (Inter-country and Intra-country adoptions). The question is why should we include adoption under personal law as a part of religion? Why do we have different legislation and guidelines dealing with this noble act of adoption? For this we have: a. The Hindu Adoption and Maintenance Act, 1956 b. The Juvenile Justice (Care and Protection of Children) Act, 2000 c. Guardianship and Wards Act, 1890 d. CARA and SARA guidelines
In India, there is a requirement of having a common and uniform law for adoption instead of numerous legislations and guidelines because it should not be based upon the concept of gender or religion. Different safety measures should be included in order to curb scams related to the adoption. In Payal @ Sharinee Vinayak Pathak, the court of law has decided that the bar on adoption of a child of same sex under the Hindu law will give way to statutory provisions in the Juvenile Justice Act which permitted the childless parents. In Secretary, Subhadra Mahatab Seva Sadan of Kolathia v. State of Orissa, it was held that a doomed/abandoned child can be adopted for their protection under the Juvenile Justice Act.
In the US, most of the states have made their law based on the Uniform Adoption Act, as it is not a fundamental right to adopt. Most of the nations permit one of the two adoptions, either open adoption or closed adoption. Some nations permit both forms of adoptions. The rules are not based on any religion, rather a uniform approach is being followed. We need to settle these issues by securing a place for a Uniform Civil Code. In India, it is challenging to bring into real practice but by the way of adoption, a step towards a Uniform Civil Code can be initiated.
We need to make this practice a welfare scheme in order to release it from the shackles of religious prohibition. The state should encourage the practice of adoption instead of promoting surrogacy so that a uniform law of adoption can help the needy child to get a home. As of now, the judiciary has provided the welfare mechanism for the uniformity of adoption through its judgments such as Shabnam Hashmi and Philip Alfred Malvin. And now, it is the duty of the legislature to provide a Uniform Law for adoption which is the need of the hour.