NEW DELHI, October 21 (Compass) - Article 14 of the India Constitution guarantees every citizen the right to equality before the law, but only Hindus can legally adopt in India. Christians and other religious minorities can only become guardians.
India's Supreme Court on September 26 issued a notice to the federal government asking it to respond to the absence of laws enabling religious minorities to legally adopt children.
The notice came in response to a petition by a social activist seeking a special law enabling people of all religious communities to adopt legally. The petitioner argued that the absence of such a law is one of the reasons why the average number of adoptions in India is low, reported the Hindustan Times on September 27.
According to estimates, India has more than 12 million orphaned and 44 million destitute children. Barely 5,000 are adopted each year.
The law that governs adoption in India is the Hindu Adoption and Maintenance Act of 1956, which allows only Hindus to adopt. Christians can become guardians under the Guardians and Wards Act (GAWA) of 1890. GAWA, however, does not give the child the status of the family’s biological children, and guardianship may be revoked in certain situations. Moreover, there is no legal relationship once the child reaches age 18 years.
A law passed in 2000, the Juvenile Justice (Care and Protection of Children) Act (JJA) of 2000, allows Christians and other religious minorities to adopt, but confusion about the role of adoptive agencies has stalled implementation.
"My client could not adopt under JJA because Justice C.K. Mahajan of the Delhi High Court ruled that the members of the Delhi Juvenile Justice Board (JJB), constituted under the JJA, have not been empowered to deal with adoption matters," attorney Jagdeep Kishore told Compass.
Section 41 (3) of the JJA states that the JJB "shall be empowered to give children in adoption," implying that the state government must empower the adoption body and the JJB's adoptive powers are not automatic, Kishor explained. "In fact, no state government has notified the empowerment of its JJB," he said.
Aloma Lobo, chairperson of the Central Adoption Resource Agency, an autonomous body under the Ministry of Social Justice and Empowerment set up to deal with matters concerning adoptions, concurred. "No child has been given in adoption under JJA so far, because the adoption process has not yet been initiated anywhere."
"It is unfair that my husband and I cannot give our adopted child the same rights as we could give to a biological child, just because we are Christians," said one of Kishor's clients, who took a child into her family under GAWA in Delhi this year. "It is frustrating we could not become adoptive parents under JJA despite waiting for one long year. At last, we had to take the child under GAWA."
Dr. John Dayal, secretary general of the All India Christian Council, said the government's reluctance to protect minority communities' adoption rights amounts to abdication of responsibility towards orphans and the destitute.
"Why should a secular country have communal adoption laws?" he asked. "Article 39 of the constitution states, 'The State shall direct its policies towards securing that childhood and youth are protected against exploitation and moral abandonment.' Given that, why should the state not ensure this protection to Muslim, Christian, Parsi and Jewish children?"
The right to adopt is an enabling provision, not a coercive one, Dayal said. "No one should have any problems with it, as there's no compulsion to adopt. But for those who want to do so, irrespective of community or gender, the option should be provided under a universal adoption law."
Christians have long been lobbying for the recognition of their adoption rights.
The Catholic Bishops' Conference of India (CBCI), the National Council of Churches in India, and the Evangelical Fellowship of India - under the banner of "United Christian Forum" - held several meetings with concerned ministers in 2004 to urge the government to enact a law enabling Christians to adopt.
"In a democratic country like India, laws should be framed keeping in mind the welfare of all sections of the society," Dr. Babu Joseph, spokesperson of the CBCI, told Compass. "Even if the minority communities would want to follow their own adoption procedures, it should be permitted in so far as such practices are not contrary to the existing laws and welfare of the adopted persons."
Christian and Muslim minorities in India have personal laws for matters related to marriage and succession according to their respective religious beliefs and practices.
Although there is no codified law enabling Christians to adopt, case laws in the states of Kerala, Maharashtra and Goa allow Christians who have taken a child in guardianship under GAWA to petition the courts for the adoption of the child.
Justice D. Sreedevi of the Kerala High Court ruled in 1999 that even in the absence of any specific law recognizing adoption by Christians, an adoption made by a Christian couple is valid, and the child adopted is entitled to inherit the assets of the couple.
Similarly, Justice F.I. Rebello held in the same year that since there was nothing in Christians’ religion that forbade adoption, then they could adopt.
Although Indian Christians cannot adopt legally, Christians from outside India can take Indian children under GAWA, and convert their guardianship into adoption under the laws of their respective countries.
Source: Compass Direct