Non-Hindus get an adoption fillip

MUMBAI: Writer Dilip D’Souza and his wife Vibha have two children — 7-year-old Sahir and Surabhi, 2. But legally speaking, the D’Souzas are Sahir’s parents, not Surabhi’s. They are just the girl’s ‘guardians’.

The D’Souzas adopted Surabhi under the Guardians and Wards Act, 1890, which governs adoption for non-Hindus (Christians, Muslims, Parsis and Jews). “I don’t like the idea that my children stand on different legal footings,” says D’Souza echoing the anxiety of hundreds of non-Hindus, who are just ‘guardians’ of their adopted children until they turn 18.

An August 2006 amendment to the Juvenile Justice (JJ) Act, however, allows people belonging to any religion to adopt, and gives the adopted child the same legal rights as a biological child.

The JJ Act was amended in 2000 to include ‘secular’ adoption, but it did not specify the rights of the adopted child. “There has not been a single adoption in Maharashtra under the JJ Act since 2000,” says Sunil Arora of Bal Asha, an adoption agency. But the recent amendment to the Act allows an adopted child to become the “legitimate child of his adoptive parents with the rights, privileges and responsibilities attached to the relationship”.

Starting afresh: From guardians to parents

Dilip D'souza and his wife Vibha, like many others, are still unaware of the adoption option under the amended Juvenile Justice (JJ) Act. "Of course, I would have considered it had I known about it," D'souza says. Though being two-year-old Surabhi's 'guardians' makes no difference in their day-to-day life, the child is at a legal disadvantage. She has no inheritance rights unless it is specified in a will. Also, the adoption can be revoked once she turns 18.

On the other hand, children adopted under the Hindu Adoption and Maintenance Act (HAMA), 1956, get the full status of a biological child, including the right to inherit. "In the absence of a uniform law on adoption, the 2006 amendment to the JJ Act does try and obviate some of the shortcomings for non-Hindus," says Gaurang Mehta, secretary of the National Association of Adoptive Families.

The JJ Act allows adoption of two children of the same sex (not allowed under HAMA ), permits single parent adoption, includes adoption of abandoned and surrendered children, and allows the Juvenile Justice Board to hear adoption petitions. 

Teething trouble: Adoption activists, however, foresee teething troubles. For instance, the JJ Act is completely silent on where it stands vis-à-vis the existing legislation on adoption. "Nowhere does the JJ Act state that it supersedes the HAMA and GWA," says lawyer Rakesh Kapoor, who specialises in adoption laws.

He points out that HAMA has a clause stating that any adoption carried out in contravention with its provisions will be considered void. "The JJ Act is not a standalone legislation on adoption. It will not stand unless the HAMA and GWA are amended and brought in harmony," he adds. 

The JJ Act has also created a multiplicity of authorities clearing adoption petitions. So far, parents wanting to adopt could file petitions in the City Civil Court and the High Court. The JJ Act allows the Juvenile Justice Board to process adoption petitions. "Will the Board have the same powers as the High Court?" asks Sunil Arora of Bal Asha.

The Act is silent on inter-country adoptions as well as prohibition of adoption in the religious laws of some communities. "The amendment is a recent one and is yet to be tested," says Neelima Mehta, chairperson of the Child Welfare Committee. "It is a step towards creating a uniform law on adoption."