What Indian children need is a strong consensus from all communities that will eliminate the religion-specific nature of adoption laws
It is a sad state of affairs when a country full of orphans does not have a uniformly applicable adoption law. The Centre has recently decided to introduce a Christian adoption bill to speed up the formalities for adoption. The very name of the bill points to a basic flaw in India’s approach to the issue. Adoption remains mired in the respective personal laws of the various religious communities; the humane impulse of giving a needy child a good home and receiving in turn someone to love and nurture is lost among the labyrinthine dos and don’ts of ancient religious pronouncements. It does not matter that the religious strictures were laid down at a time when society was very different from what it is today. In a multi-religious country, it often seems more important to hold on to even the most regressive elements in the respective personal laws, in order to preserve an embattled sense of identity. In this case, at least, the sufferers are children who need care and adults who want to care.
Only Hindus in this country can legally adopt children under the Hindu Adoption and Maintenance Act, 1956. The act applies to Buddhists, Jains and Sikhs, but Muslims, Christians, Parsis and Jews are excluded from its purview. They can only make use of the old Guardians and Wards Act, 1890, which permits merely a guardian-ward relationship between the adopting adult and the adopted child, a relationship that can be dissolved when the child attains maturity. It follows, according to the personal law of some communities, that the adopted child does not have the same inheritance rights — equal to that of a biological child — that is bestowed by the Hindu Adoption and Maintenance Act. And this is apart from the obvious emotional conflicts involved.
Adoption is a difficult and delicate business, and can undoubtedly cause serious personal and social problems of its own. As the very first step, strict legal safeguards and monitoring bodies are essential for the safety of the child. The number of crimes associated with adoption are an index of the danger vulnerable children are in. India’s safeguards are still not adequate, although its laws and Supreme Court judgments show both awareness and effort in the right direction. Even the Hindu Adoption and Maintenance Act has a number of flaws. It is oriented towards the parents, rather than the children. This is not surprising, since Indian society and law, whatever awareness they may have acquired about adoption, are miserably short on awareness about children’s rights. If people felt strongly enough about children’s needs, perhaps the issue of adoption would have freed itself of the fetters of personal law by now.
The issue of personal laws itself has perhaps grown more sensitive over the years. The politics surrounding it succeeded in blocking two efforts of earlier governments to formulate a general law on adoption, once in 1972 and again in 1980. There have been others. What is required is a strong consensus from all communities that will eliminate the religion-specific nature of adoption laws. Children in need should not be made to pay for the confining blindnesses of personal laws.