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EVALUATION OF THE EVOLUTION OF HINDU ADOPTION LAWS IN INDIA: ADDRESSING SOCIETAL CHALLENGES FACED BY THE LGBTQIA+ COMMUNITY
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EVALUATION OF THE EVOLUTION OF HINDU
ADOPTION LAWS IN INDIA: ADDRESSING SOCIETAL CHALLENGES FACED BY THE LGBTQIA+ COMMUNITY
AUTHORED BY - SHWETA SABUJI
ABSTRACT
Adoption in
India has taken a radical turn, reflecting changes in child welfare policies
and the evolution of social values against the backdrop of a world experiencing rapid change. The goal of this
study is to clarify the complexities surrounding adoption laws in India by
painstakingly charting their
historical development and highlighting current
issues. This study aims to fill in the gaps in the literature on adoption
legislation in India and highlights the ongoing relationship between
social and economic
injustices and the adoption process.
It focuses on incidents involving members of the LGBTQIA+ community
in particular, exposing
persistent discriminatory behaviors
in spite of legislative advancements acknowledging LGBTQIA+ relationships. Moreover, by conducting a thorough evaluation of research papers,
surveys, journals, and articles, this study aims to resolve
these difficulties. The study envisions a shift in societal perspectives and other consequential changes that could potentially redefine
adoption practices and norms. Researchers, students, and instructors stand to gain from the insights produced, which will also be of great use to legislators, attorneys,
and advocates working in the adoption law sector. By means of this comprehensive analysis, the
research endeavors to develop a sophisticated comprehension of adoption procedures in India,
establishing the foundation for knowledgeable discussions and possible
modifications in the adoption
domain.
KEYWORDS: Adoption, Best Interest,
LGBTQIA+, Legislations
I.
INTRODUCTION
Hindu mythology states that an only male can be adopted to uphold the
family line and perform funeral
ceremonies. Not even the Dharmasastras address the conditions for adopting
infants who are male. In the past,
adoption was done mostly for temporal and spiritual reasons, but it is now also done to satisfy the emotional and
parental needs of the adopters. In
ancient India, family members were
seen as the most important witnesses to the adoption, hence it was imperative
that they be invited to the ritual
(Dattahoma). As per Smrtikaras, in the event that a person adopts
a kid, the child would be the heir or the authority
over all inherited property, even if a male child is born after
the adoption.
Hindus have always developed adoption
because of the emphasis they place on a male child. Hindu scriptures
state that each person should have their own natural child; if not, they are
permitted to have another
child. It was considered that the sole representation of a male in historical events was a natural-born child, and accepting a
secondary son through adoption was completely wrong. Hindu scriptures, therefore, never acknowledged as genuine any
son who was not also a man's natural
son. Adoption of women was not accepted in early Hindu thinking. Proof of this
can be found in the scriptures, which
prohibit a woman or a daughter from reading passages from sacred books
or officiating at a man's burial. It was believed
that a female newborn could neither save the dead
from hell nor deliver them from the agony of the afterlife.
II.
LITERATURE REVIEW EVOLUTION OF ADOPTION RIGHTS IN INDIA
The historical
and evolutionary process produced the adoption laws in India that exist now. It
has lived in three different
historical periods: the Ancient, British, and Post-Independence periods. Adoption
regulations are influenced greatly by historical periods. Ancient Hindu texts such as the Mahabharata
and the Ramayana have references to adoption, where saints and royals made the adoption. Adoption served two purposes in ancient India:
it was used to carry on the father's lineage
and to carry out funeral customs.1 Hindu scriptures hold that
a son's performance of the funeral rites is the sole way for a father who has passed away to find redemption. 2 Because of the significance placed on the son, it was customary
in the past to adopt a son in the event that a natural
1 Niraj Meena, “Adoption Laws in India: Challenging Excisting Law”, 2020
2 Akshita Prasad & Kunal Nema, “Child Adoption
in India: A Comprehensive Study”,
September 25, 2019
child could not be born.3
Scriptures ruled adoptions
in ancient India; there were no codified
rules governing adoptions. The Privy Council
was asked to interpret authoritative Hindu texts during the British
rule. The adoption
rules of today are clearly influenced by many Privy Council rulings,
which also formed the framework for Hindu adoption
regulations.4 The Hindu Adoption and Maintenance Act, 1956 was one
of the four sections of the Hindu Code Bill that the Sir B.N. Rao Committee
presented to Parliament during the
post-independence era.Consequently, the Hindu Codified Adoption rules are established. Families and willing
individuals have been dissatisfied due to the lack of general adoption
rules. The Adoption
of Children's Bill,
the first effort
at a secular law, was introduced in 1972 and was
met with resistance by the Rajya Sabha Muslim
committee.
A different measure that had a section declaring that it did not apply to
Muslims was introduced in the Lok
Sabha in 1980, but it was eventually abandoned. The landmark case of Lakshi
Kant Pandey5 laid the
groundwork for secular adoption legislation and resulted in the departure of adoption from religious principles in
order to safeguard the child's best interests. The fact that LGBTQ individuals and couples are not
mentioned in relation to adoption rights in India is clear from the foregoing.6 The
criminalization of homosexuality under Section 377 of the Indian Penal Code
may have been the cause of this exclusion both before and after independence.
A family is the fundamental unit of society. Children bring the family
line forward. If the couple is
childless after a longer delay, they would choose adoption. Therefore, adopting
a child is the procedure by which
someone takes on the role of parent. Adoption is a global phenomenon that has taken different forms in India
throughout history and continues to do so now. Adoption's primary
motivation is to carry on the gene pool. Hindu jurisprudence states
that adoption has been accepted in one way or another from the Vedic era until the present. Adoption
was formerly viewed
as a sacramental act. However, with the passage of the Hindu Maintenance
and Adoption Act, 1956, all religious and sacramental overtones were eliminated, leaving
adoption as a secular
3 Saras Bhaskar
& R.A.C. Hoksbergen & Anneloes Van Baar & Subhasini Motiram,
“Adoption in India- The
Past, Present
and Future Trends”, December,
2012
4 Karuna Devi, “Adoption in India _ a critical
study with special
reference to abandoned
children in the state of Punjab Haryana
and Himachal Pradesh”, 2007
5 1984(2) SCC 244
6 Law Commission of India, Reforms on Family Law, 2018
institution and act. Adoption is among the legal fictions
that have been utilized to further personal
interests. In general, heterosexual couples are thought of when we think
about adoption; but, as society
advances and people learn more about one another and about the nature of
themselves, they are growing increasingly self-aware and no longer fearful
of society. Family
ties don't always
have to be with our biological relatives. Even though it is still illegal for same-sex couples
to marry in many states across the nation, the
majority of them continue to live together and create bonds akin to marriage. The next stage
of marriage is to
share their love with their offspring.
III.
ANALYSIS
THE LEGAL IMPEDIMENTS IN LGBTQ ADOPTION RIGHTS
1.
HINDU ADOPTION
AND MAINTENANCE ACT 1956
The only
codified personal law in India that addresses the ability to adopt, the ability
to give adoption, and the
consequences of adoption is the Hindu Adoption and Maintenance Act, 1956 (HAMA). The HAMA's Sections 77,
88, and 119, when read together, address the eligibility
and terms of adoption for Hindu men
and women. The terms "husband" and "wife," as used
explicitly in Sections 7 and 8 of
the HAMA, suggest that adoption of children is restricted to heterosexual couples. The act says nothing about
"third gender" adoption rights. A cursory reading of the Act makes it clear that it is based on a binary conception of gender. HAMA permits LGBTQ
adoptions from single
parents.
Adoption by a single parent has distinct legal implications,
nevertheless. Adopting a child from abroad
could, in a sense, legally require a single parent to provide for the needs of
the adopted child. Additionally, one of the spouses of a same-sex
couple would have to give up their adoption rights
in a single-parent adoption. Additionally, HAMA is ill-equipped to deal with the complications that arise from transgender
patients' sex-reassignment surgery. Consider a scenario in which a woman adopts a
girl, and the adopted child and the prospective parent
are not 21 years apart in age. Should this woman undergo
sex-reassignment surgery and transform into a boy. Therefore, it violates HAMA's Section
11, which stipulates that there must be a minimum of 21
years of separation between the father and the adopted
daughter. Additionally, Section
5 (1), which specifies that
7 The Hindu
Adoption and Maintenance Act, 1956, s. 7
8 The Hindu
Adoption and Maintenance Act, 1956, s. 8
9 The Hindu
Adoption and Maintenance Act, 1956, s. 11
"any adoption made in contravention of the said
provisions shall be void," declares that the adoption
is null and void. The explanation above makes it clear that the adoption
provisions of the HAMA are
discriminatory and cause various legal barriers for LGBTQ individuals and couples seeking to adopt.
2.
JUVENILE JUSTICE
CARE AND PROTECTION ACT 2000
The first secular law addressing adoption was the Juvenile Justice (Care
and Protection of Children)
Act of 2000. It acknowledges adoption as a means of assisting in the child's
rehabilitation. The Juvenile
Justice (Care and Protection of Children) Act, 2015 (JJ Act, 2015) eliminated
the previous Act.The JJ Act of 2015 established a comprehensive framework
for adoption. It describes adoption
as the legal procedure by which an adopted child becomes the lawful child
of his adoptive parents, with
all the rights, obligations, and privileges associated with a biological child,
and is permanently separated from his biological parents.
10
This statute established the Central Adoption Resource Authority (CARA),
which serves as the supreme authority
for all secular intra- and inter-national adoption. The Guidelines Governing Adoption of Children, 2015 have been
superseded by the Adoption Regulations 2017, which are formulated under section 68(c) of the JJ Act 2015. The Adoption
Regulation 2017's Section 5 outlines the requirements for potential adoptive
parents to be eligible. Adoption
is permitted under
Section 5(2) regardless of marital status, meaning that single parents
may adopt, but married couples must obtain the consent of both
spouses in order to adopt.
Since same-sex weddings are not recognized in India, same-sex couples
would essentially be classified as
unmarried couples. Recently, CARA has regulated the possibility of live-in
partners becoming potential adoptive parents on an individual basis. 11
It is safe to assume
that the authorities would reject the request of same-sex couples,
nevertheless, as there is no explicit
directive about whether or not they can profit
from this circular.
Additionally, many documents
under the 2017 Adoption Regulations employ the terms "prospective adoptive mother" and "prospective
adoptive father" in the case of a "couple," indicating that
homosexual
10 The Juvenile
Justice (Care and Protection of Children) Act, 2015, § 2 (2)
11 Central Adoption Resource Authority, Circular, “Reconsideration of
decision to allow single PAPs in live- inrelationship”, CARA-ICA012/3/2017
couples are not permitted to adopt together. There is ambiguity surrounding third gender
adoption rights because the
online Registration form for prospective parents under Schedule VI only includes
sections for male and female applicants, and neither the form nor the adoption
regulations address the
third gender. Complexities akin to those found in the HAMA may potentially
emerge in the JJ Act from a
prospective parent's sex-reassignment operation. The Law Commission of India has strongly
recommended in their consultation paper
that the term "parents" be used in place of "mother and father" in
adoption provisions under the JJ Act and adoption regulations in order to enable individuals of all gender identities to benefit from the Act and overcome
its discriminatory nature.
According to the Apex Court,
constitutional morality encompasses a wide range of values,
such as fostering an open and pluralistic
society, and goes beyond simply adhering to the fundamental tenets
of constitutionalism or reading the constitution literally. The Court also issued a warning to other Indian
courts, warning them against conflating popular mood at a certain
period of time with constitutional morality. It is important
to keep in mind that the Indian constitution is a living, breathing
document that can change to meet the demands of the times and reflect
social advancements.
The historic cases of Navtej Singh Johar (Supra) and NALSA (Supra)
demonstrate how society has evolved
to embrace homosexuality. Equal adoption rights must not be denied to the LGBTQ community under the guise of societal
morality. The constitutional court owes it to the LGBTQ community to defend their right to adoption given the
discriminatory nature of India's adoption regulations.
INVOCATION ARTICLE 14 OF THE INDIAN CONSTITUTION
"The State shall not deny to any person equality
before the law or
the equal protection of the laws within
the territory of India," reads Article 14 of the Indian Constitution. In India,
equality entails that each individual should have equal
access to all freedoms and rights. The Supreme Court's erudite judges ruled in NALSA v. Union of India36 that the term
"person" in Article 14 of
the Constitution includes Hijaras and
transgender people, and as such, they are entitled to the same civil and citizenship rights as other citizens of this nation.
12 As a result, the LGBTQ community
12 (2014) 5 SCC 438
is
entitled to equal civil rights, such as the ability to adopt children and be
married. "The primary task of the Court to achieve substantive equality is to determine whether
the provision contributes to the subordination of a disadvantaged group of individuals," the Apex Court declared in Joseph Shine Supra. It is clear from examining
India's adoption laws that there is no substantive equality and that certain
regulations further marginalize LGBTQ individuals and couples.
The adoption laws do not clearly distinguish between heterosexual and homosexual couples
when it comes to adoption
rights; that is, heterosexual couples are granted joint adoption rights while homosexual couples are not. This is
evident when we examine the adoption
laws from the perspective of the test of reasonable classification 3. Furthermore, the state's intentions behind this designation are not at all clear. One could argue that this designation is appropriate before
to 2018 because homosexuality was illegal.
Nonetheless, this line of reasoning is inappropriate in the current
situation. Studies have also demonstrated that homosexuality is just as natural as heterosexuality
and that homosexual parents can raise their children to be just like
heterosexual parents without having
any negative effects on gender norms, sexual orientation, or other aspects of life. 13 Therefore, there
is no justification for the LGBTQ community's exclusion, and doing so would be against the fundamental right to
equality guaranteed by Article 14 of the Constitution. Thus, LGBTQ persons and couples should
have equal rights to
adoption.
"The State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them," reads
Article 15 (1) of the Indian Constitution. In NALSA Supra, the Supreme Court ruled that
discrimination based on sexual orientation and gender identity must be included in the larger definition of
"sex." Adoption laws in
India discriminate against the LGBTQ
people on the basis of their sexual orientation and gender identity. Due to the
fact that this discrimination is based on and reinforces negative
preconceptions about the LGBTQ community, which is defined by the
category of "sex" that is
prohibited by Article 15(1), it will not withstand constitutional scrutiny.
Thus, Article 15 of the Constitution has been clearly violated. It's
important to remember that Article
15's goal is to provide protection to individuals who have historically faced
disadvantages in their political, social, or economic
lives. There is ample evidence to demonstrate the extent of
13 Charlotte J. Patterson, “Lesbian & Gay Parenting, American Psychological Association”, 2005
prejudice experienced by members of the LGBTQ community. In light of
this, adoption laws in India need to be changed to guarantee equitable adoption rights for people of all gender
identities.
"No person shall be deprived of his life or
personal liberty except according to the procedure established by law," reads Article 21 of the Indian
Constitution. The Indian constitution's core is found in Article 21, which forbids the State from removing any rights guaranteed by it.
the Supreme Court ruled in the NALSA case. Article 21 safeguards
individual liberty, privacy rights, and the dignity
of human life. Family is seen as the fundamental social unit and an essential
part of an individual's existence, and everyone has the right to reside
with the family of their choosing.
The State has a duty to defend its citizens' rights to a family. It is
arguable that having children is one of the things
that gives a person's life purpose and that children
are an essential component of the
family. Adoption is one of the techniques used by individuals and couples who
are unable to produce children of
their own. In another ruling, the Bombay High Court maintained that the ability
to adopt is a component
of the right to life guaranteed by Article 21.
In M/S Shabnam Hashmi v. Union of India & Ors14, the
Supreme Court acknowledged that the right
to adopt could be elevated to a basic right at the appropriate moment in the
future, but it declined to do so and
instead highlighted the circumstances that existed at the time. Given the current situation and the fact that Indian courts
are moving toward
a more right-based interpretation of the law, one could argue that the
time has come to recognize adoption rights as fundamental rights. The right to privacy is considered
a basic right by the Apex Court in the case of Justice Puttuswamy15. The Court goes on to say that
maintaining intimate relationships, the sanctity of marriage, family life, procreation, the home, and sexual orientation are all included
in the definition of privacy.
Because the right to adopt is strongly
related to the purity of the LGBTQ community's family
life, denying the LGBTQ community this right would amount to interfering with their right
to private. As the explanation above makes clear,
the "right to adopt" is a crucial
component of the right
to life, and denying the LGBTQ community this right would be against Article 21
of the Constitution.
14 M/S Shabnam
Hashmi vs Union of India & Ors, (2014) 4 SCC 1
15 (2018) 1 SCC 791
BEST INTEREST OF THE CHILD
In order to
ensure that a child's basic needs, identity, social well-being, and physical,
emotional, and intellectual
development are met, Section 2(9) of the JJ Act, 2015 states that any decision made regarding the child must be made with
the child's best interests in mind. It is crucial for a child's harmonious development to grow up in a family setting
where there is joy, love, and understanding.
The child's initial socialization is the responsibility of the family. Given
the significance of family, UNICEF
declares that "An appropriate
alternative family environment should be sought in preference to institutional care, which should
be used only as a last resort
and as a temporary measure
for children who cannot be raised by their own families." Therefore, before placing orphaned, abandoned, and surrendered children
in a child care facility, every avenue for securing a home must be investigated
in the kid's best interest. Research has additionally demonstrated that homosexual parents are just as capable of
raising a child as their heterosexual counterparts.
Joint adoption rights are also crucial since they allow both parents to be held accountable for a child's upbringing and
safety. Preventing members of the LGBTQ community from being eligible
to adopt children
will therefore deprive
them of possible adoptive parents,
and this cannot be justified
on the grounds of the child's best interests. Allowing
the LGBTQ community to adopt children will
undoubtedly have a favorable impact on the annual adoption rate.
IV.
CONCLUSION
Article 14, Article 15, and Article
21 of the Indian Constitution are violated by the discriminatory adoption laws in India. As Indian citizens, LGBTQ couples and
individuals should have equal rights
in the social, political, and economic spheres. We can therefore contend that
the moment has come to recognize the
right to adopt as a basic right, as evidenced by the Supreme Court's decision
to adopt a more right-based approach to interpreting statutes. The right to live is
inextricably linked to the right to procreate. If anyone is capable of caring for children, they should all have equal rights when it comes to
adoption. Equal adoption rights would encourage adoption and provide more orphans
with a secure environment in which to grow; as a result,
they would be in
the best interests of the kid. It is imperative that the Indian parliament take
action to guarantee the LGBTQ
community's equal adoption rights, just like the parliament of the United
Kingdom, or that the judiciary
guarantee the LGBTQ
community's equal adoption
rights, just like the
judiciaries of the United States
and South Africa.
Encouraging LGBTQ individuals and couples to adopt will advance the values
entrenched in the Indian Constitution.
V.
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Article Information
EVALUATION OF THE EVOLUTION OF HINDU ADOPTION LAWS IN INDIA: ADDRESSING SOCIETAL CHALLENGES FACED BY THE LGBTQIA+ COMMUNITY
Authors: SHWETA SABUJI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/12
- Issue 7
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