Paras Ahuja

| @ | December 14,2019

[dropcap]T[/dropcap]HE Hindu Adoption and Maintenance Act, 1956 (hereinafter, HAMA) has been under several challenges since its enactment. A major criticism was the patriarchal tenor that ran through the Act and placed women at an inferior position as regards the taking and giving of children for adoption. This was addressed and requisite amendments were made by The Personal Laws (Amendment) Act, 2010. However, the Act has still not been cleansed of some arbitrary provisions. A prime example is a restriction that Section 11, HAMA places.

 

The arbitrariness of Section 11

 

Section 11 provides for a few conditions that are required to be mandatorily complied with for a valid adoption. Clauses (a) and (b) of the this provides that no person can adopt a son if they already have a son/daughter, or a son’s son/daughter’s daughter, or a son’s son’s son/daughter’s daughter’s daughter living at the time of the adoption. This leads the curtailment of the right of a person to adopt (and be adopted) within the contours of the law.

The operation of this provision was challenged before the Bombay High Court in Indian Inhabitants v. Unknown, as it came into conflict with the Juvenile Justice Act, 2000 which provided for no such gender-specific embargo on the adoptive capacity of a person. Section 41(6)(b) of the Juvenile Justice Act lifts the restriction under Section 11, HAMA and allows for the adoption, irrespective of gender. The court here acknowledged the conflict between the two Acts and used the interpretative tool of harmonious construction to resolve the same. It was held that no restriction of such nature would be applicable if the conditions mentioned under Chapter IV of the Juvenile Justice Act were satisfied; however, if the child was not of the description as provided under Chapter IV [Section 41(5)], the conditions of Section 11, HAMA would operate.

Though the judgement restricted the scope for the applicability of gender specific-adoption under Section 11, it provided a tacit recognition to its constitutionality by allowing it to operate in some specific circumstances.

This article attempts to highlight and establish the unconstitutional nature of Section 11(a), (b), HAMA.

 

Section 11 sets a ceiling on adoptions

 

What might appear to be a mere restriction on the choice of the gender while making an adoption, actually sets a ceiling on the maximum number of adoptions a person can make. Considering that HAMA recognises only two genders (male and female), the maximum number of adoptions that can be made then shrinks to two. This is massively restrictive of the adoptive capacity of a person. If a person, therefore, has a son and a granddaughter (son’s daughter), they are barred from making any adoption under HAMA.

 

An impediment to children’s welfare, especially girls

 

The Constitution of India under Article 39(f) casts an obligation on the state to secure facilities and opportunities for the children to develop themselves. Moreover, the Amending Act 45 of 1962, which revolutionised the adoption system under HAMA, also refers to the welfare of children as its main object. According to the United Nations Children’s Fund (UNICEF), India is home to 29.6 million orphaned and abandoned children. A study by an international children’s charity showed that 4% of India’s child population i.e. 20 million, are orphans. In this context, a restriction on the number of adoptions (a natural consequence of the gender-specific adoption) acts as a major impediment, to achieve the constitutional and legislative object of child welfare.

Besides, patriarchal India’s preference for the male child means that there are a larger number of abandoned girls than boys. Surveys also suggest that abandoned and orphaned girls are more susceptible to physical and mental trauma, due to the societal circumstances (see here, and here). The need for girls to be adopted and empowered is therefore far more urgent. However, those wishing to adopt girls face the Section 11 restriction if they already have a daughter or a granddaughter or a great-granddaughter. There have been several instances where people have wanted to adopt girls, but have faced the challenge of gender-specific adoption under HAMA (here, here, and here). In some cases, the court allows for the adoption of the child meets the requirements of Chapter IV HAMA; if not, the restriction continues to operate.

 

A child has the right to be adopted

 

In the case of In Re Manuel Theodore D’Souza, the Court held that the fundamental right to life of an orphaned, abandoned or a destitute child included their right to be adopted by willing parents and have a home. An extension of this principle would dictate that a restriction on the child’s right to be adopted by a certain class of people, only on the ground of their gender, would be violative of the constitutional mandate of “right to life” under Article 21 and “right against discrimination” under Article 15. As much as the restriction of “gender-specific adoption” impedes the choice of the adoptive parents, it also unduly interferes in the child’s right to be adopted.

The doctrine of manifest arbitrariness, as laid down in the case of Shayara Bano v. Union of India, stipulates that the law can be struck down on grounds of violating Article 14 if it is irrational or capricious. The restriction of gender-specific adoption is arbitrary, as it restricts the adoptive capacity of adoptive parents without catering to any object, purpose or rationale. It must be struck down on that account.

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