India is known for its diversity and respect for every religion in the way of
having personal laws for different religions. Even though we believe in
respecting sentiments and personal laws of every religion, not at the cost of
causing inequality in society. This research paper will specifically focus on
the concern of adoption laws in India and whether we need uniformity in law in
the matter of adoptions.
To understand whether India needs UCC or not in the aspect of adoption, we will
have to analyse what is wrong happening in the current setup of the adoption
system in India. For this purpose, let us briefly discuss the adoption laws
under different personal laws in India.
Hindu Adoption and Maintenance Act, 1956
First let us discuss the HAMA,1956 which governs the adoptions of Hindus.
Initially, HAMA 1956 was very patriarchal in nature as it placed women in an
inferior position when it came to adopting and transferring children. The
Personal Laws (Amendment) Act of 2010 somewhat altered the law's position on
this issue. but even today there is an element of arbitrariness in the HAMA
which eventually becomes a Hindrance to the welfare of children.
For Instance, section 11 mentions conditions for a valid adoption. Section 11
(1) mentions that a person cannot adopt a boy if they are currently having a
son, grandson, or even great-grandson and the same analogy applies to the
adoption of a daughter. As a result, a person's capacity to adopt (and be
adopted) is confined within the parameters of the law.
Indian Inhabitants v. Unknown
, a case in which this statute is
inconsistent to juvenile justice act of 2000, which does not impose such a ban
on adoption, presented this issue before the Bombay high court. In this case,
the court recognized a discrepancy between the two Acts and applied the
interpretive strategy of harmonious construction to settle it. Justice D.Y
Chandrachud held that if all requirements under the juvenile justice act 2000
are fulfilled then there will be no such bar. This judgment shows us how even
the judiciary is taking a turn toward a secular law that applies to everyone
rather than sticking to the personal law.
Adoption under Muslim Law
Now let us discuss the adoption under Muslim law. Under Muslim law, there is no
concept of adoption. There exists a concept of Kafala
Islam which is
closest to the concept of adoption and it means sponsorship. Such children under
Muslim law will not get the rights that biological children get under the law.
For instance, he cannot inherit the property of the adoptive parents. Due to
this unavailability of law about adoption in not only Muslim but also Parsi,
Jews, and Christians, people adopt as per the Guardians and wards act,1890 which
is secular law. This shows us how even other religions rely on secular law when
it comes to adoption.
In the case of Shabnam Hashmi Vs Union of India and Others
, there was
a writ filed by the petitioner under article 32 to seek clarification from the
supreme court on the issue of adoption by persons irrespective of religion. In
this case, SC upheld the notion that even Muslims come under the ambit of the
Juvenile Justice (Care and Protection of Children) Act, 2000 which is secular
law. This case law can be seen as a tilt of the judiciary towards a secular law
that applies to all the citizens of our country irrespective of their religion.
We discussed about the concept of adoption in different religions and how there
exist several drawbacks when it comes to the nature of adoption under various
personal laws. Now that we have discussed the problem, let us conclude this
research paper by reaching a solution. As discussed above, the clear path and
solution for the welfare of a child concerning adoption is the Uniform Civil
The uniform civil code comes under article 44 of the Indian Constitution and its
objective is to have a law that applies to every citizen of India irrespective
of their religion. It is not practical to straight away apply a uniform civil
code in all aspects as it would result in a backlash by various communities but
applying it to the law of adoption can be a small step towards the larger goal.
When we talk about adoption, the welfare of the child is of utmost importance,
therefore to substantiate the argument of the need for a uniform civil code, we
must discuss the benefits that it brings when it comes to the children in
The first and foremost benefit is that the number of adoptions will increase by
a significant number since the process will become easier and the same for
everyone. Currently, some religions do not have an adoption law per se,
therefore once all such religions come under a uniform law, adoption will be
Secondly, the restrictions which exist in the personal laws which are arbitrary
and unreasonable in nature just because of the involvement of religion in it can
be removed from secular law, and such uniform law will have only one objective
and that is the welfare of the child. Another advantage is that it will lessen
the ill practices which take place in the name of adoption currently there is a
lack of proper checks and balances as there is a different law for different
religions and once a uniform law comes then the monitoring by the state about
the welfare of children will be more efficient.
This research shows us Uniform civil code in the aspect of adoption can be a
game changer and bring various benefits and be very conducive to the welfare of
the children which is of the utmost importance when it comes to adoption.
- Indian Adoption Petition No.31 Of 2009
- Writ Petition (Civil) No. 470 Of 2005