Sunday, February 28, 2010

Adoption Rights of non-Hindus and Constitutionality of Personal Laws

Shabnam Hashmi has filed a PIL in the Supreme Court challenging 'a law which denies a child a right to inheritance if s/he is adopted by non-Hindu parents.' The case is surely going to be contentious, given its implications for personal laws.

I am grateful to a reader for drawing my attention to the case of Manuel Theodore, where 'in the absence of legislation', the Bombay High Court recognised the right of a Christian parent to adopt a destitute and orphaned child. Justice Rebello interpreted Article 21 to hold that 'the right of the child to be adopted and consequently to have a home, a name and a nationality has to be considered as part of his right to life.' [para 19] What is more interesting, to my mind, is that the Court goes on to recognise a right to adopt on part of the parents flowing from Article 14:

In so far as the adoptive parents are concerned, it flows from the right of such parents from Article 14 of the Constitution of India even amongst those couples whose belief or customs do not provide for adoption. They cannot be discriminated from adopting a child without the State being accused of arbitrariness and infracting Article 14 of the Constitution. Once a couple is permitted under the Guardians and Wards Act of being capable of taking a child in guardianship the consequence must follow that the legal guardian can move the Court for adoption of the child in order to fulfill the constitutional objective of such a child to have a home, a name and a nationality. The Court no doubt has strayed into the area of personal law in what I may describe as the post adoption stage. Though adoption by itself is a fundamental right of an orphaned, abandoned or destitute child, the legal consequence of being given in adoption will entail application of Family Law or what we term as Personal law. This to my mind will not have the effect on the rights of any citizen to profess his religion guaranteed under Article 25 of the Constitution. The Special Marriage Act is in force. Any citizen of the country can marry under the said Act. Marriages and Divorce of those who marry under the said Act are governed by the said Act. Succession by the Indian Succession Act. People professing different faiths marry under that said Act. The vision of the new millennium must guide our religious leaders. Their broad vision can lead their flock to understand religions, as the founders of Religions would have wanted their followers to follow, love and tolerance must be the cornerstone. Religious teachings must undergo the same interpretative processes much as Judges to through for finding answers to justice social, economic and political. [Para 28]

Without referring to it directly, Bombay High Court appears to have overruled its decision in Narasu Appa Mali by holding that:
'the right of such child to be adopted, is not pursuant to any personal law. The right of the child is independent, as a human being, and flows from his right to life as contained in Article 21 of the Constitution. Any eligible parent or parents irrespective of religion can apply to adopt a child. Personal laws, as pointed out earlier, have to meet the test of Part III of the Constitution, if they are to be saved.' [para 30]

But as the discussion in the comment section of this post shows, it is still arguable, Manuel Theodore notwithstanding, that Mali continues to be good law. One hopes that Hashmi's petition will force the Supreme Court to take note of all precedents and arguments on both sides to rule clearly on the constitutionality of personal laws.

4 comments:

Farrah said...

I'm curious about which law is meant by ' a law which denies a child a right to inheritance if s/he is adopted by non-Hindu parents'?

Since only Hindu personal law recognises adoptions, I would have thought that a non-Hindu would *have* to adopt under the S 40(6)Juvenile Justice Act 2000.

Would the inheritance rights of such a child be governed by a personal law: either hers or that of her parents? If so, the child might not inherit if she is not of the same religion as her adoptive parents (as this is the position under some personal laws). More fundamentally, the personal laws wouldn't recognise the child as the child of the adoptive parents!

But if we take cases like Sarla Mudgal as authorities for the proposition that relationships (e.g. marriages, adoptions) ought to be governed or dissolved by the law under which they were created, then it seems unlikely that the inheritance rights of such a child would be governed by a personal law. More likely the Indian Succession Act...?

Tarunabh Khaitan said...
This comment has been removed by the author.
Tarunabh Khaitan said...

thanks Farrah. your post raises very pertinent issues. a reader has pointed out the case of In the matter of Payal decided by the Bombay High Court last year, which touches upon some of the issues you raise.

gautam said...

I suppose we should also be expectant of a discussion by the Supreme Court on the Kerala High Courts ruling in saumya ann thomas that sought to bypass the rule of inapplicability of fundamental rights to personal laws by creating a distinction between statutory created and customary personal laws. The Court in the case held that the protection of fundamental could not be ruled out when the legislature was entering the realm of creating personal laws, as opposed to merely codification- such as the hindu marriage act for example-
Therefore if the legislature were to say create new rules that could infact be included within the ambit of a personal law, it could be subject to the same degree of scrutiny as ordinary laws of the law.

given that the PIL before the Apex Court by Shabhnam Hashmi deals with a similar situation, it might be prudent for the Court to deliberate on the reasoning of the Kearala High Court.