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.
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