Adoption in Hindu Law and Muslim Law

INTRODUCTION

The concept of adoption is not a new concept rather the custom and practice of adoption is continuing from the past. The dictionary meaning of the term ‘adoption’ is the act of taking and rearing of the child of other’s parents as one’s own child. Attitudes and laws regarding adoption vary greatly. Not all cultures have the concept of adoption. One of the biggest examples is Muslim law where adoption is not recognised.

This paper deals with the motivation of the parents to adopt a child and various aspects relating to adoption under the Hindu law and the Muslim law. Over the time steps have been taken to improve the status of women but still there exist a significant difference. In this paper, there is focus on this issue especially under Hindu law with the help of two cases.

WHY TO ADOPT?

Adoption is the institutionalized practice through which an individual belonging by birth to one kinship group acquires new kinship ties that are socially and legally defines as equivalent to the congenital ties. These new ties supersede the old ones either wholly or in part. [1]

Child adoption in India has been a prevalent social practice from ancient times but with a different perspective. Generally the view is that when an individual completely loses his capability to conceive a child, then under that circumstance a child is being adopted.

In the past, a childless couple would ‘adopt’ a child from one’s own family. But now, it’s not like this; adoption is not limited to relatives’ children.

The people who adopt, their motives vary. The primary consideration was the interest of the childless adoptive parents, namely, the perpetuation of family name and lineage, protection in old age, performance of death rites and salvation of the adoptive parents. [2] Other motivations to adopt could be a desire to give a home to a child who needs one, wanting a child of the other gender, or for the welfare of the destitute and abandon child. [3]

The adoption should be considered as a specialised child welfare service which helps in meeting the needs and promoting the “best interests” of the child without a permanent home or family able to provide care. [4]

Now, the trend is changing a lot. It is being noted that the single parent adoptions are also being done in urban cities.

POSITION OF ADOPTION IN THE HINDU LAW

There was a lot of preference given to the males in the earlier times. Now with the time, the perception is also changing and new laws are developing. In India adoption is now regulated by the introduction of the Hindu Adoptions and Maintenance Act, 1956.

Various radical changes in the old Hindu law as to the persons who could be adopted were brought in the new HAMA, 1956. Under the Hindu law, the adoption of child means that the child is totally uprooted from the natural family and transplanted in the new family. [5]

Prior to the Hindu Adoptions and Maintenance Act, 1956 only the adoption of son was recognised but after the commencement of this Act, daughter’s adoption is also legally recognised. This has been considered the major change. Now, the more people are coming forward to adopt a girl child. In 2004, more than 40,000 children were adopted worldwide. [6]

Moreover, earlier only male Hindus had the right to adopt or to give in adoption. But now it has been recognised that even Hindu women can also adopt or give in adoption. [7]

At the same time, the Hindu law provides for very stringent conditions for adoption of a child. Like adoption of the child of the same gender is not allowed where an adoptive father or mother already have a child living at that time and also adoptive parents must not have a Hindu son, a grandson or even a great-grandson alive. Likewise, a person who has a Hindu daughter or son’s daughter cannot adopt a daughter.

One major area of adoption is related with the property i.e. after the adoption parents’ rights with regard to disposing of property are not affected. This point is being proved in a recent case of Ugre Gowda vs. Nagegowda. [8] In this case, Nagegowda (petitioner and adopted son of defendant no. 1) filed a suit against the defendant no. 1 that the gift deed executed by the defendant no. 1 to the defendant no. 2 was null and void and without the authority of law. But it was held that, “an adoption of a son or a daughter does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer or by will.” [9]

POSITION OF ADOPTION IN THE MUSLIM LAW

The biggest and the most important difference between the Hindu law and the Muslim law is that the latter does not recognise adoption. Muslim Law takes into account the concept of acknowledgement. The paternity of the child cannot be established by a Muslim if he adopts a child of whom he is not the actual father. [10] In Mohammed Allahabad Khan v. Mohammad Ismail Khan, [11] it was held that there is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System and the acknowledgement of parentage is only a substitute for adoption.

“Adoption is not prohibited, but it is an act towards which religion is indifferent.” [12]

Before the Shariat Act, 1937, adoption among some Muslims was recognised by customs. So, a Muslim never acknowledges another’s child as his own and the child is considered to be the direct descendent by legitimate means. [13] If an adoption takes place, then an adopted child retains his or her own biological family name (surname) and does not change his or her name to match that of the adoptive family.

In all sense, unlike the Hindu law, adoptive parents are not given the status of the natural parents.

GENDER BIAS

Though after the enactment of the Act (HAMA), it has been noted that the gender discrimination has been eliminated but in actual sense it still exists. A married female cannot adopt, not even with the husband’s consent, unless her husband dies or suffers from any disability or renounces the world or so. [14] On the other hand, a husband may adopt with the consent of the wife. [15] To clearly show the gender discrimination, two cases have been referred.

Malti Roy Choudhary vs. Sudhindranath Majumdar [16]

In this case, the appellant, Malti had been adopted by the deceased mother. After her mother’s death, she became the sole heiress and applied for estates and properties left behind by her mother. There were a lot of evidences have been presented by the appellant like proof of the ceremony of adoption, natural parents handing over the child to the adoptive mother in the presence of her husband and the priest; acknowledgement through school records; Malti being performed the funeral ceremony of her mother. But however, the Court did not accept the argument and it was held that, “under the provisions of the act, the husband alone can adopt, but here, it is an admitted position that Malti was adopted by the mother Tripti not by the father and thereby, rejected her appeal.”

Brajendra Singh versus State of Madhya Pradesh [17]

This is a very recent case. The case reflects prevalent social norms and values in the context of the position of a woman in society, intersecting with marriage, patriarchy and adoption by a Hindu woman owning agricultural land.  Mishri Bai, who was a disabled woman, was left by her husband soon after their marriage and started living with her parents who gave her a piece of land for her maintenance. Thereafter, Mishri Bai adopted a son, Brajendra Singh. After a few years of adoption, her husband died. Then a case against Mishri Bai was filed stating that her land holding was more than the prescribed limit and the adoption was not valid. Before the death of Mishri Bai, she executed a will for her adopted, also mentioning the factum of adoption. The son contented that there was dissolution of marriage between them since they were not living together. But the Supreme Court held that there was no dissolution and she was not the adoptive mother in her own right; she was the adoptive mother being the wife of her deceased husband to whom the adoption was made. So, under the Act, Mishri Bai did not have the capacity to adopt. But showing sympathy towards the son, he was entitled to retain the property as per Mishri Bai’s will but the extra land has been given to the State.

“Thus while conceding that a wife has no right to adopt but only to give consent, and that it is the husband who is to take decision and initiative, the Court yet states that gender discrimination in the matter of adoption which prevailed prior to the Act has been eliminated. One really wonders whether the gender discrimination has indeed been eliminated even while the bias in the statute and the Courts own remarks and judgement contradict this.” [18]

Under Muslim Law, there also exists a lot of gender biasness. The child is considered to be the legitimate child if he/she is acknowledged by the father. The emphasis here is on the male only. If the father fails to prove the acknowledgement of his son, then he cannot be regarded as the natural son. [19]

Overall, there is gender bias everywhere in the world, especially, in the developing countries. It is not limited to adoption only, gender discrimination is seen in every sphere be it divorce, guardianship, working issues, education, etc.

NEED FOR A UNIFORM CIVIL CODE FOR ADOPTION

The Hindu Adoptions and Maintenance Act, 1956 is limited to only Hindus to adopt. But still there are many more children left who are orphaned, abandoned. A proposed uniform law of adoption, applicable to all religious communities, had been introduced in 1972, but dropped due to opposition from the Muslim communities. [20]

“Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family.” [21]

Therefore, if poor, destitute, abandoned children are to be rehabilitated in a legal and safe manner, then there is a great need for a uniform adoption law applicable to people belonging to all religions. [22]

CONCLUSION

It is clear that the only statute which recognises adoption is the Hindu Adoptions and Maintenance Act, 1956. This Act has been departed from the earlier law in liberalise way. But at the same time, this Act has some loopholes also. This Act only applies to Hindus and there is no such specific law governing adoption in any other religions.

Though the Act has tried to eradicate gender biasness but still not able to do that fully. Adoption should be with the consent of both the parents, both parents should equally participate; otherwise it will be the child only who is going to suffer. The children are vulnerable and totally dependent on the adults who are making their life decisions, and hence safeguarding their rights and interests is of prime importance. Adoption not only fulfils the desire of the parenthood on part of the adoptive parents but also provides a family to the child.

Other aspect could be that adoption in a sense helps in population control. All children are God gifted. So, there should not be any difference between one’s own child and the other’s child. Rather than conceiving more number of children, one can adopt which will ultimately serve two purposes: population control and most important is child welfare.

There are so many children who don’t have parents, homes. By adopting them, they will be able to entail the proper education, relations, etc. The only thing needs to be taken care that the child is getting in the right hands. This can be ensured by checking the adoptive family background, parents’ marital relationship, attitude for adoption, financial stability, etc.

To ensure the welfare of the children, there needs to be uniform civil code for adoption.

I would conclude the paper by a famous quote by Joyce Maguire Pavao-

“Adoption is not about finding children for families, it’s about finding families for children.”