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“Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our larger purpose of reducing inequality and ensuring social justice”[1]
Adoption is a process where parent-child relationships between persons who are not related by birth are established and it is willful. There are different existing legal frameworks of adoption in India and among them is the Guardianship and wards act, 1890. This law has its extent of applicability in the cases of adoptions. This act applies to children without any basis on caste, religion and race. It is a secular law where it applies to all citizens irrespective of their religion. It not only guides the people from the Hindu religion but applies to all Non- Hindus. Islam does not recognize adoption and thus have restrictions on the same. So, unlike Hindu Adoption and maintenance act, 1956 this act governs adoption proceedings concerning Muslims, Christians and Parsis where they do not have an act that governs adoption under their law.
The Guardians and Wards Act, 1890, cannot be taken as a sole legislative source for the adoption of a child. It only permits the association of care for the minor for a limited period and to a certain age. This is a secular law and all citizens can approach this law irrespective of their religion. The Act does not guarantee complete adoption but allows Guardianship, and thus, makes the child as a ward and the interested couple their guardian. This act does not provide to the child the same status as a child born biologically to the family like it was given under the Hindu Maintenance and Adoption act.
Adoption is a legal affiliation and hence the parties have to approach the court under the Guardianship and wards act. Adoption under Muslim, Christian and Parsi laws can seek this act for legal adoption. However, an adoption can take place from an orphanage/Children’s home after obtaining permission from the competent court. In Pakistan, adoption is formalized only when a guardian court issues a decree or a guardianship certificate to a person under the Guardian and Wards Act, 1890.[2]
The law relating to guardians and wards and the relationship between them is contained in the Guardians and Wards Act, 1890. It lays down that father’s right is a priority and no other person can be appointed when the father is fit to take care of the child. In the case of PT Chathu Chettiar vs. VKK Kanaran[3], it was observed that if the father is alive and if he is not unfit in any manner as per law to be the natural guardian, and then the mother cannot claim to be the guardian of the minor. The Guardian Wards Act, 1890 is a non-religious universal law regarding the guardianship of a child and applies to all India except the state of Jammu and Kashmir.
Important facts of Adoption under this Act
- Under the Guardianship and Wards Act, the parents who adopt a child will get guardianship status, but the adopted child does not automatically get the right of inheritance.
- The guardians need to provide an investment plan for their child and also a certain amount of money in the name of the child for their future
- Under this act, the relationship between the guardian and the ward is established respectively.
- When the child turns 21 years of age, they are no longer wards and they are assumed to be individual identities.
How does it work?
A person gets guardianship when a person is appointed under the Guardianship and wards Act to make decisions on behalf of another person who cannot make decisions and who lacks the decision-making capacity due to any disability. The Guardians and Wards Act, 1890 was a law that superseded all other laws regarding the same. It was given under the act that any child who has not attained the age of 18 was considered to be a minor. So those children are to be taken care of by someone and hence the court appoints a guardian. Authority may be appointed by the court and they will decide on who would take place as the child’s guardian. The person who is willing to take care of the child under himself will make an application or may apply to act as a guardian. The application should contain all the details about the person willing to be a guardian that includes his interests as to why he/she is taking the child under their care and protection. These are the preliminary steps that have to be fulfilled.
Then the court will admit the application after a reasonable process. The court will look into the evidence produced before the court. After this process, the court decides on the case with its discretion. This act does not work according to other acts for adoption. Under this act, in case a minor has properties attached with him, then those properties can have more than one guardian. In all circumstances, the courts will give importance to the interest and welfare of the minor child[4]. The minor’s preference will also be taken into consideration. Section 13 of the Hindu Guardianship and Minorities Act of 1956[5] perfectly grabs the essence and purpose of the act which says that all measures taken by the guardian and any judgment rendered by the Court must be for the welfare of the child. The details regarding his parent’s death, his age, and under what circumstances he requires a guardian may be analyzed on a case to case basis.
Each religion which includes Christians, Muslims and the Parsis has a different process of adoption. They are not governed by a uniform adoption law in India.
HINDU MINORITY AND GUARDIANSHIP ACT
The GAWA only acts as a replacement with restricted powers. The Hindu Guardianship and Minorities Act were established after the Guardians and Ward Act of 1890 (GWA) to give further powers and to and provide better rights and protection for children. This law was also approved to define rights, obligations, relations between adults and minors. The act is designed with sections like Section 4 (b) of the Minority and Guardianship Act, where a guardian is defined as a person who has attained the age of 18 and is adequately caring for a minor and minor’s property and as well as his own. Therefore this act was created to improve the existing act.
This law was also given effect to bridge the gender discrimination that existed in society. The law commission report states that the parliament passed the Hindu Guardianship and Minorities Act when the adoption of daughters was not recognized by any other law including the Hindu law and the Hindu Adoption and Maintenance Act. Initially, the mother was only given the right after the father. Over time, society’s view has developed and many legal steps have been taken for the empowerment of women in terms of gender and sex ratio.
A landmark ruling was made in the case of Ms Githa Hariharan vs Reserve Bank of India[6]. In this case an educated and working mother wanted her five-year-old son to be nominated for her investments, but in the paperwork, she had to disclose the father’s name. The district court rejected her claim according to Section 11 of the Guardians and Ward Act of 1890. Full details of the child’s relations have to be disclosed but she was unwilling to do so.
This case went for an appeal and the court gave the reasoning to uphold this ruling that even if the mother is not married, the father of the child could have any interest in the child. But the Supreme annulled this sentence by bringing forward two fundamental rules. In this case, the couple separated and the mother was the child’s guardian.
- Interests of the child are paramount,
- A mother can be considered a guardian
- The woman has a fundamental right to conceal the identity of the father for her privacy reasons
The court of law held that without any discrimination, both parents have to be treated equally for guardianship and the word “after” in Hindu minority law and guardianship should not make the mother’s position secondary by giving her less importance. In this case, the child’s mother obtained the same rights in the case of guardianship. The interpretation of the word “after” has been clarified and has been changed to “in the absence of the husband”. Now, the position of the mother is never questioned and they are treated equally on par.
This judgment will do some good and will safeguard the rights of single mothers or the illegitimate child that the Guardianship Law had mentioned. This will also make the society accept and will also encourage adoption by independent and single women in India. A child will get proper care and protection and he will have a bright future and it also improves the social life of the parents.
[1] National Policy for Welfare of Children in India
[2] NAQIR IQBAL, SC takes up the issue of deserted children’s adoption, DAWN, Islamabad, April 18, 2014
Available at < http://www.dawn.com/news/1100655>
[3] AIR 1984 Ker 118
[4] Adoption: Under Hindu, Muslim, Christian and Parsi Laws, Legal Service India, available at http://www.legalserviceindia.com/articles/hmcp_adopt.htm (last visited on Sept. 14, 2013).
[5] https://indiankanoon.org/doc/136612392/
[6] AIR 1999, 2 SCC 228
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