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Family Forum / Parenting / Adoption / September 2009MUMBAI: Hindus who have always wanted to adopt a girl even though they already have a daughter can now do just that.
http://timesofindia.indiatimes.com/news/india/Court-gives-Hindus-free-hand-in-ad option/articleshow/5032353.cms Court gives Hindus free hand in adoption Swati Deshpande, TNN 20 September 2009, MUMBAI: Hindus who have always wanted to adopt a girl even though they already have a daughter can now do just that. The Hindu adoption law prohibits same gender adoptions but, in a landmark judgment this week, the Bombay High Court has thrown open the legal doors to allow Hindus adopt a child of the same gender as their existing one. In the verdict, the HC allowed a recent petition by Mumbai-based actor couple (names withheld on request) to be legally declared as adoptive parents of a girl they had taken in as their ward over four years ago under the Juvenile Justice Act. The couple had a two-year-old biological daughter of their own when they sought and were allowed by the court in 2005 to become guardians of a year-old destitute baby girl. Stating that courts must harmonise personal laws with secular legislation, Justice D Y Chandrachud held the Juvenile Justice (Care and Protection of Children) Act of 2000 — a secular law enabling rehabilitation of abandoned children through adoption — would prevail over the Hindu Adoption and Maintenance Act (Hama), a personal law that has placed certain restrictions on adoption. Justice Chandrachud took up the Pathaks’ issue seriously as it “involved the larger issue of encouraging adoption and giving an abandoned child a chance in life’’. He looked closely at adoption laws under their various avtars and at the Indian Constitution as well as the Convention on the Rights of the Child which India had ratified in 1992 before ruling that “adoption is a facet of right to life and that freedom and dignity are the foremost values of governance in civil society and freedom and dignity of the young must count above all’’. This was the first time the court was interpreting provisions of two conflicting legal provisions on adoption; it had a 54-year-old Hindu Adoption Act and the more progressive nine-year-old Juvenile Justice Act, which introduced adoption of abandoned children and gave it a wider platform. The Hindu law places stringent conditions and prohibits adoption of a child of the same gender where an adoptive father or mother already have a child living at that time. For instance, if the adoption is of a daughter the adoptive parent must not have a Hindu daughter or a son’s daughter living at the time of adoption. Conditions are stricter while adopting a son and adoptive parents must not have a Hindu son, a grandson or even a great-grandson alive. The Juvenile Justice Act, a countrywide beneficial social law, came in 2000 and introduced a ‘child-friendly’ approach towards adoption “in the interest of ultimate rehabilitation of a narrow sub-class of children who are orphaned, abandoned or surrendered’’. The HC, after hearing advocate Vishal Kanade for Pathak, held: “Right to life includes rights of parents and of individuals, women and men, who wish to adopt to give meaning to their lives on the one hand and, on the other hand, is the right of abandoned children who are in need of special care and protection.’’ Finally! Nine years after the Juvenile Justice Act, there's some clarity. This is one adopting parents have waited a long time for. HAMA resulted in all kinds of weirdnesses. Julia's two oldest Indian sons, for instance, who are bio-brothers, would have had to be separated. HAMA didn't permit a family to adopt a son if they already had one, or a daughter if they already had one. It's nice to see that India is managing some of its stickier issues. Only recently, it finally removed the law that made gay sex illegal. Now this. Good going! Thanks for posting this. I hadn't seen it. > http://timesofindia.indiatimes.com/news/india/Court-gives-Hindus-free... > [quoted text clipped - 60 lines] > on the other hand, is the right of abandoned children who are in need > of special care and protection.’’ > Finally! Nine years after the Juvenile Justice Act, there's some > clarity. [quoted text clipped - 75 lines] > > on the other hand, is the right of abandoned children who are in need > > of special care and protection.’’ I was amazed to learn there ever was such a bizarre law in the first place. Yes, it's good to know that India is trying to deal with some of these "stickier issues". > > Finally! Nine years after the Juvenile Justice Act, there's some > > clarity. [quoted text clipped - 80 lines] > Yes, it's good to know that India is trying to deal with some of these > "stickier issues". You mean about not adopting a kid of the same gender as one you have? It's because adoption was seen as a way of getting an heir. Sons and daughters have separate religious/ ritual roles in Hinduism. So the idea - I think - was that an adopted son or daughter shouldn't undermine someone already in that role. Because a son's children were in the same lineage, they counted, too. HAMA was never about the adoptee. And until the year 2000, there was no secular adoption code in India. There's a similar thing with marriages. There are separate Marriages Acts for different religions. But there is a secular one, and it's existed for a long time. Somehow, it took 50 years to push one through for adoption. > > > Finally! Nine years after the Juvenile Justice Act, there's some > > > clarity. [quoted text clipped - 88 lines] > undermine someone already in that role. Because a son's children were > in the same lineage, they counted, too. Thanks Rupa. Of course! I should have figured that it was something like that. > HAMA was never about the adoptee. And until the year 2000, there was > no secular adoption code in India. [quoted text clipped - 3 lines] > existed for a long time. Somehow, it took 50 years to push one through > for adoption. Better late than never, indeed. http://www.mid-day.com/news/2009/sep/220909-same-sex-adoption-high-court.htm Same sex adoption was always possible By: Madhusudan Maney 2009-09-22 Even before the Mumbai High Court's landmark judgment, couples could adopt another child of the same sex under the Juvenile Justice Act. But not many knew that The Mumbai High Court's recent judgment, allowing couples to adopt a child even if they have one of the same sex, has left Bangaloreans confused. Such adoptions have always been allowed under the Juvenile Justice Act and the Guardian Act. Mary Paul, director of Vathsalya Charitable Trust, an adoption agency, said, "In Karnataka, it is not possible to adopt a child of the same sex since the Hindu Adoption and Maintenance Act (HAMA) doesn't allow it. But such an adoption can be done under the Juvenile Justice Act (JJA) and Guardian and Ward Act (GWA)." But not many know that such an adoption is possible. Nagendra Kumar, who already has a biological daughter, wanted to adopt another girl a year-and-a-half back. "But it was not possible due to HAMA. Now that I know that I can adopt a child of any sex, I will think about adopting a girl child soon. I was unaware of the JJA and GWA." In the case of C B Ramkumar, it really made no difference. "I adopted a boy 10 years ago. I had a biological daughter earlier. I was unaware of this rule maybe it didn't matter because I was adopting a child of the opposite sex," he said. Though the general opinion is that the recent judgment will spur adoptions, Mary doesn't think so. "It's not like before. Many more people are coming forward to adopt children but there are no children to adopt. In a year, we do around 75 adoptions through our trust," she says. Lalita Ramkumar agrees. "Those days are past we should be proud to say that we have adopted a kid. We should not make them feel insecure. Many of my friends who have a biological kid have adopted child of opposite sex. We should encourage adoption," she says. The judgment says The Mumbai High Court recently allowed an actor-couple to adopt a daughter even though they already have one. The recent judgment by Justice D Y Chandrachud changed the face of adoption for Hindus, making the Juvenile Justice Act prevail over the Hindu Adoption and Maintenance Act (HAMA) which does not allow same- sex adoptions. > > > > Finally! Nine years after the Juvenile Justice Act, there's some > > > > clarity. [quoted text clipped - 101 lines] > > Better late than never, indeed. Actually, the problem is that there was a gray area. The Guardians and Wards Act (GWA) allows you to become the child's legal guardian. It's a relationship that terminates at the end of childhood, and doesn't make the child next-of-kin, or your heir. (I seem to recall we beat this topic into the ground when we discussed adoption alternatives with Di.) For a long time, it was the only option for non-Hindus who wanted to adopt, and for when you wanted to adopt, say, a same-gender sibling pair. One kid could be adopted; the other taken as a ward. (Or both taken as wards.) The Juvenile Justice Act (JJA) of 2000 changed that, but it was not clear whether, for Hindu couples, they could choose to adopt under the JJA. This ruling has clarified that they can. Which now means kids in India can be adopted under HAMA or JJA, or become wards under GWA > http://www.mid-day.com/news/2009/sep/220909-same-sex-adoption-high-co... > [quoted text clipped - 157 lines] > > > Better late than never, indeed. Thanks for clearing that up. > Actually, the problem is that there was a gray area. > [quoted text clipped - 175 lines] > > > > Better late than never, indeed. |
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