Guardians
encounter scores of
practical problems related to visas for travel to certain countries, or
inheritance
New Delhi: In early October, Pallavi and Javaid Gillani, a Muslim
couple, became parents.
In their minds they had been parents for 10 months, ever since Khushi,
who is now 13 months old, came under their foster care as they waited
for a adoption petition filed by them to be cleared.
In October, Satnam Singh, the Delhi district judge, allowed the
Gillanis to be adoptive parents of the child under Section 41 of the
Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act).
The Gillanis are believed to be the first non-Hindu couple in New Delhi
to have adopted a child under this Act. Under previous laws governing
adoption in India, non-Hindus who adopted could never be parents, only
guardians. Mint had, on 26 March, reported that the new legislation had
brought hope to non-Hindu couples considering adoption.
"If we were only guardians, we would have limited rights," said
Gillani. The Gillanis now plan to apply for a new birth certificate
that identifies them as Khushi's parents. "It will make life easier for
all practical purposes," said Pallavi.
Guardians encounter scores of practical problems related to visas for
travel to certain countries, or inheritance (the child isn't bestowed
with automatic inheritance rights in such cases). And the guardian-ward
relationship ends when the child turns 21.
The court's order is potentially controversial and is likely to be
challenged by some sections of the Muslim clergy because Islam does not
recognize adoption. However, adoption agencies and social activists
hope that the order will help the cause of other non-Hindus wishing to
adopt as parents.
"Around 2% of the applications received every year are for guardianship
and the rest are all for adoptions mostly by parents from the majority
Hindu community," said Himadri De, administrator at the New Delhi
office of the Church of North India Shishu Sangopan Griha (CNISSG), an
adoption agency.
"We welcome this order. The JJ Act is a secular legislation. The Act is
not well implemented at the moment, but these orders will hopefully
change that," added Loveleen Kakkar, joint secretary in the Union
ministry of women and child development.
The Act under which the Gillanis became parents has been in force for
seven years it provides an alternative to the 117-year-old Guardians
and Wards Act, under which non-Hindus can only be legal guardians but
almost no one in New Delhi has used it.
Legal experts say this could be because of a combination of lack of
awareness and initiative, and that non-Hindu couples in other parts of
the country have been leveraging the provisions of the Act to be
defined as parents.
"There could be confusion since some look at the JJ Act as a
legislation for juvenile delinquents and not for adoption," said De.
In Mizoram, Christian couples have been successfully adopting under the
JJ Act since 2005. "Around 55 children have been adopted under the Act
since 2005 by mostly Christian couples," said Lal Dikkimi, nodal
officer at the adoption cell of the social welfare department in
Mizoram.
The JJ Act also allows for parents, who already have children, to adopt
children who are of the same sex as the existing children, something
that was not allowed under the Hindu Adoption and Maintenance Act, 1956.
Mohan M. Godbole, village director of Balgram Rai, an orphanage in
Sonepat district, Haryana, said the state is yet to see a petition
under the JJ Act for a fresh adoption by non-Hindu parents, but added:
"Hindu couples in the state have begun using the JJ Act route to apply
for adoption of children of the same sex as their biological children
since it is not allowed under the Hindu Adoption and Maintenance Act."
He said two such applications were currently being processed in the
state.
CNISSG, the adoption agency that helped the Gillanis, said it is
processing cases where many non-Hindu couples, who had earlier adopted
under the Guardians and Wards Act, are converting their status to
adoptive parents by applying under the JJ Act. In September, the
district court in New Delhi had passed an order to this effect.
Adoption agencies fear that as the Gillani order gains publicity, it
could trigger adverse reactions, especially from a section of Muslims
that argues that the religion prohibits adoption.
"According to the Quran, a Muslim cannot adopt even a Muslim child. The
Sharia (the Muslim code) very clearly states that a Muslim can only act
as a guardian to a needy child and can never be granted the rights of a
parent," said Asaduddin Owaisi, a lawyer who is a Lok Sabha member of
the All India Majlis-E-Ittehadul Muslimmen party.
He added that petitions for adoption by non-Muslims under the JJ Act
amount to an abuse of the Act. "The All India Muslim Personal Law Board
has already made a representation to the government against the misuse
of a provision of the Juvenile Justice Act, which has triggered this
needless controversy. The board is also readying to challenge this in
the courts."
Not everyone agrees with Owaisi. "Adoption is a humanitarian cause
involving needy children. One must rise above religion, race and even
country in this case... Even if the religion does not strictly allow
adoption, several Islamic countries, too, do allow it in practice,"
said Mukhtar Abbas Naqvi, vice-president of the Bharatiya Janata Party.
One reason for the confusion and the controversy surrounding the Act is
because it coexists with conflicting personal laws. "The old laws were
not repealed after the passage of the JJ Act. The Act is a progressive
enactment and does not force a citizen to adopt through its
provisions those who chose to use it, do it voluntarily," said Colin
Gonsalves, senior counsel at the Supreme Court.
And Jagdeep Kishore, an advocate at the Delhi high court, who filed the
petition for the Gillanis, said the Act is free of "all religious
undertones".
A PIL (public interest litigation) challenging the ban on adoption in
Islam, filed by social activist Shabnam Hashmi in 2005, is currently
pending before the Supreme Court. The All India Muslim Personal Law
Board sought to intervene in this matter by filing an application
(raising objections to the PIL) that is yet to be allowed.
"For almost 15 years now, adoption agencies have been lobbying with the
government to bring out a uniform code on adoption. There are lakhs of
children waiting to be adopted in India," said Hashmi.
This hasn't happened, she added, but the JJ Act has given Indian
couples a way out when the laws governing their religion clashes with
their desire to adopt. Babu Joseph, a spokesperson for the Catholic
Bishops' Conference of India, said while the JJ Act was a law "in the
right direction", India needed "a uniform law related to adoption" and
that if this went “against the beliefs of a community", then
there
should be "separate laws" for such communities.
Ashish Sharma contributed to this story.
http://www.livemint.com/2007/11/07001001/Law-for-adoption-helps-nonHin.html
