On guardianship and adoption of minors
Aug. 10, 2022

In News:

  • A Parliamentary panel has tabled its report, in both Houses of Parliament on the ‘Review of Guardianship and Adoption Laws’.

What’s in Today’s Article:

  • News Summary

News Summary

  • The department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice tabled its report, in both Houses of Parliament on the ‘Review of Guardianship and Adoption Laws’.

Recommendations of the Parliamentary panel on guardianship and child custody

  • Urgent need to amend the HMGA (Hindu Minority and Guardianship Act, 1956):
    • The report said that there is an urgent need to amend the HMGA (Hindu Minority and Guardianship Act, 1956).
      • The existing law treats mothers as subordinates to their husband.
      • Hence, the law violated the right to equality and right against discrimination envisaged under Articles 14 and 15 of the Constitution.
    • It recommended to accord equal treatment to both mother and father as natural guardians.
  • Joint custody of children during marital disputes
    • In cases of marital dispute, the panel says there is a need to relook at child custody which is typically restricted to just one parent.
    • In such cases, mothers tend to get preference.
    • The panel recommended that courts should be empowered to:
      • grant joint custody to both parents when such a decision is conducive for the welfare of the child, or
      • award sole custody to one parent with visitation rights to the other.
  • On adoption
    • The Committee has said that there is a need for a new legislation that harmonises the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Hindu Adoptions and Maintenance Act (HAMA), 1956.
    • It also said that such a law should cover the LGBTQI community as well.

Current law on guardianship

  • Legislative framework
    • Indian laws accord superiority to the father in case of guardianship of a minor.
    • Under the HMGA, 1956, the natural guardian of a Hindu minor in respect of the minor’s person or property is the father, and after him, the mother.
    • The Muslim Personal Law (Shariat) Application Act, 1937 says that the Shariat or the religious law will apply in case of guardianship according to which the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty though the father's right to general supervision and control exists.
  • SC Judgment
    • Githa Hariharan vs RBI in 1999 challenged the HMGA for violating the guarantee of equality of sexes under Article 14.
    • The court held that the term “after” should not be taken to mean “after the lifetime of the father”, but rather in the absence of the father.
    • But the judgment failed to recognise both parents as equal guardians, subordinating a mother’s role to that of the father.
    • Though the judgment sets a precedent for courts, it has not led to an amendment to the HMGA.

Can queer and transgender people adopt children in India?

  • The Adoption Regulations, 2017 is silent on adoption by LGBTQI people and neither bans nor allows them to adopt a child.
    • Its eligibility criteria for prospective adoptive parents says that they should be physically, mentally and emotionally stable, financially capable and should not have any life-threatening medical condition.
    • Single men can only adopt a boy while a woman can adopt a child of any gender.
    • A child can be given for adoption to a couple only if they have been in a marital relationship for at least two years.
  • Activists say LGBTQI people who seek adoption face institutional discrimination because of stigma.
  • Therefore, the law should be amended to include them as eligible candidates.