Source:         www.compassdirect.org

Date:            November 30, 2007

Legal obstacles meant only Hindus had the right, except in three states.

by Vishal Arora

NEW DELHI, November 30 (Compass Direct News) – Ending a long era of absence of adoption rights for non-Hindus, the government has cleared the way for all religious communities in all Indian states to adopt legally.

The government of the Congress Party-led United Progressive Alliance on October 26 gave notice of new rules under the Juvenile Justice (Care and Protection of Children) Amendment Act or JJA of 2006, making room for all communities to adopt, reported national daily The Times of India on November 17.

“This has ended a long wait by the Christian community, which for many years has been urging the government to grant them the right to adopt,” a representative of the Christian Legal Association (CLA) told Compass.

Christians from almost all denominations are happy with the government’s move.

Father Babu Joseph, spokesperson of the Catholic Bishops Conference of India, said, “The new [amended] law will help many more children waiting to be adopted by willing parents, both within India and abroad, thus giving them a new lease of life.”

The Rev. Dr. Richard Howell, general secretary of the Evangelical Fellowship of India (EFI), said his group welcomed “the significant move” by the federal government “to enhance the legal rights of adopted children and the couples who adopt them.”

It is estimated that barely 5,000 children a year are adopted in the country, though there are more than 56 million orphaned and destitute children.

Legal Obstacles

The only law that governed adoption in India was the Hindu Adoption and Maintenance Act (HAMA) of 1956, which allows only Hindus to adopt.

Christians and other non-Hindu communities can become guardians under the Guardians and Wards Act (GAWA) of 1890. The GAWA, however, does not give the child the status of the family’s biological children, and guardianship may be revoked in certain situations.

Moreover, under GAWA there is no legal relationship once the child reaches age 18 years. (See Compass Direct News, “Why Can’t Christians Adopt in India?” October 21, 2005.)

But case laws in the states of Kerala, Maharashtra and Goa allow Christians who have taken a child in guardianship under GAWA to petition the courts for the adoption of the child. Christians from outside India could take Indian children under GAWA and convert their guardianship into adoption under the laws of their respective countries.

Hurdles Removed

The existing Juvenile Justice (Care and Protection of Children) Act (JJA) of 2000 allowed Christians and other religious minorities in all Indian states to adopt, but confusion about the role of adoptive agencies had stalled implementation.

Section 41 (3) of the JJA 2000 provided for adoption only through Juvenile Justice Boards (JJB), but no state government had provided implementation mechanisms, effectively preventing adoptions under the law.

The government amended the JJA in 2006 and provided notice of the amended law on August 23 that year. The rules were finally framed recently and published on October 26 of this year.

On November 17 The Telegraph newspaper quoted a senior official of the women and child development ministry as saying that the new rules had been sent to all states, which now have to pass the rules in their respective assembly houses or prepare a set of guidelines that the federal government will scrutinize.

To facilitate adoption, the amended JJA now allows courts, in lieu of JJBs, to give children in adoption. A district court in Delhi gave a child in adoption to a Muslim family under the amended JJA last month, according to the November 18 issue of The Hindustan Times.

The amendment also brings under its purview “surrendered” children, beyond the abandoned, neglected or abused children mentioned in the JJA of 2000.

Moreover, unlike the JJA of 2000, the amended law defines “adoption,” stating it is the “process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship.”

According to reports, the new rules will also make it easier for foreigners to adopt children in India.

Some Muslims have criticized efforts to expand adoption rights.

“It is no secret that efforts over the years to bring adoption by all communities under a unified law have been scuttled because of objections by some Muslim leaders, who’ve shown themselves more interested in protecting their turf,” The Hindustan Times noted. “The latter have claimed that such a law would interfere with the community’s personal laws, and Islam, in any case, doesn’t recognize adoption.”

The government’s move came in the wake of a pending petition in India’s Supreme Court on the absence of laws enabling religious minorities to legally adopt children.