A petition was filed before the Supreme Court seeking uniform adoption and guardianship laws for all religious groups in August 2019.
Presently, family laws related to the age of marriage, divorce, maintenance and alimony, adoption and guardianship, and succession and inheritance are governed by a framework of ‘personal laws’ based on religious sources and customary practices. So, different religions have different rules for these matters. Ashwini Kumar Upadhyay, an advocate and BJP politician, has filed five petitions challenging the application of different rules in these five areas and argues for a Uniform Civil Code (UCC) to be created to replace ‘personal laws.’
In Hindu law, the rights of adoptive parents and children have been codified in the Hindu Adoptions and Maintenance Act, 1956 (the HAMA). It grants them the same rights as biological parents and children.
For Muslims, Parsis and Christians, these rights have not been codified. The petition states that under these personal laws, adoptive parents and children have fewer rights than their biological counterparts. These personal laws restrict adoptive children from claiming inheritance rights.
Notably, the petition does not mention the Juvenile Justice Act, 2015, which provides a secular framework for adoption.
The Relief Sought
The petitioner requests the Court to either:-
Direct the Union Government to make the rules for adoption and guardianship uniform, without discrimination on the basis of religion and sex; or
Declare the discriminatory rules for adoption and guardianship unconstitutional, and frame uniform adoption guidelines; or
Direct the Law Commission of India to prepare a report on uniform adoption and guardianship laws within three months.
Personal Laws Discriminate Against Adoptive Mothers
The petition states that under the personal laws governing adoption and guardianship for all religious groups, such as the HAMA and Muslim personal laws, the adoptive father is given preference over the mother as natural gaurdian of the child. This means that as long as the father is alive, he has the right to make decisions with respect to the child, including their finances and education.
This is also the case with the secular Guardians and Wards Act, 1890. The petition claims that the Supreme Court, in Joseph Shine v Union of India (2018), had held that any negative stereotype towards women violates their rights to equality, non-discrimination and life under Articles 14, 15 and 21.The petition argues that the existing adoption laws perpetuate such negative gender stereotypes.
Need for the Uniform Civil Code
The petition states that Hindu law, after codification, leaves no scope for injustice or harm to the adoptive child. Adoptive children from other religious groups may see themselves as inferior and have fewer rights in comparison. So, in the case of children not adopted under the HAMA, the petitioner argues that the absence of a UCC violates their rights to equality, liberty and life.
The petitioner argues that adoption is a secular matter, along with marriage, divorce and maintenance, and should be governed by uniform laws for all religious groups. The petition relies on Article 44 which calls on the State to endeavour to implement a UCC but does not clarify how a court must enforce a Directive Principle of State Policy.
The petition relies on seven Supreme Court judgments referring to the UCC. However, the reliance is partial and selective. For example, in Sarla Mudgal v Union of India (1995), it correctly cites Sahai J to emphasise that the need for a UCC ‘cannot be doubted’. Notably, it avoids a reference to Sahai J’s observation that this first requires a favourable ‘social climate’.