On March 4, 2024, the Supreme Court in Shazia Aman Khan & Ors vs The State of Orissa & Others (hereinafter ‘Shazia’) while setting aside an order passed by the Orissa High Court altering the custody of a minor girl child observed that “she cannot be treated as a chattel at the age of 14 years”. This is a very important and much needed judgment in terms of setting the record straight on jurisprudence on custody between Muslim parties in India.

In Shazia, the Supreme Court essentially made two important points. Firstly, unlike the Orissa High Court which observed that “in absence of adoption, the custody of the minor child is liable to be termed as illegal detention”, the Supreme Court did not just make the fine distinction between adoption, custody, and guardianship, but also noted that the three concepts (or definitions) are neither same nor interchangeable.

Secondly, in matters of custody, besides welfare, the Apex Court underscored, “Stability of the child is also of paramount consideration”. These two observations by the Apex Court, significantly, didn’t just further the principles of natural justice, but are also in conformity with the mandate of and jurisprudence under the Guardians and Wards Act, 1890. The glaring error that the Supreme Court identified in the High Court order, might have occurred on two counts. This could be either due to a misreading of these legal concepts (adoption, custody and guardianship) and their relationship to the stance of the Muslim Personal Law Board (MPLB) or may have been rendered in sheer haste in keenly framing the issue.

Instead of framing the issue in the case on hand as one that had to determine custody, the High Court ventured into the unchartered territory of determining adoption, which is not permissible in the existing misinterpretation of Islamic law. Else, how would we read the historical case of the adoption of a boy by the Prophet –wherein the custody remained with the Prophet in accordance with the wish of the eight-year-old child? The relevant Quranic verse(s) does not prohibit adoption per se. It only prohibits erasure of the biological paternity of the child.

In light of the above proposition, I would like to state that the practice of either substituting adoption with custody or framing the issue as one of custody in the language of adoption to unsettle custody –often committed by the Indian judiciary– has wreaked havoc in the lives of families.

Though, in Shazia, specific judges of the Apex Court- a polyvocal court– identified the issues and dealt with them accordingly. However, every case (and parties) is not as fortunate as those in the case of Shazia. I will come to the havoc component triggered by unsettling the custody of children in subsequent section by analysing –again–a custody judgment of 2022. .

Before moving forward, the following crucial facts of Shazia need to be re-capped to put things in perspective:

With mutual consent, the biological mother had given away her three month’ old baby girl (born in 2010, in Ranchi) to her own sister. After a few years, a series of police complaints and financial blackmailing of the foster parents by the biological parents followed. Surveying the facts of the cases of custody suggests that there is almost a pattern. In April 2023, the Orissa High Court ruled that the 13-year-old girl should be dislocated, de-stabilized and notwithstanding the psychological trauma the girl would undergo, should “be returned back to the biological parents”.

This was challenged in the Supreme Court, where the HC order was stayed in June 2023. Subsequently, the Supreme Court on March 4, 2024 gave its 19-page verdict setting aside the HC order. The verdict records that the Supreme Court had interacted with the child on December 12, 2023, and “found the child to be quite intelligent, who could understand her welfare” (Para 17, Page 17). Further, noted the Apex Court, “We find that the welfare of the child lies with her custody (being) with the [foster parents]. This is coupled with the fact that even she also wishes to live there. Keeping in view her age at present, she is capable of forming an opinion in that regard. She was quite categorical in that regard when we interacted with her.”

On March 4, 2024, the Supreme Court did set aside this particular order of the Orissa High Court order, arguing how unsettling the alteration of custody of the child would be and not serve the child’s welfare. The same Supreme Court, however, in an almost identical case, on October 17, 2022, had refused to interfere with the Allahabad High Court order of September 21, 2022, that had inalienably altered custody.

The Supreme Court had stated that the court found no reason to interfere, and dislocated and de-stabilised the almost nine-year-old girl. In fact, in compassion to the Orissa case, the UP case had an added point in its favour given the fact that the trial court had not de-stabilised the girl’s custody. The trial court, on May 25, 2022, had interacted with the girl (over 8 years of age) and had written a five-page observation on the issue, noting the responses of the girl to the judge’s questions. Yet, neither the High Court nor the Supreme Court felt it necessary (then, in 2022) to interview the baby and assess her, before pronouncing its verdict. A comprehensive critiques of the verdict have been done in two columns, in Citizens for Justice and Peace (March 2, 2023), (where one can read the entire texts of the verdicts of the trial court as well as of the Allahabad High Court), and also in OutlookIndia.Com, January 19, 2023.

What comes out of the Allahabad HC verdict dated 21 Sept 2022 is that there was possibly an intellectual laziness on the part of the judiciary which didn’t labour or pursue the matter to make a distinction between adoption, custody and guardianship, which the Apex Court does in Shazia. The judiciary also refused to make itself aware about: (a) the historical fact that the Prophet’s adopted son continued to remain in his custody; (b) Quranic prohibition is against erasure of biological paternity, not against the adoption, per se.

Besides legal inconsistency in the application of jurisprudence and the failure on the part of the higher judiciary to differentiate between adoption, custody and guardianship, is there any other elephant in the room which obstructs or stymies the objective of paramount welfare of the children as incorporated in the Guardians and Wards Act, 1890? Shedding light on the politics of All India Muslim Personal Law Board (founded in April 1973) in relation to custody in particular and to the issue of Muslim Personal Laws in general shall help us understand the question posed.

Law portals such LiveLaw and Bar and Bench reported the Shazia judgment prominently on March 5, 2024. The Times of India reported it on March 7, 2024. However, the “Muslim-identity-driven” portals such as Clarionindia.net, Indiatomorrow.net, Muslimmirror.com, Maktoobmedia.com, etc., did not carry any news on this verdict.

After all, the All India Muslim Personal Law Board (AIMPLB), owes its foundation in (Hyderabad, April 1973), to the Muslim agitations against the Indira Gandhi led government which had amended some of the laws. These had to do more with Hindu laws. Even then, Muslims protested against these, assuming that the amendments tinkered with the Muslim Personal Law, particularly those pertaining to adoption of a child.

A convention was held in Bombay on December 27, 1972, at which they decided to form the AIMPLB. In 1986 too, it was these Muslim agitators that had succeeded in nullifying the Supreme Court verdict of April 23, 1985 (the famed Shah Bano case), through Parliamentary legislation. Even in 2017-2018, to retain the un-Quranic Instant Triple Talaq (ITT), the AIMPLB and other such theological bodies dedicated to save the Shariah had launched various kinds of agitations such as Deen Bachao-Desh Bachao Rally in Patna (April 15, 2018) and across the country (see Rediff.Com columns, July 12, 2018; April 21, 2018; April 15, 2018; March 15, 2018; and The Wire. In columns, dated, March 29, 2018; February 12, 2018).

One therefore wonders why those sections of Indian Muslims and their leadership are, unlike what they did in 1972 and in 1985, refraining from resorting to street demonstrations, now (2024), when the Supreme Court has ruled in favour of the custody with the foster parents.

Have they, by now, become less conservative on the Shariat issues? Do they fear the current dispensation? Or have they really come to understand the distinction between adoption, custody and guardianship?

It is a generally held view that the Muslim Personal Law prohibits adoption. However, reality is, as said above: Quranic prohibition is only against erasure of biological paternity of the adopted child. Custody is quite well settled in favour of the child’s wish. The Prophet Muhammad had adopted a son, Zayd. Based on his wish, his custody continued with the Prophet. But this is an interpretation not clarified in the Shariat Acts of 1937 and 1939, and this is an opinion not adequately popularised.

Recent lower court orders (latestlaws.com, February 05, 2024) on succession/inheritance have disregarded the Shariat Act 1937. For instance, a lower court of Delhi, in its order on February 3, 2024 said that a son adopted by a Muslim couple would inherit 100% of the assets of the foster parents; any individual belonging to the Muslim community can adopt a child without making a declaration under the Shariat Act.”

As per this ruling, any such adoption shall be governed by the general law and not by the Muslim Personal Law. The said child would become the legitimate child of his adoptive parents”, the court said. In another instance of March 2023, Sheena Shukkur, 51, an academic and head of the law department at Kannur University, and her lawyer husband C. Shukkur, 53, registered their marriage under the Special Marriages Act at the sub-registrar’s office in Hosdurg in Kerala’s Kasaragod district in the presence of their family, friends and three daughters. This was “to ensure that their three daughters automatically inherit their assets in entirety, which would not have been possible under the Muslim personal law” (The Telegraph, March 9, 2023). The couple has got no son.

The Supreme Court verdict dated March 4, 2024 however, in a way, still accepts the supremacy of the existing interpretation of Mohammedan law. My submission is that the Supreme Court must point out the deep flaws by way of clarification in the Muslim Personal law, viz.,

1. Quran doesn’t prohibit “adoption” per se. What it prohibits is the erasure of biological paternity, means, the baby must know the biological paternity);
2. Custody is very much established. Zayd [Zaid] continued in the Prophet’s custody even after the so-called prohibition of “adoption”. Yet, the AIMPLB refuses to reform along these lines;
3. The Courts must take a position after questioning the biological parents on the fact that, if they are going by personal law, why did you give away your baby? Once this act was done, the implication is that they intended to be regulated by secular law.
4. On the above three points of law, even the legal researchers and academics are silent or ambivalent. Students of the law are rarely taught about such misinterpretations and juridical inconsistencies.
5. Why, does it often happen that it is after five-six years of such an act (handing over of the child) does such obvious blackmailing & litigation begin? No court ever holds the biological parents accountable for such blackmailing.

Against this backdrop, a fresh reading of the Allahabad High Court judgment of September 2022 which was later upheld by the Apex Court in October 2022 may be in order. In light of the judgment in Shazia of March 2024, it can be strongly argued that the Supreme Court must re-consider its decision dated October 2022, even suo moto by perhaps by invoking Article 142 of the Constitution of India. This would involve a re-look at its 2022 order in view of the differentiation provided in Shazia between adoption, custody, and guardianship. That the child was not interviewed by the Apex Court is another very strong reason to look into its October 2022 judgment. Doing so, I firmly believe, would not just help in the realization of complete justice, but will also align this unfortunate blot with the extant jurisprudence.

(The author is presently pursuing LLM at SOAS, University of London as Marang Gomke Scholar)

Related:

Where the doctrine of parens patraie was invoked to unsettle custody: Adoption

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The fact that Indians while preaching diversity and equality, often forget that people who have different sexual orientations, that is the people of the LGBTQ+ community also deserve the same rights as the heterosexual people of this country.

When section 377 was decriminalised[2], it was a watershed movement for the country, a hope for a better future where the privileges that the heterosexual community enjoys are equal and same as the rights that the LGBTQ+ community deserves.

However, there has been no further action taken to strengthen the rights of the community since 2018, even after the unabated discrimination faced by the community. Five years down the line and India still stands at the same position with respect to LGBTQ+ rights, even after recognizing them as a community that needs equality.

The United Nations’ Universal Declaration of Human Rights states,

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family[3].”

Then why is there an issue when it comes to same sex couples?

Adoption rights in India

In India, there are two main legislations that govern adoption, the Hindu Adoption and Maintenance Act, 1956[4] (herein after referred to as HAMA) and The Juvenile Justice (Care and Protection of Children) Act, 2000[5] (herein after referred to as JJ Act)

With accordance to HAMA,

Every man who is a Hindu (by faith, including Buddhist, Jain, or Sikh) who is of sound mind, not underage, and is qualified to adopt a son or a daughter. However, if such a man is still married at the time of the adoption, he can only do so with his wife’s permission (unless the court has pronounced her incapable of giving her consent).

Any female who is a Hindu (including Buddhist, Jain, or Sikh by religion) has the right to adopt a son or daughter if she is not married, or if she is married but her husband is deceased, their marriage has been dissolved, or her husband has been found to be legally incompetent by a court. This also limits the adoption rights of women, somewhat.

HAMA, while allowing single parents to adopt, but does not leave space for same sex adoption.

If a couple is adopting under HAMA act, they need to be-

1. Of different genders
2. Hindu’s
3. Of sound mind

Under the JJ Act,

• A couple or a single parent may adopt an orphan, an abandoned kid, or a child who has been handed over.
• The potential adoptive parents must be mentally stable, physically fit, and fully prepared to adopt the child and to raise the child well.
• For married couples, both spouses’ consent is necessary.
• Adopting a girl kid is not permitted for unmarried men.
• No couple may receive a child unless they have been married for at least two years in a healthy partnership.
• The age gap between the adoptive child and the parents shouldn’t be any smaller than 25 years.

Here, in order for a couple to adopt it is necessary for them to have a “healthy marriage” for a period of two years. However, since same-sex marriages are not legally recognized in India, therefore even under the JJ act it is not permissible for same sex couples to adopt a child.

The Guardians and Wards Act[6] too is dominated d by the idea of a heterosexual couple.

Since all the legislations that govern adoption and surrogacy see marriage as a prerequisite for adoption in the case of couples, it is impossible for a homosexual couple to adopt. Moreover, the legislations are not gender neutral. Building a family by marriage and having kids through adoption is a basic right that should be available to all humans and should not be categorized as a heterosexual privilege.

Despite recognising the LGBTQ+ community formally, India is still holding on to these discriminatory laws, and restricting the people from the community to have a family. This is not only a contravention of Article 14 and 15, but also of Article 19 of the Indian Constitution.

Jurists and LBGTQ+ Rights-

Lon Fuller, a legal philosopher and jurist, argued that law must conform to or with morality. He introduced a concept of “inner morality of law” which means that for a legal system to be legitimate and effective, it must conform to some essential moral principles. The laws must reflect and promote basic moral principles and values accepted by society, such as fairness, justice and human dignity.[7]

Laws are shaped by the society we are living in, but in the end laws need to serve their purpose, which is fairness and justice. Laws must conform with the basic moral standards, in order to be considered legitimate. Living in a society, where the laws are not just or fair for a particular group of people, makes the system itself, basically ineffective and illegitimate.

While living in a democracy, it is especially important to keep in mind that law is dynamic, law must conform with the basic moral standards, law is a measure of equality in society and that law is a tool that can be used to uplift all communities in the society that have faced discrimination in the past.

Ronald Dworkin[8], another legal philosopher and jurist, places emphasis on the ethical foundations of rights.  According to Dworkin, rights have a deeper moral foundation than simple legal or social structures. Dworkin contends that because they are moral beings, people have certain rights. The values of justice, fairness, and respect for human dignity serve as the foundation for these rights.

They represent the inherent worth and liberty of people while also providing them with defence against unwarranted intrusion or injury. According to Dworkin, people have inherent rights because of their moral standing rather than being awarded or bestowed by the government or society. They can neither be removed nor overruled by simple law nor the desires of the majority because they exist regardless of legal acknowledgment.

Dworkin’s idea of “rights as trumps” highlights how crucial individual rights are when it comes to determining legal decisions. Rights, in Dworkin’s view, have a distinctive position and act as trumps that take precedence over other factors like utilitarian or majority interests.

Dworkin’s viewpoint argues that the rights of anyone, including same-sex couples, should be recognised and protected when applying this idea to same-sex adoption.

Dworkin would probably contend that same-sex couples should be allowed to adopt in the context of same-sex adoption. He would argue that it is against their fundamental rights to equality and liberty to prevent same-sex couples from adopting merely based on their sexual orientation. Dworkin’s paradigm would give individual rights and the best interests of the child top priority when determining whether same-sex adoption is legal and permissible.

Countries that have legalised same-sex adoption-

Fifty-five countries, have legalized same sex adoption, 128 countries are in the process of doing so, 44 countries consider same sex adoption illegal[9].

In the celebrated judgement of the US supreme court, Obergefell v. Hodges[10], a case which has been repeated citied by the Indian Courts in various judgments, like Navtej Singh Johar v. the Union Of India[11], Arunkumar and Another Versus Inspector General of Registration[12], Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others[13] and Shayara Bano v. Union of India [14]

The case has not only been an important one, to reach the most groundbreaking decisions of India but has also been used as a precedent. This was the case that legalized same-sex marriages and same-sex adoption in the US.

However, so far, while using it a precedents on many aspects of universal rights law, where Indian courts have spoken about dignity, privacy, and right to marry whoever you want, Courts have not legalised same-sex adoption or marriage up yet.

Indian constitution and same-sex adoption

Everyone has the right to equal treatment under the law, as stated in Article 14. It allows for distinctions to be made between various groups of individuals, but it also demands that these distinctions be founded on observable differences and have a logical relationship to the objective being pursued. There is no discernible difference between people who indulge in “carnal intercourse outside the order of nature” and those who engage in “natural” intercourse, according to the Supreme Court in the case of Navtej Singh Johar v. UOI.

According to the ruling in Navtej Singh Johar v. Union of India, the LGBTQ+ group has access to all fundamental and constitutional rights. When precedents explicitly state that the LGBTQ+ community is entitled to the same fundamental rights as everyone else, the law cannot prohibit certain persons from adopting because they share the same gender. This concludes to say that, If the constitution upholds equality, then everyone must have the option of getting married, regardless of whether or not other people of the same sex desire to do so.

The right to marry whoever you want and form a family is an inherent right of a human being, and this right is enshrined in Article 21 of the constitution of India. The court noted that society was through a substantial period of change in Shafin Jahan v. Asokan K.M. and ors. [15] Marriage-related intimacy is protected by an unbreakable core of seclusion, and even religious matters would have little effect on it.

It has been also determined that the freedom to marry anyone one chooses and the freedom to start a family are essentially protected under Article 21 of the Indian Constitution. In a Bombay High court Judgement, Payal Sharinee v. Vinayak Pathak[16] the court held that adopting a child is an integral component of Right to Life under article 21 of the Constitution of India. The right to life not only to safeguard the rights of children who need the care and protection but also of the parents who desire children and want to form a family.

It would be discrimination against the LGBTQ+ community to deny them this right since it has been established that there is no intelligible differentia, which would be a violation of Article 15 of the Indian Constitution.

Imperative for legal change regarding same-sex adoption in India

Laws governing same-sex adoption are increasingly being called for to be changed as a result of changing social standards and a growing knowledge of the diversity of families. The idea of equality is at the core of the push for new laws. All citizens must be treated equally in a democratic society, regardless of their sexual orientation. The Indian Constitution’s anti-discrimination tenets are violated when same-sex couples are denied the opportunity to adopt merely because of their sexual orientation. Accepting same-sex couples’ ability to adopt will respect equality principles by guaranteeing that everyone has an equal chance to start a family and create a loving home for children.

The wellbeing and best interests of the child come first in any adoption situation. Children raised by same-sex couples do equally as well as those reared by heterosexual couples, according to a number of studies. For instance, the American Psychological Association has emphasised that parental behaviour and family relationships—rather than the parents’ sexual preferences—have a greater impact on children’s wellbeing. By limiting the number of prospective loving and caring homes and disregarding the wellbeing of numerous children who may benefit from adoption, the right to adopt is denied to same-sex couples.

When it comes to the numbers of children in India who require homes, there is a serious problem. Many youngsters spend a considerable amount of their childhood in institutional care as a result of the lengthy and complicated adoption procedure. By permitting same-sex couples to adopt, the pool of prospective adoptive parents would grow, boosting the likelihood that children waiting for adoption will find suitable and devoted homes. This larger pool of potential parents can lessen the strain on the already overworked adoption system and improve results for kids who need them.

The social environment is dynamic and ever-changing. The acceptance of same-sex adoption fits in with the global movement to acknowledge and respect various family forms. The legalisation of same-sex adoption in numerous places, including several Western ones, demonstrates how important inclusion and equality are. India should endeavour to lead social progress and show its commitment to human rights by accepting such legal reforms since it is a fast expanding country.

In India, same-sex couples are marginalised and stigmatised as a result of the current legal prohibitions on same-sex adoption. Denying people the ability to adopt keeps a feeling of inequity and exclusion alive, which is bad for their mental health. Accepting same-sex adoption will lessen these detrimental psychological effects by reaffirming the value and dignity of every person, regardless of sexual orientation.

In conclusion, there is an urgent need for legal modification in India with relation to same-sex adoption. The ideals of equality, child welfare, and societal advancement can be honoured by amending adoption rules to accommodate same-sex couples. Such legal changes would increase adoption opportunities, safeguard children’s safety, and advance a more open and equitable society. It is essential that India accepts these changes and cultivates a culture that values and honours the variety of family configurations and upholds the interests of its young people.

(The writer is a legal intern with cjp.org.in)

[1] https://www.oed.com/

[2] AIR 2018 SC 4321

[3] Universal Declaration of Human Rights (adopted on 10th December 1948) Article 16(1)

[4] https://www.indiacode.nic.in/bitstream/123456789/1638/1/AA1956____78.pdf

[5] https://www.indiacode.nic.in/repealed-act/repealed_act_documents/A2000-56.pdf

[6] https://www.indiacode.nic.in/handle/123456789/2318?locale=en

[7] Fuller, Lon L. “Positivism and Fidelity to Law: A Reply to Professor Hart.” Harvard Law Review 71, no. 4 (1958): 630–72. https://doi.org/10.2307/1338226.

[8] Dworkin, R. (1977) Taking Rights Seriously. Harvard University Press, Cambridge, MA

[9] https://www.equaldex.com/issue/adoption

[10] Hodges – 135 S. Ct. 2584 (2015)

[11] Navtej Singh Johar and Others Versus Union of India, Thr. Secretary Ministry of Law and Justice [2018] 4 MLJ (CRL) 306

[12] Arunkumar and Another Versus Inspector General of Registration, No. 100, Santhome High Road, Chennai – 600 028 and Others [2019] 4 MLJ 503

[13] Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others [2017] 6 MLJ 267

[14] Shayara Bano Versus Union of India and Others [2017] 6 MLJ 378

[15] Shafin Jahan v. Asokan K.M. and ors. (2018) 16 SCC 368, AIR 2018 SC 1933

[16] Payal Sharinee v. Vinayak Pathak 2010 (1)BomCR 434

Related:

Manoeuvring Law and Legality for Same-Sex Marriage

Union of India opposes the Right to Same Sex Marriage in the SC

Homophobia is Anti-National: Keshav Suri

Understanding LGBTQIA (Community Resource)

Stonewall Uprising: A Rainbow Rebellion, Not a Riot

Madras HC commends TN gov’t for new Police rules, glossary for referring to LGBTQIA+ persons

The post Why the case for same-sex adoptions is both moral and legal appeared first on SabrangIndia.

Two days after Prime Minister Narendra Modi called himself as ‘adopted son’ of Uttar Pradesh in an election rally, the UP State Commission for Protection of Child Rights has sought legal documents from Modi to substantiate his claim of adoption by someone in Uttar Pradesh.
The commission has given seven days time for submitting the papers failing which an apology has been sought from Modi. Further, if legal documents are not submitted the adoption will be deemed illegal and against the spirit of The Juvenile Justice (Care and Protection of Children) Act, 2015.

Member, UPSCPCR, Nahid Lari Khan has also sent copies of the notice to Election Commission of India.

The post ‘Prove your adoption’ asks UP Commission for Child Rights to PM Modi appeared first on SabrangIndia.