MOTHER SUPERIOR

| Wednesday , October 6 , 2010 |

MOTHER SUPERIOR

The Personal Laws (Amendment) Act, which was passed recently, aims to make the laws on adoption women-friendly. But the new legislation has some crucial loopholes, says Saheli Mitra

Indian women have cause for cheer. Last month the government passed the Personal Laws (Amendment) Act, thereby removing some serious gender discrimination in our legal system when it comes to adopting children.

The act, which essentially amends the Hindu Adoptions and Maintenance Act (Hama), 1956, and the Guardians and Wards Act (Gawa), 1890, recognises the mother as the natural guardian of her adopted child, on a par with the father, across all religions. It gives a woman the right to decide whether she wants to adopt a child or whether to give her child for adoption. It also recognises the right of a woman going through a divorce to adopt a child. Earlier, such decisions were the sole preserve of the father.

Section 9 of Hama stated that if the father was alive, he alone had the right to give a child for adoption. The mother could only do so if the father was dead or had abandoned the family for more than 12 years.

Hama also did not allow a woman going through divorce proceedings to adopt a child. Section 8 of Hama stated that only unmarried women, divorced women or widows were allowed to adopt or those who had been abandoned by their husbands, or whose husbands had gone mad. After the amendments, though, women undergoing a divorce will also be eligible to adopt a child.

The amendments to Gawa, the law under which Christians, Muslims, Parsis and Jews can adopt children, have also been made with a view to recognising a mother’s rights in the affairs of her adopted child. In the original law, the father was the guardian of the adopted child, and the mother had no legal right whatsoever to decide on his or her welfare. “The act was so biased that even after the father’s death the court could appoint some other male member of the family such as the grandfather or the uncle as the minor’s guardian, thereby almost negating the mother’s existence,” points out Supreme Court lawyer Geeta Luthra. “As a result, such children were often deprived of their property rights by their guardians,” she adds.

This injustice has been addressed in the amendment to Gawa, which now makes the mother the guardian of the adopted child along with the father, thus safeguarding an adopted minor’s right to his or her father’s property.

Needless to say, legal experts and women’s focus groups have welcomed these changes to Hama and Gawa. Women’s activist Saswati Ghosh, for instance, lauds the fact that women undergoing a divorce can now choose to adopt a child. “Contested divorce proceedings can sometimes drag on for years. How can a woman be deprived of motherhood just because she wants to end a marriage? The amendments have aptly taken care of this injustice,” says Ghosh.

However, others point out that the amendments fail to clarify whether or not they will override provisions in the personal laws of some religions. “Unfortunately, the act makes no mention of whether or not courts should settle cases as per the new provisions of Gawa or the personal laws,” says Luthra.

Under Muslim personal law, for instance, the father enjoys a dominant position. And in his absence, the male executor appointed by him has all the rights — be it to the guardianship of an adopted minor or the guardianship of a minor’s property. The mother is simply never recognised as the guardian of the adopted child. But Gawa is supposed to govern adoption and guardianship of wards across all religions. “So will the new amendments to Gawa supersede the personal laws,” wonders Calcutta-based adoption lawyer Ramesh Pal.

Clearly, by not spelling out if the amended Gawa will override the provisions in the personal laws, the government has chosen to tread a non-controversial path. But in the process, it has left considerable loopholes in the interpretation of the law regarding adoption for non-Hindus.

The solution will have to be provided by the courts, believe experts. Constitution lawyer Amiya Chakraborty feels that the courts will take the interest of the ward into account and will probably decide on a case-to-case basis whether or not to override the personal laws in favour of Gawa. “Otherwise, how will a mother ever get equal rights over adoption matters, which the Personal Laws (Amendment) Act aims to deliver,” he asks.

Again, some legal experts warn that there may be complications if a woman undergoing divorce proceedings is allowed to adopt a child. Says Tapas Kumar Bhanja, a lawyer at the Calcutta High Court, “There are no clear provisions in the amendments on how the woman will financially support the adopted child. A woman going through a divorce can ask for maintenance only for a biological child and not for a child she adopts during the pendancy of the case without the husband’s consent. Under the circumstances, who will look after the welfare and financial security of the adopted child — the mother or her husband, with whom she is engaged in a divorce battle?”

But those who work in the sphere of adoptions do not think that this will be a serious sticking point. Says Madhumita Roy, secretary, Indian Society for Rehabilitation of Children, a Calcutta-based adoption agency, “Now that women undergoing divorce will be eligible to adopt a child, we will naturally look into their individual financial status before processing their applications. We would prefer women with a separate source of income so that they are able to support the child.”

Agrees Daisy David, advocacy co-ordinator, World Vision India, an organisation that works for the welfare of underprivileged children. “Adoption agencies give a child for adoption to a single parent only after verifying his or her financial background. So if the parent is undergoing a divorce, the agency will take her own financial background into account.”

Clearly, the Personal Laws (Amendment) Act aims to make the law on adoptions much more gender just than before. It remains to be seen whether or not the contradictions between the amendments and the personal laws of specific religions end up in subverting that aim.