by Jeet Sinha

Same-Sex Marriage and Adoption in India

Same-Sex Marriage and adoption becomes of the most debated topic. If we talk about welfare of a children, mother and father plays and important role in development of a child. It is emerging as challenge in granting rights to the same-sex couples as the duty of one parents may remain unfulfilled, as various concerns were raised about it. In this article, we will delve into the concept of same-sex marriage and adoption to find out the legal position.

Introduction

Same-Sex marriage has gained significant limelight in recent times. It is one of the most heated topic in India as marriage carries sacramental value. The hon’ble supreme court have heard all the arguments about same-sex marriage and reserved its decision. One of the arguments in Supreme Court was related to adoption of child by transgender couple. The National Commission for the Protection of Child Rights also shown concerns related to adoption by same-sex couple.

Now, if we look at the definition of adoption, it can be defined as the taking of another child and making them our natural child. In Hindu law, adoption is both sacramental and secular. The purpose of Hindu adoption is both for the performance of rituals and ceremonies along the responsibilities of becoming an heir to the father’s property. Adoption is carried out to give relief and consolidation to childless parents. They have a sense of belongingness towards a person whom they can treat and nurture like their child.

In Section 2(2) of the Juvenile Justice Act, 2015 adoption means “The process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.”[1]

There are various personal laws and codified statutes dealing with adoption. To name a few are the Hindu Adoption and Maintenance Act, 1956; Juvenile Justice Act, 2015. The purpose of all these Acts is the welfare and well-being of the children and the childless families.

The validity of adoption can be questioned by society on how the family members treat an outsider and vest the property and other rights in them. The last rites which are to be performed according to the Hindu custom need to be carried out by their children. So, the acceptance of an adopted child as their vests them with the right to perform these rituals.

Further, in Muslim Law, there is no recognition of adoption but in certain communities there exists the custom of adoption. But Muslim Law does not validate nor deny it expressly.

In modern society, adoption is considered a welfare act as everyone regardless of their community, religion, or custom may adopt provided that they are major and of sound mind and can provide due care to the child. Hence, it is upon the court to adjudicate if there is a conflict between the personal laws and the adoption of a child.

This article aims to explore the validity of same-sex marriage and adoption within the Indian context. By examining the historical perspective, legal framework, current status, challenges, and controversies surrounding these issues, we can gain a comprehensive understanding of the situation.

Same-Sex Marriage in India

Current Status

While same-sex relationships are no longer criminalized in India after Navtej Singh Johar v. UOI, the legal recognition of same-sex marriages is still a matter of debate. The opposing contentions states that adopted child will suffer and majority of adoption law would be ineffective after legal recognition of same-sex marriage.

Challenges and Controversies

The lack of legal recognition for same-sex marriages in India has sparked various challenges and controversies. Traditional and conservative beliefs often clash with the demands for equal rights and inclusion. Some argue that same-sex marriages go against cultural and religious norms, while others highlight the importance of equality and non-discrimination.

In Obergefell v. Hodges, 9 Judge bench of Supreme Court of USA decided the legal validity of same sex marriage. The majority held that same-sex marriage is valid as 14th amendment guarantees due process and equal protection. It is within individual liberty to decide association. There is no difference between Homogenous and Heterogenous couple.

Read historical perspectives of same-sex marriage by clicking here.

Now, we will assess the adoption laws of the country. The Hindu personal law adoption and juvenile justice Act for adoption.

Hindu personal laws on adoption

Hindu law before codification

Adoption in Hindu law, which has been accepted from ancient times, has a sacramental value attached to it. There are certain purposes for which adoption is carried out in Hindu law, such as the fulfillment of one’s last rites, the preservation of the continuity of one’s lineage, and much more.

The son who is born into a Hindu family has a duty towards his parents and the performance of ceremonies and rituals. The adoption of girls in ancient times had not been recognized because they cannot perform last rites or carry on the generation. Therefore, it became an important topic after the codification of law to determine whether adoption among Hindus is sacramental or secular.

Before the codification of Hindu law[2], a Hindu married woman cannot be considered as an adoptive parent. This is because of the doctrine of relating back which states that a child who is been taken in adoption after the death of the father, if adopted by the widow, is considered to be adopted by the father.

This can be illustrated through an example; when a widow, whose husband died on 01.01.50, adopted a son on 01.01.55, the adoption would be deemed to have taken place on 01.01.50, this fiction was created as it could not be said that the Hindu male died without a son.

Transition in Hindu Law after codification

Codification brought a radical change in adoption, by consolidating all the aspects of adoption for Hindu Parents. Now, a married female is empowered to adopt with the consent of her husband. Also, a female child can be adopted which was not there in ancient law.

Adoption by Unmarried person

An unmarried male and female both can adopt under this Act, but they must ensure if they are adopting a child of the opposite sex, then there must be a difference of 21 years, if not then it turns out to be void. This provision is beneficial for a child because it can help in the prevention of cruel sexual harassment at a young age.

Hindu adoption sacramental or secular?

Hindu Adoption in the modern era is more secular than sacramental as a female can also be adopted. The provision of the Act is made to give maximum benefit to the adopted children. Adoption once taken is final and cannot be revoked. The adopted son or daughter will be treated as a natural son or daughter in a family. This Act fulfills the need of children who need care and protection while ensuring no family remains childless.

To take adoption there are requirements provided under the Act, such as the person taking the adoption must be a major and of sound mind. A Hindu male can adopt a son or daughter, whether he is a bachelor, widower, divorcee, or married person. In the case of a married person, he must take the prior consent of her wife, and if the consent is not taken, the adoption is void.[3]

Consent can be derived from three situations: (a) if she has finally and completely renounced the world, (b) if she has ceased to be a Hindu, or (c) if she has been judicially declared to be of unsound mind. If a person has more than one wife, he has to take the consent of each of his wives. The first wife will be considered as the mother and the other wife will be considered as the stepmother of the child.

The question arises as to who can give the child for adoption. Section 9 of HAMA[4] provides that the father, mother, and guardian of a child can give adoption. Father needs to take the consent of the mother except in three cases where consent is implied as mentioned in the case of a receiver of adoption.

Unless there is prior consent of the mother, the adoption will be void. After the 2010 amendment in the Act, the mother can also give her child in adoption with the prior consent of the father and with the same exception as above. The Guardian is also empowered to give adoption.[5]

There are certain necessary conditions which have to be taken into consideration such as two persons cannot adopt the same child. The child must be a Hindu; he may be related by blood or marriage or a total stranger is immaterial. An adopted son cannot be re-adopted again even by the natural parents who had given the child in adoption. This ensures that children and parents both can treat them as their own.

To secure the essence of Hindu practice, ceremonies of giving and taking take place. No other Shastrik or customary ceremony is necessary.[6] The Ceremony of giving and taking is very essential in modern Hindu law, that it was held that even when an adult is adopted, it is to be performed.[7]

The validity of adoption in Hindu law is from the fact that it considers the adopted son as a natural one and bound the son not to marry in a blood relationship or sapindas of adoptive parents. The property rights will also be the same as given to the natural son. If a widow has taken adoption after the death of her husband, then the doctrine of relation back is to be applied and the adopted son or daughter gets the right to the property.

case law

In Sawan Ram v. Kalawati,[8] A, a Hindu died leaving his widow W. W took her properties as a limited owner. In 1954, W gifted some part of the land to her grand-niece, B. X, a presumptive reversioner challenged the validity of gift made by W is not binding on him. The trial court gave the declaration prayed by X. Later B appeals. In 1959, W adopted B’s son P, and the same year she dies. Hindu Succession Act provides that, converts only that widow’s estate into her absolute property over which she had possession when the Act came into force.[9]

X claimed that as W is not the absolute owner, she cannot alienate him from the property. Supreme Court held that the son adopted by the widow is also an adopted son of her deceased husband. So, he also inherits from his father’s property. Here the court has resurrected the doctrine of relating back.

Juvenile Justice Act on Adoption

Chapter VIII of the JJ Act deals with the principle of adoption. It is the secular law on adoption any person irrespective of religion can adopt and any child irrespective of religion can be adopted. Section 2(2) of the Act defines adoption as the process through which a child is separated from his biological parents and becomes a lawful child of his adoptive parents with all the rights, privileges, and responsibilities that are attached to a biological child.

The motive of adoption under the JJ Act was to secure the right to family for the orphan abandoned and surrendered children. A relative can adopt a child of another relative irrespective of their religion, even a person from a foreign country can adopt a child complying with the provisions of the JJ Act. It is evident from the reading of sec. 56.[10]

The Act ensures that the parents who will adopt the abandoned children can maintain him or not. Therefore, it provides eligibility for prospective adoptive parents. The eligibility of the parents that have been provided in the JJ Act is that they should be of sound mind, have a good financial background, be mentally alert, and be highly motivated to give a child a good upbringing.

In Comparison to the Hindu Adoption and Maintenance Act, JJ Act is wider in ambit. Along with it the procedure of Adoption in both the laws is different.  In JJ Act for adoption, the parents have to apply in front of a special adoption agency while in the HAMA, the adoptive parents only need to care for the child and they have to perform the ceremony of adoption to take the child and registration is necessary. Also, they cannot adopt a child of a religion other than Hindu.

In JJ Act for adoption, the role of a Special adoption agency is greater. They have to make a home study report of the prospective adoptive parents and upon finding them eligible will refer the child to the parents legally free for adoption with the papers such as a child study report and medical report. After this procedure, when the parents accept the child then the Specialised adoption agency shall be given the child in pre-adoption foster care.

Further, there is provision for intercountry adoption in JJ Act if the child is not adopted within 60 days of the adoption, then such child will be free for intercountry adoption. Provided that children with physical and mental disability, siblings, and children above five years of age may be given preference over other children for such intercountry adoption. An eligible non-resident Indian or overseas citizen of India or person of Indian origin shall be given priority in inter-country adoption.

Therefore, all these are the procedures that are given in the JJ Act for the adoption of a child and it is quite an essential legislation protecting the children and giving fruitful results to them. The Hindu Law along with the concept of adoption in the JJ Act provides a good background of adoption for the unprivileged child who did not receive the proper care at an early stage of their lives. In addition, it provides children to those parents who are childless.

Conclusion

In conclusion, adoption in India is valid and well recognized by Indian legislation. The active steps taken by the government to provide the children with an adequate home for their early care and upbringing are appreciable. Now, if we look at the status of same-sex marriage in India, decision is still pending. But as we have seen the historical perspectives of same-sex marriage, there is possibility of legality of same sex marriage in India.

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[1] Juvenile Justice Act, § 2(2), No. 2, Acts of Parliament, 2015(India).

[2] Hindu Adoption and Maintenance Act, No. 78, Acts of Parliament, 1956 (India).

[3] Hindu Adoption and Maintenance Act, § 7 Proviso, No. 78, Acts of Parliament, 1956 (India).

[4] Hindu Adoption and Maintenance Act, § 9, No. 78, Acts of Parliament, 1956 (India).

[5] Hindu Adoption and Maintenance Act, § 9(2), No. 78, Acts of Parliament, 1956 (India).

[6] Lakshman v. Rup, AIR 1981 SC 1378.

[7] Dhanraj v. Suraj Bai, AIR 1973 Raj 7.

[8] Sawan Ram v. Kalawati, AIR 1967 SC 1961.

[9] Hindu Succession Act, § 14, No. 30, Acts of Parliament, 1956 (India).

[10] Juvenile Justice (Care and Protection of Children) Act, § 56, No. 2, Acts of Parliament, 2015 (India).