Explained | On guardianship and adoption of minors

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What are the multiple adoption and custody laws? What did the panel recommend regarding the LGBTQI community?

What are the multiple adoption and custody laws? What did the panel recommend regarding the LGBTQI community?

The story so far: A parliamentary panel has recommended giving equal rights to mothers as guardians under the Hindu Minority and Guardianship Act 1956 (HMGA) instead of treating them as subordinates of their husbands, and called for the joint custody of children during marital disputes. He also proposed allowing the LGBTQI community to adopt children.

What are the recommendations of the parliamentary panel on guardianship and custody of children?

The Department’s Standing Parliamentary Staff, Public Grievances, Law and Justice Committee tabled its report on August 8, 2022 in both Houses of Parliament on the ‘Review of the Guardianship and Adoption Acts’ . In its report, the committee said it was “urgent to amend the HMGA (Hindu Minority and Guardianship Act, 1956) and give equal treatment to mother and father as natural guardians, as the law violated the right to equality and the right to opposition”. discrimination provided for in Articles 14 and 15 of the Constitution.

In the event of marital conflict, the panel says there is a need to review child custody, which is usually limited to one parent, where mothers tend to be given preference. It states that courts should be empowered to award joint custody to both parents where such a decision is favorable to the welfare of the child, or to award sole custody to one parent with visitation rights for the child. ‘other.

Regarding adoption, the Committee stated that there is a need for new legislation which harmonizes the Juvenile Justice (Care and Protection of Children) Act 2015 and the Hindu Adoption and Childhood Act 1956. interview (HAMA) and that such a law should cover the LGBTQI community as well.

What does the guardianship law say? How do courts award custody of children?

Indian laws grant superiority to the father in case of guardianship of a minor. Under the Hindu Religious Law, or the Hindu Minority and Guardianship Act (HMGA) of 1956, the natural guardian of a Hindu minor in respect of the person or property of the minor “is the father , and after him, the mother: provided that custody of a minor who has not attained the age of five years is ordinarily with the mother.

The Enforcement of Muslim Personal Law (Sharia) Act 1937 states that Shariah or religious law will apply in cases of guardianship whereby the father is the natural guardian, but custody rests with the mother until that the son reaches the age of seven and the daughter reaches puberty although the right of the father to general supervision and control exists. The concept of Hizanat in Islamic law states that the welfare of the child comes first. This is the reason why Islamic law gives preference to the mother over the father in matters of custody of young children.

The Supreme Court’s historic judgment in Githa Hariharan vs. Reserve Bank of India in 1999, challenged the HMGA for violating the guarantee of gender equality under Article 14 of the Constitution of India and the court held that the term “after” should not be construed to mean ” after the life of the father”, but rather “in the absence of the father”. But the judgment did not recognize both parents as equal guardians, subordinating the role of the mother to that of the father. Although the judgment creates a precedent for the courts, it did not lead to an amendment to the HMGA.

The panel’s proposals on guardianship were made by the Law Commission of India in its 257th Report on “Reforms of Guardianship and Custody Laws in India” in May 2015, as well as in its 133rd Report in August 1989 on the “Elimination of Discrimination against Women in India”. matters relating to the guardianship and custody of minor children and the elaboration of the principle of well-being”

What about marital disputes?

In case of marital disputes, some courts such as Punjab and Haryana High Court and Bombay High Court have established rules to award joint custody or shared parenthood. But lead lawyer Anil Malhotra says that instead of this “patchwork” there is a need to change the law, including the Guardians and Wards Act 1890, to introduce concepts such as shared custody.

Can queer and transgender people adopt children in India?

The Adoption Regulations 2017 is silent on adoption by LGBTQI people and does not prohibit or allow them to adopt a child. Its eligibility criteria for prospective adoptive parents state that they must be physically, mentally and emotionally stable, financially capable, and must not have a life-threatening medical condition. Single men can only adopt a boy while a woman can adopt a child of any gender. A child can only be given up for adoption to a couple if they have been married for at least two years. The HAMA which applies to Hindus, Sikhs, Jains and Buddhists allows men and women to adopt if they are of sound mind and are not minors. Activists say LGBTQI people who apply for adoption face institutional discrimination due to stigma. Therefore, the law should be amended to include them among the eligible candidates, including when they apply as non-single parents, for example when they are in a civil union or married for whom there is no recognition yet. legal in the country, even though the Supreme Court legalized gay sex in 2018.

THE ESSENTIAL

A Standing Parliamentary Committee tabled its report on August 8, 2022 in both Houses of Parliament on the “Review of Guardianship and Adoption Laws”. In its report, the committee said it was “urgent to amend the HMGA and give equal treatment to mother and father as natural guardians”.

The Supreme Court’s historic judgment in Githa Hariharan vs. Reserve Bank of India in 1999, challenged the HMGA for violating the gender equality guarantee under Section 14 of the Constitution.

The Adoption Regulations 2017 is silent on adoption by LGBTQI people and does not prohibit or allow them to adopt a child.

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