Plea in Supreme Court seeks Religion, Gender Neutral Adoption Process

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On Friday, the Apex Court asked the Centre to respond to a plea seeking uniform gender, religion-neutral law of adoption & guardianship across the Country.

The plea was filed by BJP leader & lawyer Ashwini Kumar Upadhyay. A 3-Judge bench, headed by CJI SA Bobde, issued notice on the plea & tagged it with a similar plea filed by Upadhyay demanding uniform grounds for divorce & maintenance, which is both gender & religion-neutral.

Appearing for Upadhyay, 2 Women Senior Lawyers Anjana Prakash & Geeta Luthra requested the Court to issue notice as it raised a very crucial question of law.

Since the petition also requested the court to ask for a report in this regard from the Law Commission of India, the bench said, “We will tag this petition (with the other petition on uniform divorce, alimony grounds) & send it to the Law Commission.”

Upadhyay in his plea said, “Uniformity is essential to secure fraternity, equality & dignity of child but state has not taken steps in this regard till date. Therefore, petitioner challenges blatant ongoing form of discrimination that is the discrimination in adoption & guardianship rights.” The petition pointed out that Hindus, Buddhists, Sikhs & Jains are governed by Hindu Adoption & Maintenance Act & the Hindu Minority & Guardianship Act while personal laws govern adoption & guardianship for Muslims, Christians & Parsis.

Couples who wish to adopt a child have to apply under the Juvenile Justice (Care & Protection) Act while the non-resident Indians & overseas citizens have to approach an authorized Foreign Adoption Agency or Central authority subject to Adoption Regulation of 2017.

The plea even identified the distinctions existing among the law governing guardianship in the country.

The plea said that “Muslims are bound to follow the Kafala system under which a child is placed under a kafil (guardian) who takes care of child’s upbringing….An adopted child cannot inherit guardian’s property & retains his biological name. In Hindu law, the adopted child turns to be the child of his or her adoptive father or mother for all purposes from the date of adoption. The Parsi law does not recognize adoption”. 

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