“Why Christians cannot adopt in India?” – SC issues notice to Central Govt.

New Delhi – In a significant step, India’s apex court, the Supreme Court of India, has issued a notice to the central government asking it to respond to the absence of laws enabling religious minorities to legally adopt children.

The notice, which was recently issued, came in response to a petition by a social activist seeking a special law enabling people of all religious communities to adopt legally. The petitioner argued that the absence of such a law is one of the reasons why the average number of adoptions in India is low.

Article 14 of the Indian Constitution guarantees every citizen the right to equality before the law, but only Hindus can “legally” adopt in India.
Christians and other religious minorities can only become “guardians.”

According to estimates, India has more than 12 million orphaned and 44 million destitute children. Barely 5,000 are adopted each year.

The law that governs adoption in India is the Hindu Adoption and Maintenance Act of 1956, which allows only Hindus to adopt. Christians can only become guardians under the Guardians and Wards Act of 1890.

The Guardians and Wards Act of 1890, however, does not give the child the status of the family’s biological children, and guardianship may be revoked in certain situations. Moreover, there is no legal relationship once the child reaches age 18 years.

A law that was passed in 2000, the Juvenile Justice (Care and Protection of Children) Act (JJA) of 2000, allows Christians and other religious minorities to adopt, but confusion about the role of adoptive agencies has stalled implementation.

Section 41 (3) of the JJA states that the Juvenile Justice Board “shall be empowered to give children in adoption,” implying that the state government must empower the adoption body and the Board’s adoptive powers are not automatic.

However, till date, no state government has notified its Board about its authorities and powers.

“No child has been given in adoption under Juvenile Act so far, because the adoption process has not yet been initiated anywhere,” said Aloma Lobo, chairperson of the Central Adoption Resource Agency, an autonomous body set up under the Ministry of Social Justice and Empowerment to deal with matters concerning adoptions.

According to John Dayal, secretary general of the All India Christian Council (AICC), the government’s reluctance to protect minority communities’ adoption rights amounts to abdication of responsibility towards orphans and the destitute.

“Why should a secular country have communal adoption laws?” he asked. “Article 39 of the Constitution states, ‘The State shall direct its policies towards securing that childhood and youth are protected against exploitation and moral abandonment.’ Given that, why should the state not ensure this protection to Muslim, Christian, Parsi and Jewish children?”

“The right to adopt is an enabling provision, not a coercive one,” Dayal noted. “No one should have any problems with it, as there’s no compulsion to adopt. But for those who want to do so, irrespective of community or gender, the option should be provided under a universal adoption law.”

Christians have long been lobbying for the recognition of their adoption rights.

The Catholic Bishops’ Conference of India (CBCI), the National Council of Churches in India (NCCI), and the Evangelical Fellowship of India (EFI) – under the banner of “United Christian Forum” – held several meetings with concerned ministers in 2004 to urge the government to enact a law enabling Christians to adopt.

“In a democratic country like India, laws should be framed keeping in mind the welfare of all sections of the society,” said Fr. Babu Joseph, CBCI spokesman. “Even if the minority communities would want to follow their own adoption procedures, it should be permitted in so far as such practices are not contrary to the existing laws and welfare of the adopted persons.”

Christian and Muslim minorities in India have personal laws for matters related to marriage and succession according to their respective religious beliefs and practices.

Although there is no codified law enabling Christians to adopt, case laws in the states of Kerala, Maharashtra and Goa allow Christians who have taken a child in guardianship under GAWA to petition the courts for the adoption of the child.

Justice D. Sreedevi of the Kerala High Court ruled in 1999 that even in the absence of any specific law recognizing adoption by Christians, an adoption made by a Christian couple is valid, and the child adopted is entitled to inherit the assets of the couple.

Similarly, Justice F.I. Rebello held in the same year that since there was nothing in Christians’ religion that forbade adoption, they could adopt.

Although Indian Christians cannot adopt legally, Christians from outside India can take Indian children under GAWA, and convert their guardianship into adoption under the laws of their respective countries.