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Why in the News?
Recently, the department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice tabled its report in Parliament on the ‘Review of Guardianship and Adoption Laws’.
Key Takeaways
Parliamentary Standing Committee Report
Custody of Child
- There is an “urgent need to amend the HMGA (Hindu Minority and Guardianship Act, 1956).
- It asked to accord equal treatment to both mother and father as natural guardians as the law violated the right to equality(Article 14) and right against discrimination (Article 15).
Marital Dispute
- In cases of marital dispute, the panel says there is a need to relook at child custody which is typically restricted to just one parent where mothers tend to get preference.
- It says courts should be empowered to grant joint custody to both parents when such a decision is conducive for the welfare of the child, or award sole custody to one parent with visitation rights to the other.
Adoption
- On adoption, the Committee has said that there is a need for a new legislation that harmonises the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Hindu Adoptions and Maintenance Act (HAMA), 1956 and that such a law should cover the LGBTQI community as well.
- It has also proposed allowing the LGBTQI community to adopt children.
Law on Guardianship
Hindu Minority and Guardianship Act, (HMGA) 1956:
- Under the Hindu Minority and Guardianship Act, (HMGA) 1956, the natural guardian of a Hindu minor in respect of the minor’s person or property “is the father, and after him, the mother.
- Further, it provides the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.”
The Muslim Personal Law (Shariat) Application Act, 1937
- It says that the Shariat or the religious law will apply in case of guardianship.
- According to Shariat the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty.
- Although the father’s right to general supervision and control exists.
- The concept of Hizanat in Muslim law states that the welfare of the child is above all else.
Adoption Regulations, 2017
- The Adoption Regulations, 2017 is silent on adoption by LGBTQI people and neither bans nor allows them to adopt a child.
- Its eligibility criteria for prospective adoptive parents says that they should be physically, mentally and emotionally stable, and financially capable.
- Single men can only adopt a boy while a woman can adopt a child of any gender.
- A child can be given for adoption to a couple only if they have been in a marital relationship 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 seek adoption face institutional discrimination because of stigma.
- Therefore, the law should be amended to include LGBTQI as eligible candidates including when they apply as non-single parents.
