Prime Minister Narendra Modi is making a push to implement the Uniform Civil Code (UCC) mandated by Article 44 of India’s constitution. The UCC would be a single code of marriage and family law that would apply to all citizens equally regardless of their religion and local customs. While much of the focus of the debate has been on marriage law, adoption law, too, deserves serious attention.

Current drawbacks of adoption laws in India

Without the UCC, there are currently different adoption laws for different religious communities. There are a number of drawbacks, including:

— Lack of uniformity in the rights of adopted children. The rights of
adopted children vary depending on the religious community.
Under Hindu law, an adopted child is considered to be the
natural child of the adoptive parents. Under Islamic law, an
adopted child is not considered to be equivalent to a natural
child of the adoptive parents.

— Discrimination. The different laws governing adoption can also
lead to discrimination against certain groups of people, such as
single people, same-sex couples and interfaith couples. This can
make it more difficult for these groups of people to adopt a
child.

— Lack of clarity. The different laws governing adoption can be
complex and confusing. This can make it difficult for people to
understand their rights and responsibilities as adoptive parents or
children. For example, in Rajwinder Kaur & Anr v. Central
Adoption Resource Agency (CARA), the Delhi High Court ruled
that if a child is adopted in accordance with Hindu Adoption
and Maintenance Act (HAMA) rules, it is not necessary to use
the rules of the Juvenile Justice Act, 2015, to ensure that the
adoption is legal. Without assistance from anybody else, without
acknowledgment from CARA or any governmental authority,
an adoption carried out in accordance with the conditions
outlined in HAMA would be valid.

— Difficulties in transferring parental rights. The process of
transferring parental rights from the biological parents to the
adoptive parents can be complex and time-consuming. This can
be especially difficult for children who are orphaned or
abandoned. 

— Unreasonable delays. Tens of thousands of childless people
approved by CARA are still waiting to adopt, more than half of
them for over three years. True, there are fewer children
available for adoption in recent years, but administrative delays
must also take a good share of the blame. While law-abiding
prospective parents await their children, a black market for
children thrives. Just over a month ago, West Bengal witnessed
the shameful case of a couple that sold their 8-month-old son for
the price of an iPhone. 

— Inconsistency in eligibility requirements. The eligibility
requirements for adoption vary depending on the religious
community. This can make it difficult for prospective parents to
navigate the adoption process and can also lead to disparities in
the treatment of adopted children. For example, under Hindu
law, a married woman cannot adopt a child, while under Islamic
law, only a man can adopt a child.

This last issue has been partly remedied by case law, namely Shabnam Hashmi v. Union of India. Hashmi, a Muslim woman, adopted a child, which Muslim law does not allow. She filed a petition for recognition of the right to adopt, regardless of religion. The Supreme Court held that the Juvenile Justice Act gave her the right to do so and noted that the act aims at achieving the purpose of a UCC.

While Hashmi provides a precedent for the right to adopt, it needs to be codified in a more general law.

How can the UCC help?

The UCC would help to overcome these problems by providing a single, uniform set of adoption laws for all citizens of India. This would make adoption law both more fair and more effective.

The UCC would ensure that all children have the same opportunities to be adopted and that all competent adults have the same rights to adopt. It would reduce discrimination against single people, same-sex couples and interfaith couples. It would make it easier for prospective parents to adopt children from other religions.

Once adoption had been completed, the UCC would ensure that all adoptive parents and children have the same rights and responsibilities. The rights of adopted children would be clearer and more consistent, regardless of their religious affiliation. This would give adopted children greater certainty about their legal status and their rights to inherit property and other assets. It would also make it easier for adoptive parents to obtain financial assistance for their children.

In addition to making adoption more fair, the UCC would also streamline the process for everyone. By using the same procedure for everyone, adoption would be simpler and faster, making it easier for adoptive parents to bring children into their families. The UCC would simplify the process of transferring parental rights and make it easier for adopted children to inherit property and other assets. By providing clarity and certainty for adoptive parents and children, the UCC would make it easier for them to access the legal system.

Finally, the UCC would help to increase social acceptance of adoption. It would help to reduce the stigma associated with it, making adopted children equal to their peers. This would make it easier for adoptive parents to raise their children in a supportive environment.

The way forward is not without its obstacles. There is opposition to the idea of a uniform code, particularly from religious and tribal groups. However, the potential benefits for adoptive parents and children outweigh the challenges. Ensuring that all children have the opportunity to grow up in a loving and stable home is something worth fighting for.

[Anton Schauble edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.