GUARDIANSHIP AND ADOPTION OF MINORS

A Parliamentary panel has recommended conferring equal rights on mothers as guardians under the Hindu Minority and Guardianship Act (HMGA) 1956, instead of treating them as subordinates to their husbands and has called for joint custody of children during marital disputes.

It has also proposed allowing the LGBTQI community to adopt children

RECOMMENDATIONS OF THE PARLIAMENTARY PANEL 

• The department-related parliamentary standing committee on Personnel, Public Grievances, Law and Justice 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 has said that there is an” urgent need to amend the HMGA1956 and accord equal treatment to both mother and father as natural guardians as the law violated the right to equality and right against discrimination envisaged under Articles 14 and 15 of the constitution.
• It says the court should be empowered to grant joint custody to both parents when such a decision is conducive to the welfare of the child or award sole custody to one parent with visitation rights to the other.
• On adoption, the committee has said that there is a need for new legislation that harmonies the Juvenile Justice (Care and protection of children) Act, 2015 and the Hindu Adoption and Maintenance Act (HAMA), 1956 and that such a law should cover the LGBTQI community as well.

What does the law say about guardianship? How do courts grant child custody?

• Indian laws accord superiority to the father in case of guardianship of a minor.
• Under the religious law of Hindus, or 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: provided 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 says that the Shariat or the religious law will apply in case of guardianship according to which 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 though 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. This is the reason why Muslim law gives preference to the mother over the father in matters of custody of children in their tender years.

GITHA HARIHARAN VS RESERVE BANK OF INDIA 

• Supreme court landmark judgment in 1999, challenged the HMGA for violating the guarantee of equality of sexes under article 14 of the constitution of India and the court held that the term” after” should not be taken to mean” after the lifetime of the father “but rather” in absence of the father ‘.
• But the judge failed to recognize both parents as equal guardians, subordinating a mother’s role to that of the father. Though the judgment sets a precedent for courts, it has not led to an amendment to the HMGA.
• The panel’s proposals on guardianship have been made by the Law Commission of India in its 257 reports on” Reforms in Guardianship and Custody Laws in India” in May 2015 as well as its 133 rd report in August 1989 on” Removal of discrimination against women in matters relating to guardianship and custody of minor children and elaboration of the welfare principle.”

Can queer and transgender people adopt children in India

• 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 say that they should be physically, mentally and emotionally stable, financially capable and should not have any life-threatening medical condition.
• 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.

Conclusion

LGBTQI people who seek adoption face institutional discrimination because of stigma. Therefore, the law should be amended to include them as eligible candidates including when they apply as non-single parents such as when they are in civil unions or married.