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Adoption and Surrogacy

Vijayalaxmamma v. B.T. Shankar, (2000) 4 SCC 538

VIJAYALAXMAMMA V. B.T. SHANKAR

Vijayalaxmamma v. B.T. Shankar, (2000) 4 SCC 538

ISSUE:

  • Is permission of the co-widow of a late Hindu male necessarily required for adoption?
  • Does a Sapinda need to give permission to the widow to adopt when the wish of the husband is not known?
  • What is the scope for a legal adoption when there’s more than one widow?

RULE:

  • Hindu Adoption and Maintenance Act, 1956-
  • Section 7- Capacity of a male Hindu to take in adoption
  • Explanation- “If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.”
  • Section 8- Capacity of a female Hindu to take in adoption.
  • Section 12- Effects of adoption: “…from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family”
  • Section 14(2)- “Where an adoption has been made with the consent of more than one wife, the senior-most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers.”

FACTS:

  • A.T. Nanjappa Rao had two wives- Smt. Sharadamma (first wife), and Smt. Neelamma (second wife). They became the senior widow and junior widow respectively on his death in 1968. He left also behind him a suit for properties dividing his estate in two equal parts for his wives.
  • In 1970, A.T Nanjappa Rao’s brother’s son- B.T Shankar (plaintiff) was adopted as per the customs belonging to Sharadamma’s community by means of an Adoption Deed. The adoption was said to be taken by both the widows as late Nanjappa Rao had no issues he had stated before.
  • The adoption was claimed to be acted upon when B.T Shankar’s name was put down as the son of late Nanjappa Rao who had been managing properties, on revenue records.
  • Disputes arose between B.T Shankar and the two widows. Sharadamma soon died in the year 1983.
  • Neelamma now claims that she adopted the daughter of another brother of Nanjappa Rao’s, called Vijayalakshmamma in the year 1970 itself which she, the brother and his wife affirmed through a registered deed in 1984. The act was also protected by a Will dated in 1984, jointly executed by late Sharadamma and Neelamma.
  • B.T Shankar then claimed for 3/4th of the property of Nanjappa Rao claiming that he is the only adopted child.
  • Neelamma (2nd defendant) claims that B.T Shankar’s (plaintiff) adoption deed was unregistered and without her consent and that he has no right to the property on the basis of such a document. She further says that on the matter of adoption, Vijayalakshmamma’s (1st defendant) adoption has evidence to prove it.
  • She pleads that if the plaintiff’s adoption is considered, she still hadn’t consented to the adoption and he should not have a claim to the property that was left behind by the husband, but only to Sharadamma’s as the consent of both the widows is required.
  • The plaintiff produced multiple witnesses to prove his adoption and the Trial Court decrees in his favour.
  • On appeal, The High Court agreed with the Trial Court on matters of questioning the authenticity of the signatures and registration of Vijayalakshmamma’s adoption, and agreed with the plaintiff’s adoption. They however gave a partial relief by saying that since Neelamma hadn’t consented to the adoption, the adoption is only through Sharadamma and only the property share inherited by her can be inherited by the plaintiff.
  • The matter is appealed further in the Supreme Court only for the legality of the adoption on basis of consent, and no other aspects.

HELD:

  • The Court was of the opinion that permission of a co-widow is not necessarily required, as Section 7 of HAMA and its explanation needs to be read into with Section 8 which gives the Hindu female her own right to adopt. The law does not compel the senior widow to take permission, nor will failure of it be sufficient grounds for holding the adoption invalid. It’s just suggestive for peace and good relations that she may consult the younger one.
  • In the absence of clear prohibition by the husband to adopt in a certain way, the widow or the senior widow has the authority to make an adoption. When a widow adopts, it is also under the capacity of her husband’s representation. The aspect of requiring a sapinda to assent to it is to prevent misuse. The assent and authority can be accepted or rejected, as that power of the widow is absolute and uncontrolled. However, absence of consent of a female sapinda doesn’t lead to invalidation.
  • The reason for the same is given that if we take the husband or sapinda’s assent to be necessary thinking that the woman/widow is not equipped to make a judgement regarding the adoption to be carried out, she won’t be fit to advise another widow for the same. Especially for this reason, the consent of junior widow isn’t compulsory as the presumed incapacity of the senior widow, also lies with the junior widow, and taking just each other’s aid won’t diffuse the issue. Relating it to the present case, the legality of the plaintiff’s adoption is thus solved and he does have a valid claim, despite the absence of Neelamma’s consent.
  • Section 12 of HAMA lays down the rights which an adopted child gets, and for proprietary aspects, the child will now be in line to the adoptive parents’ property. Considering that the ties to the birth family are replaced, the rights which the child has from the birth parents are also replaced- which includes succession. The female/widow also belongs to the family of the husband/deceased husband, and thus her family will also be the adopted child’s family- giving rights to the deceased husband’s property as well. So, in this case, the plaintiff will be the adopted son of late Nanjappa Rao (husband) too with respect to Sharadamma.
  • It was held that Sharadamma alone consented to it, and it would be unfair to link Neelamma and her property to this since she took no part in this decision, and thus only the property which Sharadamma inherited would be the plaintiff’s. The appeal is dismissed with awarding the plaintiff one half of the property.
Categories
Adoption and Surrogacy

Vinay Pathak And His Wife v. Unknown, Bombay High Court, September 2009

VINAY PATHAK AND HIS WIFE V. UNKNOWN

Vinay Pathak And His Wife v. Unknown, Bombay High Court, September 2009

ISSUE:

  • Whether a Hindu couple, governed by the Hindu Adoption and Maintenance Act, 1956 can adopt a child when the already have child of their own, of the same gender, under the provisions of the Juvenile Justice Act of 2000?

RULE:

  • When the child to be adopted is orphaned, abandoned or surrendered child or a child in need of care and protection as defined in Juvenile Justice Act, the bar imposed by Section 11 (i) and (ii) of Hindu Adoption and Maintenance Act does not bar the Hindu having biological child from adopting the child of same gender.

FACTS:

  • The Petitioners, Vinay Pathak and his wife Payal are a Hindu couple married since 2001.They are the parents of a daughter born in 2003.
  • They are also the guardians of a female child. The child had been surrendered at the nursing home by the birth mother and her spouse after executing a declaration which also had a provision about a two month period where the birth mother could reclaim the child.
  • Since the parents did not come forward, the social organisation Bal Vikas, which had previously counselled the birth parents asked the court to place the child under guardianship.
  • By 2005 the Petitioners were appointed the guardians of the child and have been the same since the last four years.
  • The petition filed seeks a declaration that the petitioners are the adoptive parents of the child with all the rights, privileges and responsibilities.

HELD:

  • The Court put forward the reasoning the Hindu Adoption and Maintenance Act, 1956 and the Juvenile Justice Act of 2000 must be harmoniously construed.
  • The object of The Juvenile Justice Act, 2000 is to mainly provide “care, protection and treatment by catering to their development needs and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation”. Section 2(d) also defines the expression “child in need of care and protection.
  • Clause (v) includes within this category a child who does not have a parent and whom no one is willing to take care of or whose parents have abandoned or surrendered the child. Along with that Section 40 of the Act provides that rehabilitation and social reintegration of a child shall be carried out alternatively by (i) adoption, (ii) foster care, (iii) sponsorship and (iv) sending the child to an after care organization.
  • Also according to Section 41(2) adoption is to be resorted “for the rehabilitation of children who are orphaned, abandoned or surrendered” through such mechanism as may be prescribed. Section 41(3) empowers the Court to give children in adoption subject to satisfaction of investigations having been carried out, as are required for giving children in adoption.
  • Therefore, firstly, even though The Hindu Adoptions and Maintenance Act deals with conditions required for adoptions by Hindus, the Juvenile Justice Act is still a special enactment which deals with children in conflict with law and children in need of care and protection. This act has ensured that its secular in nature and makes sure that the benefits of adoptions are not restricted to religion or any social group.
  • So if a child does fall under the description of an orphaned, abandoned or surrendered child within the meaning of Sub-section (2) of Section 41 or a child in need of care and protection under Clause (d) of Section 2, the provisions of the Juvenile Justice (Care and Protection of Children) Act 2000 must prevail.
  • Secondly, if there is a conflict between the provisions of the two Acts, the Juvenile Justice Act will prevail since it came into force in 2000, later than the Hindu Adoptions and Maintenance Act which came out in 1956.
    Thirdly, the Juvenile Justice Act is a special act which has an overriding effect on the general provisions of the Hindu Adoptions and Maintenance Act. Even if the Hindu Adoptions and Maintenance Act is considered a special act as it deals with Personal Law, it still provides general principles when talking about adoption, which are applicable to Hindus. While the Juvenile Justice Act includes specific rules for adoption of a limited and specific section of people i.e. abandoned, surrendered or orphaned children. Therefore, a special provision acts as a modifier to the general rule, by not completely overriding it.
Categories
Adoption and Surrogacy

Shabnam Hashmi v. Union of India (Supreme Court of India, February 2014)

SHABNAM HASHMI V. UNION OF INDIA

Shabnam Hashmi v. Union of India (Supreme Court of India, February 2014)

ISSUE:

  • Since there were no civil laws for the non-Hindu adoption, in case of adoption, will the specific Muslim personal law be applied or the common umbrella act of Juvenile Justice Act 2000?
  • Whether the right to adoption irrespective of caste, creed religion be considered a fundamental right applicable to the society homogeneously?

RULE:

  • Article 44 of Indian Constitution
  • Article 41 of Juvenile Justice Act 2000-
    Family and Personal Laws- Muslim Shariat Law for Adoption

FACTS:

  • Shabnam Hashmi visited her first adoption centre in New Delhi’s suburbs; she was told that they didn’t have any Muslim children. Shabman Hashmi who had a son wanted to adopt a daughter to make a complete family.
  • However she learnt that Muslims cannot adopt or be adopted and if they want to do so it can only be done by virtue of The Guardians and Wards Act, 1890, which doesn’t give a legal status of biological parents nor does adoptee have any rights of inheritance. She filed a Writ Petition in the Supreme Court in 2005 to give the Muslim parents the same status as that of a biological parent and to recognize adoption as a fundamental right under Article 21.
  • The judges called the decision to allow the civil rights activist Shabnam Hashmi to adopt a child after an eight-year court battle, “a high watermark in the development of the law relating to adoption.” Shabnam Hashmi was given only a guardianship right on the adopted child who was not recognised equal to a biological child.
  • There were no rights regarding the adoption of children for other religious communities except the Hindus. Being a Muslim, she was subject to the Muslim Shariat Law which did not recognise an adopted child to be on par with a biological child.
  • A PIL was filed under Article 32 of Indian Constitution to lay down guidelines to enable adoption of children by person irrespective of caste, creed and religion.
  • The petitioner in the view of the Juvenile Justice Act 2000 as amended in 2006 stated that the prayer in the writ petition was very well answered in the Supreme Court that Juvenile Justice Act 2000 enables any person irrespective of religion she professes to adopt. She argues that every child in India should have the right to family, explaining that often the child adopted is too young at the time of adoption and does not know about biological parents, adding that its “highly insensitive” to not even let them write the ‘adoptive’ parents’ name.
  • The write petition has also prayed for a declaration that the right of a child to be adopted and that of the prospective parents to adopt be declared a fundamental right under Article 21 of the Constitution.
  • All India Muslim Personal Law Board objected to this plea that under Islamic law adoption is not recognised. Since there was no specific law regarding the adoption by Muslims, the board claimed the personal law to prevail.
  • According to the personal laws, they practice the kafala system rather than legal adoption. Under this procedure the child is placed under the ‘kafil’ (a guardian) who provides the well being of the child financially and legally takes care of him.
  • Further, the Muslim Shariat law doesn’t consider the adopted child to be legally equal to a biological child.
    Also, it considers the adopted child to remain as the true descendants of his biological parents and not the adoptive parent.

HELD:

  • The supreme court held that, the Fundamental Rights embodied in Part-III of the Constitution constitute the basic human rights which inhere in every person and such other rights which are fundamental to the dignity and well being of citizens.
  • While it is correct that the dimensions and perspectives of the meaning and content of fundamental rights are in a process of constant evolution as is bound to happen in a vibrant democracy where the mind is always free, elevation of the right to adopt or to be adopted to the status of a Fundamental Right, in our considered view, will have to await a dissipation of the conflicting thought processes in this sphere of practices and belief prevailing in the country.
  • The legislature which is better equipped to comprehend the mental preparedness of the entire citizenry to think unitedly on the issue has expressed its view, for the present, by the enactment of the JJ Act 2000 and the same must receive due respect.
    Hence it concluded that present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/or to understand such a right to be encompassed by Article 21 of the Constitution.