Former adoptive parents and children eligible to be

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Former cases amply illustrate the activist role played by the judiciary. It shows how Courts, under various circumstances, have upheld the right to adoption as an intrinsic right that springs from the right to life under Art. 21 of the Indian Constitution.However, this perspective has been substantially altered with the recent decision in the case of Shabnam Hashmi v. Union of India and Ors . The question in the instant case revolved around right to adoption of Muslims. Assuming a progressive vantage point the Court granted adoptive rights to Muslims under the JJ Act. It espoused the significance of JJ Act as a secular law of adoption in India and accorded the right to adoption to all religious communities in India, overriding the dogmata of their personal laws. However, the Court disallowed the prayer that the right to adoption be interpreted under the right to life of Art. 21.  The court pointed out that it was for the Parliament to bring to fruition the constitutional obligations of Article 44 and that it is for future generations to engraft a UCC once there is “a dissipation of conflicting thought processes… prevailing in the country.” This decision came as a decisive setback against the right of for adoptive parents and children eligible to be adopted alike.Thus, in conclusion we can say, since the Supreme Court has unambiguously stated, the right to adopt is not a fundamental right in India. However, it needs to be so since it would relieve childless couples and parentless children. A nurturing home is essential for a child to grow into a healthy human being, mentally and psychologically. The enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its subsequent amendment in 2006 is definitely a significant endeavor of the legislature towards recognition of adoption of orphan, abandoned and surrendered children by people irrespective of their religious status. It is more filocentric unlike most legislations. But it must be pointed out that some more subtleties need to be distinctively deliberated upon by the legislature. As for instance, this Act insists on adoption by any person irrespective of his/her marital status, but it does not state whether the consent of the other spouse is necessary in case adoption by a married couple. This might create the erroneous belief among the Hindus as in Hindu Laws (HAMA) taking consent of the wife by her husband is an imperative criteria for adoption. Secondly, the Act is mum on the prerequisite age gap between the adoptee and adoptive parents in case they are of opposite sex. Though it might appear to be a mere formality, this is an indispensable factor determining adoption, which should be sincerely adhered to for the purpose of nipping child abuse and trafficking in the bud. A strong vigilance system should be put in place to carefully and consciously monitor the adopted child as well .CONCLUSIONTo conclude, while Hindus have a codified law for Adoption procedure, the Muslims, Christian and Parsis still lack this advantage. It is for this reason that the idea for Uniform Civil Code has been extensively debated and clamoured over for enforcement. In spite of this, the apex court in Shabnam Hashmi v Union of India  did not comply with this idea and said that time has not yet come to elevate the right to adopt as a fundamental right. It also observed that the idea of UCC can only happen by the collective decision of the generations to come to sink conflicting faiths and beliefs that are still active as on date. With regard to this, this article lays down criticism and supports the Kerala High Court Judgement in the case of In Re Theodore Manuel v Unknown  which supports the aforesaid idea and hence the need for a Uniform Civil Code.

Categories: Law


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