SC allows non-hindu families to adopt a child, raising hackles of religious organizations but giving a new hope to childless parents and orphaned children.
By Anubha Rastogi
WHEN Sushmita Sen decided to adopt a child almost two decades ago, many Indian singles and couples wondered: Can we also adopt without going through a maze of bureaucracy and paperwork? The answer is: yes and no. Indian law allows adoption, but also imposes several caveats that don’t make it easy.
For years, the Hindu Adoptions and Maintenance Act, 1956 (HAMA) was the only law on adoption. But it was limited to adoption of, and by, Hindus, Sikhs, Buddhists and Jains; and people from other religions, including Muslims, Christians and Jews, had to turn to the Guardians and Wards Act, 1890 (GAWA). Under GAWA, people who adopted had the legal status of guardians and not the parents, and the child was only a ward. Thus, the adopted child in, say, a Muslim or a Christian family, did not enjoy equal inheritance rights and other benefits, as an adopted child in a Hindu family did.
Eight years ago, social activist Shabnam Hashmi challenged the law on behalf of non-Hindu children and parents, hit by the legislative vacuum. Her petition sought the right to adopt for every person irrespective of religion and sex, and the right of every child to be adopted irrespective of religion and sex. Hashmi went to court to be legally recognised as the parent of her adopted daughter, who, under the law, was regarded as her ward. She was shown as a ward in the service books of her husband Gauhar Raza, a scientist working with the government of India, and was, therefore, not entitled to the same benefits as other family members. Hashmi was determined to remove this anomaly.
Hashmi finally has a reason to rejoice. In February, the Supreme Court gave Muslims and other non-Hindu communities the right to legally adopt a child under the amended Juvenile Justice (Care and Protection) Act, 2000. This law provides for adoption as one of the means of rehabilitating children in need of care and protection. Even though it was enacted in 2000 and amended in 2006, the rules for its implementation were framed in 2007.
Interestingly, the All India Muslim Per-sonal Law Board questioned the act on the ground that Islamic law did not put an adopted child on a par with a biological child. The board also wanted the Child Welfare Committees under the Juvenile Justice Act to ensure that Islamic tenets were considered while giving a Muslim child for adoption.
The Supreme Court said that with the amendment to the Juvenile Justice Act to include aspects of adoption, a legislative vacuum had been filled. The apex court also observed that the new rules on adoption were in line with guidelines issued by the Central Adoption Resource Agency (CARA) in 2006 and 2011. The government, on its part, informed the Supreme Court that adoption, irrespective of religion and sex, was already taking place under the provisions of the Juvenile Justice Act. Between January 2013 and September 2013 itself, 19,884 adoptions had taken place.
On the submissions made by the All India Muslim Personal Law Board, the Supreme Court observed that the Juvenile Justice Act was an enabling and optional legislation, and, therefore, could not be bound by the rules of personal laws. The court added that the act was a small step towards the mandate of Article 44 of the constitution seeking a Uniform Civil Code, and observed that at present it would not be advisable to direct the central government to look into developing a secular law like the Special Marriage Act, as the country was not ready for a healthy discourse on the uniform civil code. The court reiterated that the Juvenile Justice Act filled the vacuum and at present that was sufficient.
However, the court rejected Hashmi’s plea for adoption to be considered a fundamental right even though it will be in the process of constant evolution with the right to life. The elevation of the right to adopt or be adopted would have to wait until conflicting thought processes had dissipated.
The All India Muslim Personal Law Board had opposed the appeal on the ground that Muslim Personal Law does not recognise adoption, but it does not prohibit a childless couple from taking care of and protecting a child with emotional and material support. The court felt that an enabling legislation that ensured adoption to take place, irres-pective of religion and sex, was sufficient at this stage. A significant step towards a more humane society.
Lost Motherhood
(the anguish of a woman who wanted to adopt a child)
I was 35 years old, five years into my marriage (my second) and with no children to call my own. My husband, single child of divorced parents, who wasn’t–still isn’t–fond of kids (perhaps, bearing scars of his own childhood) finally gave in to my desire and we decided to register with one of the top adoption agencies in Delhi.
I will admit at the outset that between my husband and me, I was more proactive when it came to organizing meetings with the adoption officer, getting the paperwork in order and essentially finding out the basic procedure for adoption. My husband said he was supportive of adoption for the “sake of my happiness”.
Given his background, I should have guessed that having children for my sake would not be enough–in time, it would be one of the cruelest realities that would haunt me for a lifetime. At that time, however, simply getting a “yes” from him was enough to look forward to a life-long commitment of joy, nurturing and the responsibility of raising a beautiful girl child who was already out there in the world, waiting to come home.
What got served eventually, after we signed up with the adoption agency, was a suicidal cocktail of depression, spiked heavily with a long waiting time–days of depression wondering just how long the adoption process takes; unanswered calls; ambiguous statements by adoption officers to call up “a month later” and then “another month” and then “six months later”.
Here’s what happened after we submitted our papers to the relevant agency after completing–rather, starting–our legal process in November 2011. Nothing moved for three months and we had absolutely zero idea of what–or what not–to expect. There was no communication from the agency.
And suddenly one day in February 2012, we were asked to attend a “counseling” session, along with a few other “adoption-expectant” parents, the next day! I understood (having gone through Google search and spoken to some other friends, who had adopted children) that along with a counseling session, a home visit by the adoption officer was also mandatory. This appointment was fixed for mid-March, 2012. Twenty-four hours before the D-day, however, the meeting was cancelled and was rescheduled for mid-April. What I experienced with the agency time and again was communication breakdown, unanswered calls, zero explanation about the process, and the sound of my broken heart.
Post the home visit, we were once again left in a lurch. Either my calls went unanswered or there were ambi-guous statements (“we’ll call”; “don’t call”; “it’s a long wait”; “there are no kids right now”; “we can’t help it”; “we have no news”). All this while, I didn’t know how to explain to friends and family why things were so slow on the adoption front simply because I was not receiving
any answers from the adoption agency.
In the meantime, to “prepare” for the arrival of the baby (we had requested for a healthy, 3-month-old baby girl), I left my full-time job (after a decade of working as a journalist) to freelance. I started conducting craft workshops with children at home and essentially started living a life that I always wanted. But two years later, when I got tired of simply waiting and staring at blank walls of my home, I got back to working in an office in the midst of people.
After nearly two-and-a-half years, I got a call (for the first time, the agency called on its own) and I was informed that twin baby girls, one-year-olds, had been identified for us. My first thought (after “moving on” to a better job profile) was that of shock. In all honesty, after two-and-a-half years, I felt like I had to suddenly make a life-altering decision. The phone call had changed my life. After the initial few minutes, however, I had a beaming smile on my face. I knew this was what I wanted the most.
Back home, my husband threw a fit and, to cut a long story short, made it clear that he was unhappy with the idea. “I’m not prepared for one, two is too much to ask,” he said. My mother-in-law, after supporting me initially, dissuaded me. So did my parents (they had seen my
husband’s negative reaction). But I was adamant on adopting the children.
We met the children in the adoption center (they looked so much like me) and I hoped my husband would come to terms with it. He didn’t and months later he would confess to me that he “felt nothing looking at them”. On her part, the adoption officer immediately dissuaded me from adopting the twins but affirmed that we had the first right of refusal. I bought more time, stressing my husband was having the initial jitters. Week after week I begged the very patient adoption officer to wait, as I was “working” on him to change his mind. Four months down the line, after fighting, begging, screaming, crying, rebelling, struggling, threatening suicide, sweet-talking, even seducing, I finally gave up my fight
for motherhood.
In the interim, thinking that I could bring about a change by altering my mind and environment, I had been buying clothes, toys, taking the kids for their health checkup, preparing their room. All my friends, after all, had done all this when they had kids. Only, they had their husbands to support them. I was all alone.
It’s been five months since I went to the adoption agency on that cold, winter morning in Delhi. My husband had to come along with me and together we told the adoption officer that “we will let this opportunity pass”. We handed over the bagful of clothes, milk bottles, sippers, accessories and toys that I’d bought for the babies, along with two pairs of silver bangles that I’d purchased for them. I left the health reports with the officer and requested everything be given away to the lucky family that would eventually adopt them. I refused to see them one last time for fear of breaking down the n-th time, and when the officer said she was sorry for me, all I could say was “they deserve much better parents.” On her part, the adoption officer admitted that our “unique case” showed that ticking the boxes of one home visit, one counseling session and simply completing paperwork is not enough. “We should have done more,” she said, sounding genuinely apologetic.
Looking back, I wish I’d kept up better communication with my husband through that phase; I wish I’d continued sharing my dreams with my husband; I wish I’d seen his denial. And though I cannot blame anyone, I so wish there had been more communication with the adoption agency on a more regular basis, complete with many more counseling sessions with experts, more home visits than just one during the “waiting” phase. I wish we had been not a “file” but a real, living, imperfect couple in the eyes of the adoption agency that could have seen at the outset some fatal signs and given us pep talks.
Instead of two beautiful babies, I cradle in my arms today broken dreams of motherhood, a shabby relationship, an unsteady future. I’ve never had the guts to call up the agency after the episode; the agency doesn’t call me either. The twins have been adopted. “A well-off
family in Delhi”, as the officer informed my husband one last time before the calls completely stopped.
I’d like to believe I have moved on but I still feel the gentle tug of their little bodies against my chest. I still hear their wails–a faint echo of the time when they were getting their health checkups–and I still hear their laughter when they were comfortable in my arms during that brief time. I cry when I’m alone and tell nobody. My friend says I carry the symptoms of a woman who has had a miscarriage. I feel it was abortion because I took the decision to not have them in my life anymore. As a “mother”, I’m happy the twins are in a better, more secure, place. But as a woman, I’ll never forgive myself for being weak, buckling under pressure and giving up two very beautiful children.
Archana Sharma