A progressive UCC must protect the child’s best interests

Source: The post is based on the article “A progressive UCC must protect the child’s best interests” published in “The Hindu” on 1st September 2023.

Syllabus: GS2- Mechanisms, laws, institutions and bodies constituted for the protection and betterment of vulnerable sections (child)

News: The article talks about the importance of India’s Uniform Civil Code (UCC) giving more importance to the child’s well-being in custody disputes rather than biological connections. It mentions recent court judgments that favored biological parents over adoptive ones, causing potential harm to child welfare and adoption rates.

What is the current Indian law on child custody?

Guardians and Wards Act, 1890: This act emphasizes the child’s welfare as the primary consideration in custody decisions.

Hindu Minority and Guardianship Act, 1956:

Generally, the father is considered the natural guardian.

The mother becomes the guardian when the child is below five.

The Supreme Court in the Githa Hariharan case (1999) interpreted “after him” to mean in the father’s absence, not necessarily after his death.

Islamic Law on Custody:

Custody is seen as the child’s right, not the parents’.

The mother is the preferred custodian, with several relatives listed before the father.

Different Islamic schools have varied rules:

Hanafi School: Mother retains custody until boys are seven and girls are 17.

Shafii and Hanbali Schools: Mothers have custody until a daughter marries.

Maliki School: Mothers get custody of male children until puberty and female children until marriage. After these points, children can choose their guardian.

How does the Indian law view biological parents vs. adoptive parents?

General Trend: Indian courts have recently shown a leaning towards the rights of biological parents over adoptive parents in custody disputes.

Bombay High Court (2023) Example:

A child resulting from an alleged rape was given up for adoption.

On the biological father’s petition, the court halted the adoption proceedings.

The court, sidelining the adoptive parents and Child Welfare Committee’s reservations, awarded custody to the biological father.

Nasrin Begum Case (2022) Example:

A child was with adoptive parents for six years.

The High Court gave precedence to the biological parents, emphasizing the child’s right to know her identity and the rights of the biological parents, disregarding the adoption agreement.

What are the implications of the Indian law view for adoptions?

Implications for Adoptions in India:

Decreased Adoption Rates: If biological parents are consistently favored, potential adoptive parents might be deterred from adopting.

Child’s Best Interests: The child’s welfare and trauma can be sidelined.

Legal Ambiguity: Adoption agreements can be overruled, leading to uncertainty. For example, despite an existing adoption agreement in the Nasrin Begum case, the High Court prioritized the biological parents’ rights.

Current legal trends could jeopardize the stability and security of the adoption system in India, potentially putting child welfare at risk.

What should a progressive Uniform Civil Code (UCC) consider?

Child’s Best Interests: UCC should prioritize the child’s welfare in all custody disputes, overriding biological or adoptive preferences.

Rights of Adoptive Parents: Protecting their rights is crucial; otherwise, adoptions might decline.

Beyond Biological Ties: The UCC shouldn’t overemphasize biological connections; bonding through care and love should be equally recognized.

Inclusive Guardianship: Make provisions for various guardianship forms, including single parents, surrogate parents, and queer parents.

A modern UCC should prioritize child welfare and reflect the diverse nature of family structures today.