Review of Guardianship and Adoption Laws report: Explained | On guardianship and adoption of minors

Source: The post is based on the article “Explained | On guardianship and adoption of minors” published in The Hindu on 9th August 2022.

What is the News?

The Parliamentary Standing Committee on Law and Justice has tabled its report in both Houses of Parliament titled ‘Review of Guardianship and Adoption Laws’.

What are the key highlights from the report?

Equal Rights to mothers as guardians: Amend the Hindu Minority and Guardianship Act(HMGA),1956 and accord equal rights to mothers as guardians under this act instead of treating them as subordinates to their husband.

Joint Custody of Child: In cases of a marital dispute, there is a need to relook at child custody which is typically restricted to just one parent where mothers tend to get preference. It says courts should be empowered to grant joint custody to both parents when such a decision is conducive to the welfare of the child.

Adoption of Child: It has proposed allowing the LGBTQ community to adopt children as well.

Omit the word Illegitimate Child: HMGA Act,1956 makes use of the term ‘illegitimate’ in reference to a child born out of wedlock. The committee recommended that the word ‘Illegitimate’ should be omitted as no child is illegitimate and the law should be the same for all children whether born within or out of wedlock.

What does the law say on guardianship and adoption?

Hindu Minority and Guardianship Act,(HMGA) 1956: Under this, 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 the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

Muslim Personal Law (Shariat) Application Act, 1937: It says that the Shariat or the religious law will apply in the 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.

Supreme Court Judgement: The Supreme Court’s landmark judgement in Githa Hariharan v. The Reserve Bank of India in 1999 provided partial relief. In this case, the HMGA was challenged for violating the guarantee of equality of sexes under Article 14 of the Constitution of India.

– The court held that the term “after” should not be taken to mean “after the lifetime of the father “, but rather “in the absence of the father”. But the court failed to recognise both parents as equal guardians, subordinating a mother’s role to that of the father.

Law Commission of India: The Law Commission in its 257th report on “Reforms in Guardianship and Custody Laws in India” in 2015 recommended that the superiority of one parent over the other should be removed. Both the mother and the father should be regarded, simultaneously, as the natural guardians of a minor.

The current law on adoption of a child by LGBTQI: Adoption Regulations, 2017 is silent on adoption by LGBTQI people and neither bans nor allows them to adopt a child.