Option to adoption?

The absence of a law on adoption for Indian Muslims, Christians, Jews and Parsis, prompted social activist Shabnam Hashmi to file a public interest litigation (PIL) in the Supreme Court seeking the enactment of a special law providing the legal option of adoption of and by all persons irrespective of religion and sex. On September 26, 2005, a bench comprising Justices Y. K. Sabharwal, C. K. Thakker and S. H. Kapadia sought a reply from the ministry of social justice and empowerment, ministry of law and justice and department of women and child development, reported The Economic Times of September 27.

While the Hindus, Buddhists, Jains and Sikhs are covered by the Hindu Adoption and Maintenance Act 1956, members of other denominations are "forced to take recourse to the Guardians and Wards Act, 1890” which permits guardianship but not adoption, contended Hashmi. There is need for a law on adoption along the lines of the Special Marriage Act which would have no compulsive effect forcing anyone to act contrary to his/her religious tenets, urged the PIL.

In Bombay, "the PIL has already stirred up a heated discussion in sections of the Parsi community,” reported the Mumbai Mirror of October 11, 2005. The community had grappled with the issue when the government had introduced a draft called Adoption of Children Bill in 1980 that sought to make adoption law applicable to Parsis too. A delegation of high priests and lawyers met the then Prime Minister Indira Gandhi and persuaded her to exclude them from the ambit of the Bill. As Burjor Antia, Bombay Parsi Punchayet trustee and partner of Mulla and Mulla, conveyed to Mumbai Mirror, the main reason why the orthodox Parsis opposed their inclusion in the Act is that adoption would involve conversion of the child to Zoroastrianism which they insist the religion does not permit.

One of the members of the group that met Gandhi in 1980, advocate K. N. Dastoor who edits the Khshnoomist quarterly Parsi Pukar told the Mumbai Mirror, "We do not want to be included in the Act for religious and genetic reasons” and fear of an infringement of their religious rights guaranteed by the Constitution. According to him, the community recognizes the custom of ‘palak’ that enables childless couples to adopt a relative to perform the after-death ceremonies of the adoptive father.

Child adoption was a special feature of Hindu law because many in the community believe that one must have a son to offer the last rites of the father, believes Dr Viraf Kapadia, a member of the jury in the Parsi Matrimonial Court. "This practice is not known in any other community. Therefore one does not see any need to make the adoption law applicable to all communities,” he added. Founder of Zoroastrian Studies Khojeste Mistree too declared in Mumbai Mirror, "Nothing has changed after 1980 that warrants our inclusion in the Act. Many Parsi couples who want to bring up a child that is not biologically theirs have done so under the Guardianship Act. This arrangement has worked extremely well... We are not being racist but adoption should not be thrust on us.”

"Adoption is in the child’s interest because it gives the child more rights than the Guardianship Act. There are many Muslims and Christrians who feel that they should be included in the Act,” the Mumbai Mirror quotes advocate Flavia Agnes who heads Majlis, an organization providing legal aid to women.