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India ’s Highest Court Accepts Christians’ Plea for Adoption Rights

7/23/07 New Delhi (International Christian Concern) – The Supreme Court of India has accepted the petition of the Evangelical Fellowship of India (EFI) to make provision for Christians to legally adopt children.

A bench of the Supreme Court comprising judges K.G. Balakrishnan and Ravindran on July 14 accepted the “intervention petition” of the New Delhi-based EFI, which told the court that, being a representative of a large number of Christians in India , it was also an affected party in the ongoing case related to absence of adoption rights for religious minorities.

Dr Rajeev Dhawan, senior advocate of the Supreme Court who represented the EFI in the court, said that the petition filed in 2005 by social activist Shabnam Hashmi, a Muslim, also concerned the Christian community in India .

The court was hearing Hashmi’s petition about the lack of legislation that would permit religious minorities to adopt children. The court had on September 26, 2005 issued a notice to the federal government, seeking its response on the issue. The federal government was to file its reply on July 14 (2007), but it sought more time. Consequently, the court deferred the hearing to August, without specifying a date.

Current Legislation Only Permits Hindus to Adopt Children

Although child care is a part of the Christian mission, there is virtually no law in the country, barring two states, under which Christians can adopt.

Under the Hindu Adoption and Maintenance Act (HAMA), 1956, only Hindus can adopt legally. Muslims, Christians, Parsis and Jews can only become the guardians under the Guardians and Wards Act (GAWA), 1890, which does not confer the status of a biologically born child.

As per the high court rulings of Kerala and Maharashtra states, Christians can apply for conversion of their guardianship to full adoption.

According to a ruling of the Kerala High Court in 1999, an adoption made by a Christian couple is valid and the child adopted is entitled to inherit the assets of the couple given that Christian law does not prohibit adoption. The high court in Maharashtra also held that “the fundamental right to life for an orphaned, abandoned and a similarly placed child includes the right to be adopted by parents, to have a home, a name, a nationality, and this is an enforceable right, justifiable through a civil court”, and therefore Christians could also adopt.

The Juvenile Justice (Care and Protection of Children) Act (JJA) 2000 does provide for the adoption of abandoned and abused children by all religious communities, but its implementation vis-à-vis adoption remains only on paper.

Under the JJA, only the Juvenile Justice Boards, after they are empowered to do so by way of notification, can facilitate adoptions. However, no state government has issued any notification to empower the Board to deal with adoption matters.

Attorney Lansinglu Rongmei of the Christian Legal Association (CLA), which drafted the petition for the EFI that has been pushing for adoption rights for Christians along with other Christian agencies, told ICC, “Granting of adoption rights to Christians – both the right to adopt and to be adopted – is long overdue. We are hopeful that the court will take note of the absence of law, and ask the law makers to make a legal provision for all communities to provide home to needy children with full adoption rights.”

CLA general secretary, attorney Tehmina Arora, said that a lack of legislative provisions for religious minorities to adopt violated Article 14 of the Indian Constitution, which guarantees all citizens the right to equality before the law. “Besides, such a situation affects the right of neglected and orphaned children to have a home,” she added.

It is estimated that India has more than 56 million children who are either orphaned or homeless.