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On guardianship and adoption of minors

GS Paper 2

Syllabus: Government policies and Interventions

 

Source: The Hindu

Context: A Parliamentary Standing Committee has said that there is an “urgent need to amend the Hindu Minority and Guardianship Act (HMGA), 1956 and accord equal treatment to both mother and father as natural guardians.”

Direction: Just go through it once. Not so important.

Current legal status:

  • Indian laws accord superiority to the father in case of guardianship of a minor.
  • The Muslim Personal Law (Shariat) Application Act, 1937 says that the Shariat or the religious law will apply in 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.
  • The Adoption Regulations, 2017 is silent on adoption by LGBTQI people and neither bans nor allows them to adopt a child.
  • SC judgment (Githa Hariharan vs Reserve Bank of India in 1999) challenged the HMGA for violating the guarantee of equality of sexes under Article 14 of the Constitution of India.
    • But the judgment failed to recognise both parents as equal guardians, subordinating a mother’s role to that of the father.

 

Recommendation of the Panel:

  • Conferring equal rights to mothers as guardians under the HMGA 1956 instead of treating them as subordinates to their husband
  • Joint custody of children during marital disputes instead of mothers getting preference.
  • Allow the LGBTQI community to adopt children: There is a need for new legislation that harmonizes the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Hindu Adoptions and Maintenance Act (HAMA), 1956 and that such a law should cover the LGBTQI community as well.

 

Insta Links

Simplification of the child adoption process