Adoption Not Yet Legal For Parsis
- Some Clarifications
Noshir H. Dadrawala
My article “Adoption not yet legal for Parsis” published in the JJW of 16th September 2012
evoked a mixed response. A Parsi lady called me up the same afternoon to say that my article
is, “misleading”. She went on to ask me if I have cared to read the Juvenile Justice Act (JJA)! A
former trustee of the Bombay Parsi Punchayet drew my attention to the Judgment delivered by
Justice Rebello some years ago. In response to these reactions that I have received, a
clarification from my side becomes necessary.
To begin with, let’s be candid and accept the fact that efforts over the past several decades by
the government of India to pass a comprehensive secular law on adoption has failed on account
of stiff opposition from non-Hindu communities, particularly Muslims and Parsis.
Historical Backdrop
The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it. The Adoption
of Children Bill, 1980, aiming to provide for an enabling law of adoption applicable to all
communities other than the Muslim community, was opposed by the Bombay Zoroastrian
Jashan Committee, which formed a special committee to exempt Parsis from the Bill. The
National Adoption Bill, tabled twice in Parliament in the seventies, has yet to enter the statute
books.
Article 44 of the Constitution declares that: “The State shall endeavor to secure for the citizens a
Uniform Civil Code throughout the territory of India.” However, every attempt to bring in the
concept of secular adoption into the Indian system of laws is a saga of inaction and action
without conviction on the part of the legislature.
Juvenile Justice Act (JJA)
No doubt, the Juvenile Justice Act 2000 (and its subsequent amendment of 2006) has neatly
tucked in a provision for adoption, but, with no reflection on how it is to be implemented or its
repercussions. The intentions of this Act are good, but they do not even mention adoption in the
statement of object! Thus, the JJA is not precise and clear in its terms and is in reality, in conflict
with other pieces of legislation.
One needs to note that nowhere does the Juvenile Justice Act 2000 (or the amendment of
2006) say that it supersedes existing legislation on adoptions. JJA fails to override the
provisions of other personal laws. For example the Muslim personal law does not permit
adoption and the government can’t try and plug loopholes in one Act by amending another.
Merely because the JJA has included adoption within its ambit, this is still not an all-in-all
adoption law, but brings in adoption as one of the means by which abandoned, neglected,
abused and destitute children could be rehabilitated. The Act recognizes adoption as an
important process in the rehabilitation and social re-integration of children who are abandoned,
orphaned, neglected or abused in their families or in institutions.
Given its special status within the broader framework of child welfare programme, adoption
demands a class of legislation that must either supersede or made compatible with the
existing legislation.
The existence of a prior law relating to adoption for Hindu and the non-existence of
adoption laws for non-Hindu communities as also, prohibition of adoption in the
religious laws of some communities (e.g. Muslims) makes the JJA rather ineffective.
It is a well-settled principle of Jurisprudence that when there is a ‘general law’ and a
‘specific law’ on the same aspect of law, the latter has precedence over the former.
Consequently, the Juvenile Justice Act is rendered ineffective by the very presence of Hindu
Adoptions and Maintenance Act, 1956, in case of Hindus. Regarding the conflict between the
Act and the existing legislation, naturally, the multiplicity of laws, each with their own set of
operational rules, causes chaos in the field.
With regard to the case of Manuel Theodore, where 'in the absence of legislation', the Bombay
High Court recognized the right of a Christian parent to adopt a destitute and orphaned child,
Justice Rebello interpreted Article 21 to hold that 'the right of the child to be adopted and
consequently to have a home, a name and a nationality has to be considered as part of his right
to life.' Interesting, the Court goes on to recognize a right to adopt on part of the parents flowing
from Article 14. The Court here strayed into the area of personal law. Though adoption by itself
is a fundamental right of an orphaned, abandoned or destitute child, the legal consequence of
being given in adoption entails application of Family Law or what is termed as Personal law.
In the final analysis, it can be said that though the JJA was framed with bonafide intent, yet it
has paved way to a number of doubts and difficulties in its practical implementation. The
Muslims challenge the constitutionality of the provision (section 41 of the Juvenile Justice (Care
and Protection of Children) Act, 2000) per se, since the concept of adoption runs contrary to the
injunctions of the Holy Koran and their Personal Law.
Even among the Parsis the custom of naming a ‘palak’ for undertaking obsequies of a deceased
cannot be confused with adoption.
Hence, while it is true that the amendment of 2006 to the JJA 2000 has now defined 'Adoption'
under section 2(aa) to mean "the process through which the adopted child is permanently
separated from his biological parents and become the legitimate child of his adoptive parents
with all the rights, privileges and responsibilities that are attached to the relationship", in view of
what has been stated above Parsi parents adopting children are advised out of abundant
precaution to execute testamentary and other documents to ensure the child’s right of
inheritance.