A Public Interest Litigation (PIL) has been filed in Supreme Court seeking framing of uniform guidelines for adoption and guardianship applicable to all citizens across the country.
Filed by advocate and BJP leader Ashwini Kumar Upadhyay, the plea urges the Top Court to direct the Centre to remove the present anomalies pertaining to the grounds of adoption and guardianship, and make them uniform for all citizens without discrimination.
Asserting that the current grounds of 'adoption and guardianship' are discriminatory, the petitioner further seeks directions declaring them as violative of Articles 14, 15 and 21 of the Constitution.
In this light, it is urged that grounds of religion, race, caste, sex, place of birth, etc. be removed in the spirit of our Constitution, and a 'Uniform Guideline for Adoption and Guardianship' be framed while considering the best practices as well as international conventions.
Elaborating on Part III and Part IV of the Constitution to discuss Fundamental Rights and Directive Principles of State Policy, Upadhyay argues that the State must ensure that equal opportunities are provided to all citizens by transcending diversities.
"However, despite the above well-expressed provisions, State has failed to provide uniform grounds of adoption and guardianship for all citizens", he submits.
"Therefore, petitioner is filing this PIL, seeking direction to Centre to remove anomalies in the grounds of Adoption and Guardianship and make them uniform for all citizens without bias on the basis of religion, race, cast, sex or place of birth in spirit of Articles 14, 15, 21, 44 and international conventions. Alternatively, being custodian of the Constitution and protector of fundamental rights, the Court may declare that the discriminatory grounds of Adoption and Guardianship are violative of Articles 14, 15, 21 and frame uniform guidelines for all", prays Upadhyay.
The contention of the petitioner is that the current process of adoption is based on grounds which discriminate on the basis of religion as well as gender. Despite being amongst the most important aspects of human life, claims the petitioner, India does not have a law which is gender or religion neutral. It is thus contended that in the absence of uniformity, adoption is a complex and cumbersome process. Throwing light on this, the petitioner elaborates on the issue as follows-
"Hindus Buddhists Sikhs Jains are dealt with Hindu Adoption & Maintenance Act and Hindu Minority and Guardianship Act and Muslim, Christian and Parsis have their own personal laws. Couples belonging to different religions have to seek adoption under the JJ Act 2000. NRIs, Overseas Citizens and foreign prospective adoptive parents, living in a country which is signatory to Hague Adoption Convention and wish to adopt Indian child, can approach Authorized Foreign Adoption Agency or concerned Central Authority as case may be and will be subject to be governed by Adoption Regulation 2017."
Buttressing his point regarding discrimination, Upadhyay highlights that Hindus have a codified law regarding adoption, while the Muslim, Parsi and Christian communities do not have any such provisions. He contends that even after 73 year of independence and 71 years of India becoming a democratic republic, Muslims, Christians and Parsis do not have adoption laws.
Claiming that this leads to confusion as well as different rights for adoptive parents and adopted children, it is informed that "adopted child has right to inherit property under the Hindu law but not under the Muslim, Christian and Parsi law. Adopted child by the Hindus can become a legal heir whereas adopted child by Christians, Muslim, Parsis cannot. Adopted child by Hindus turn equivalent to biological child of adoptive parents whereas it's just the opposite in Muslims, Christians and Parsis. Adoptive parents can be natural guardian of adopted son and his wife under Hindu Law but not in Muslim, Christian and Parsi Law."
The petition further seeks alternate directions to the Law Commission to prepare report on 'Uniform Grounds of Adoption & Guardianship' within 3 months, while considering the best practices of laws of adoption and guardianship along with international conventions.
The petition holistically contends that custody, guardianship, adoption, maintenance, minimum marriage age, grounds of divorce, succession and inheritance are the secular activities and therefore, it is the duty of the State to ensure that every citizen, including the third gender, has uniform right with regard to these activities.
"Uniformity is essential to secure fraternity, equality and dignity of child but State has not taken steps in this regard till date. Therefore, petitioner challenges blatant ongoing form of discrimination that is the discrimination in adoption and guardianship rights", argues the petitioner.
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