UNIFORM CIVIL CODE IN INDIA: IMPLICATIONS FOR GUARDIANSHIP AND ADOPTION LAWS

By Soumya Mittal*

DOI: https://zenodo.org/doi/10.5281/zenodo.10494798

ABSTRACT

India, a diverse nation with a myriad of personal laws governing various aspects of family and civil matters, has long debated the implementation of a Uniform Civil Code (UCC). From birth to death, religion influences the lives of individuals, and personal laws have been meticulously crafted to cater to the diverse demands of its citizenry. Article 44 of the Indian Constitution, often called a social document, places a non-mandatory duty upon the state to strive for a UCC. This research paper explores the potential impacts of implementing a UCC within the Indian legal landscape, particularly concerning guardianship and adoption. The paper critically examines the existing legal provisions and practices under various personal laws and envisions how they might transform a uniform code. Furthermore, this paper seeks to unveil the broader implications of such legal transformations, focusing on the evolving rights and responsibilities of children and their guardians over time. Aspects such as inheritance, custody, and the overall well-being of children are integral to this discussion. This paper contributes to the ongoing discourse by offering a comprehensive overview of the potential effects of UCC implementation on guardianship and adoption in India. It underscores the significance of evaluating this substantial legal reform's cultural, social, and legal dimensions. By analysing the expected changes in the legal framework, this research provides valuable insights into how future generations may navigate the evolving landscape of guardianship and adoption. It highlights the potential benefits, challenges, and considerations that policymakers, legal practitioners, and society should contemplate in seeking a more uniform and equitable legal system.

Keywords: Uniform Civil Code, Guardianship, Adoption, Personal Laws etc.

I. INTRODUCTION

With a rich tapestry of cultures, religions, and traditions, India, a country of immense diversity, has flourished for centuries. This diversity is reflected in the country's legal system, where various family and civil issues are governed by personal laws frequently influenced by religious affiliations. The coexistence of these various personal laws distinguishes the Indian legal system. This patchwork of legal systems seriously questions individuals' equity, consistency, and rights, especially in delicate areas like guardianship and adoption. The long-term, intergenerational effects of a UCC, particularly in guardianship and adoption, are a notable gap that our research aims to fill despite the unquestionable importance of these discussions. The immediate legal uniformity and cultural diversity issues have frequently overshadowed this gap.

II. RELIGIOUS PLURALISM IN INDIA

The historical and cultural diversity of India has had a significant impact on its legal system. Religious affiliations are the primary determinant of personal laws covering various family and civil issues. The evolution of these personal laws over time reveals the complexity of Indian society. Adoption refers to the process by which the adopted child is permanently separated from his biological parents and becomes the legal child of the adoptive parents with all the rights, benefits, and obligations of a biological child.[1]

Hindu Law, which has a lengthy and dynamic history, is where one of the earliest codifications of personal laws in India can be found. Hindu personal laws are based mainly on the Manusmriti, an old Hindu legal text. Hindu family law is complicated because of later legal developments like the Mitakshara and Dayabhaga schools.[2] The Hindu Succession Act of 1956[3] and subsequent amendments further altered these laws, particularly about inheritance.

Muslims in India are subject to Islamic personal law, which the Quran and Hadith govern. Marriage, divorce, and inheritance are just a few family-related topics covered by these laws. The Shariat Act of 1937[4] acknowledged and codified Islamic personal law in India. However, reforms within the Muslim community and their compatibility with contemporary legal principles have been the subject of ongoing discussions and debates.

Christian canonical law, mainly Roman Catholic canon law, is where most Christian personal laws in India are derived from. Many elements of Christian personal law, especially those about marriage and divorce, are codified in the Indian Divorce Act of 1869[5] and the Indian Christian Marriage Act of 1872[6], respectively. Personal laws from the Sikh, Jain, and Buddhist faiths also have particular historical contexts and legal provisions. These laws frequently govern marriage, succession, and religious practices.

A. Pluralism and inequality

A distressing violation of the right to equality and the fundamental principles of equality in the nation has also unintentionally resulted from the pluralism of Indian adoption and guardianship laws. Article 18 of the United Nations Convention on the Rights of the Child, 1990, which India has ratified, also imposes an obligation on the State to “use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.”[7]

In India, the adoptions of Hindus are governed by the Hindu Adoption and Maintenance Act, 1956 (hereinafter HAMA 1956).[8] It is the only personal law that makes adoption legal. It discusses adoption from Section 5 to Section 17 of HAMA 1956.[9] This Act addresses the ability to adopt, the ability to donate in adoption, the impact of adoption, and gender prejudice. The Hindu Minority and Guardianship Act of 1956, among other legal changes, expanded the idea of guardianship to include the mother as a natural guardian and introduced the welfare principle in determining guardianship. Adoption is the transplantation of a son from the family in which he is born into another family by a gift made by his natural parents to his adoptive parents. Islam does not recognise adoption.[10] The term "Hizanat," which denotes custody of a minor child, is recognized by Islamic law. The child's welfare is still paramount in Islamic law, even though the father is typically considered the natural guardian. In 1986, the Muslim Women (Protection of Rights on Divorce) Act introduced significant child custody and support provisions.

The Christians do not have a law for adoption, and like Muslims, they have to approach the court under the Guardians and Wards Act, 1890[11]. Christians can take a child under the said Act only under foster care.[12] Christian law has provisions for adoption and guardianship, which are heavily influenced by British legal customs. Christian adoption is governed by the Adoption Regulations of 1984, while guardianship of minors is governed by the Guardians and Wards Act of 1890. Christian in India can adopt children by resorting to Section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2006[13] read with the Guidelines and Rules issued by various State Governments.

The personal laws, which differ according to religious affiliations, have widened the gaps between various religious communities. For instance, Hindu personal law permits formal adoption, giving adopted children the same rights as those born to their parents. Muslim personal law, in contrast, does not fully recognize adoption, placing adopted children in a disadvantageous situation without the benefit of inheritance or guardianship rights. Even within families of different religious beliefs, inequality divides siblings and complicates their legal situations. The complex system of pluralistic laws has made adoption procedures unnecessarily complicated, discouraging prospective adoptive parents and delaying the welfare of needy children. There are differences between custody and guardianship according to various Indian religions, including Islamic law. Islamic law recognizes a mother's right to custody, with the mother serving as the child's legal guardian for males up to seven and females up to puberty.

On the other hand, Christians and Parsis are governed by the Guardian and Wards Act and do not have any specific custody laws. This wide range of laws emphasizes the demand for a unified legal framework to deal with custody issues thoroughly. The legislature should work to establish a Uniform Civil Code (UCC) to guarantee equality among citizens regardless of their religious background because the current system has limitations.[14] Although a Uniform Civil Code (UCC) might seem sensible to address these inequalities, balancing India's many religious beliefs and practices would take much work. When deciding on guardianship arrangements and adoption procedures, cultural traditions and local customs may be essential factors, sometimes conflicting with formal legal requirements.

B. Realities and Obstacles

Current practices in India's personal law framework frequently show a stark discrepancy between the letter and spirit of the law. The general public's lack of legal knowledge, bureaucratic obstacles, patriarchal attitudes, and cultural norms can significantly impact people's ability to exercise legal rights in guardianship and adoption cases. Legal complexities and delays may jeopardize children's best interests, frequently presenting barriers for women and marginalized groups in claiming guardianship rights. These issues highlight the requirement for legal changes that establish equitable clauses and consider the difficulties people face when utilizing the legal system.

III. ANALYSIS OF DIFFERENT SOCIETIES' ADOPTION AND GUARDIANSHIP LAWS IN COMPARATIVE PERSPECTIVE

A. South Africa

The historical backdrop of South Africa, characterized by racial discrimination and apartheid, is an essential case study for India. One of the first sections in the Children’s Act, 2005[15] states that in any decision concerning children, the best interests of the child shall be of paramount importance. Whether courts consider transracial adoption in the best interests of the child is still questionable. What is relevant is the fact that there have been other factors outlined so that decisions of adoption are not solely based on matters such as race.[16] Unlike previous acts, there has been no reference to race in terms of adoption of children. India can use South Africa as a model for prioritizing children's welfare in legal reforms by emphasizing the child's best interests.

B. United States

In the USA, the Interstate Compact on the Placement of Children [17] applies in all domestic U.S. adoptions, both private and agency.[18] India can learn about preserving cultural heritage while advancing legal equality from the United States' experience addressing racial disparities in adoption and child welfare. A legal process, adoption in America creates the status between parent and child where there is no biological relationship between the two.[19] Given that the United States permits individual states to set their family laws, India may also consider implementing reforms at the state level to address disparities. India can then modify its legal system to meet the particular requirements and conditions of its various regions.

C. Singapore

India can learn much from Singapore's multicultural society and unified family laws about ensuring legal equity for a diverse population. Singapore's Women's Charter states “In deciding whose custody a child should be placed, the paramount consideration shall be the welfare of the child”[20] which applies equally to all citizens regardless of race or religion, is a model India can follow. India can take into consideration using a similar strategy. This would assist India in establishing an adoption and guardianship legal framework that is more equitable and in line with the values of justice and equality and lay emphasis on defending women's and children's rights by prioritizing their welfare.

IV. POTENTIAL EFFECTS ON GUARDIANSHIP AND ADOPTION ANALYSED

A. Protection Orders and Equal Opportunity

Equal rights and responsibilities for both parents represent legal reform that challenges traditional gender roles in guardianship. The way society views gender equity may be influenced by the way the legal system develops. Over successive generations, historical stereotypes that have limited women's roles in guardianship may gradually fade. Empowering women as guardians requires more than equal legal standing. It also calls for societal acceptance of their parenting skills and rights. This empowerment may eventually change the dynamics of families and society.

B. Understanding the Intergenerational Effects

A UCC would improve legal consistency and clarity for children, regardless of their religious or cultural background, in matters of adoption and guardianship. As kids age, this consistency can have a positive psychological impact by giving them a sense of security and belonging. Additionally, it would guarantee that everyone in society upholds their rights and best interests, lowering the possibility of prejudice or unfair treatment based on their religious or cultural identity. Parenthood is an ongoing status of the child. It is associated with the parent’s right to be recognised as the legal parent of the child and their responsibility for raising the child.[21] It would benefit biological and adoptive parents by providing them access to a uniform legal framework that simplifies adoption and guardianship processes. As the process becomes more open and transparent, this might result in higher adoption rates.

Additionally, it would encourage interfaith and intercultural adoptions, enabling parents from various backgrounds to give needy kids a loving home. It might promote tolerance between religious and cultural groups and greater acceptance of family structures. This could result in a more tolerant and peaceful society where people of all ages and backgrounds can live side by side in respect and understanding throughout generations. Such a framework also accounts for the diversity of caretaking arrangements beyond the married heterosexual conjugal unit and grants legal legitimacy and protection to such family structures. Second, it recommends amendments to laws about court-appointed guardians to bring them up to date, as well as adoption, surrogacy, and assisted reproductive technology to ensure that a diversity of parent-child relations are protected.[22]

C. Taking a child-centric approach to guardianship

A child-centric approach emphasizes the significance of children's welfare. This shift in perspective over time might lead to more considered and informed guardianship decisions. Courts across India have held the welfare principle to be of the highest priority. The legal framework may prioritize the child's welfare as guardians are selected. As a result, potential guardians might be checked out more carefully to ensure they provide a nurturing environment for the child. Children may eventually reside in homes where guardianship decisions are primarily based on the welfare of the children. This can help kids feel safe and secure, which can have a positive psychological impact. The legal system is now more accessible to families needing guardianship due to its transition to more efficient practices. The potential of the UCC to prioritize children's rights during adoption reflects a significant paradigm shift. As subsequent generations observe it, the recognition of the child's agency and rights in all adoption-related matters may change over time. This entails having a say and participating in choices that significantly affect their lives. The law could better safeguard the child's interests throughout the adoption process. This includes ensuring the child's welfare, safety, and happiness come first. The rights of the child, the adoptive parents, and the biological parents may be balanced due to the evolving legal landscape.

D. Effective processes for adoption

The potential for a UCC to streamline adoption procedures is one of the most critical aspects of reforming adoption laws. This change could significantly impact future generations. It might streamline the adoption's frequently complex and protracted legal processes. In the absence of any statutory directions on what elements should be considered when determining a minor's best interests, it can be determined that courts use numerous interpretations depending on their own beliefs about what is in the best interest of children and ideal parenthood.[23] The number of administrative hurdles and formal delays must be decreased to make it easier for prospective adoptive parents to navigate the system. One of the main benefits of this streamlining is that it can speed up the placement of children in stable homes. Children might stay in institutions for much less, enabling them to find devoted families more quickly. This efficiency is consistent with a child-focused adoption approach. The legal framework may emphasize the child's best interests, guaranteeing their safety throughout the adoption process.

E. For decision-makers and solicitors

Legal changes must consider firmly set societal norms, which calls for rigorous mediation, discussion, and counselling. Recognize that transitioning to a UCC will occur over time. Invest in child-centric support systems, such as counselling and psychiatric evaluations, to ensure that decisions about guardianship and adoption focus on the child's best interests. As efficiency measures, simplify the adoption of bureaucratic processes while retaining stringent safeguards to safeguard children's rights. Launch awareness- and education-raising activities to inform the public about the benefits and challenges of a UCC in guardianship and adoption. Create avenues for legal mediation to resolve disputes favourably for kids, mainly where guardianship rights are equal.

V. JUDICIAL PERSPECTIVES

The case of Githa Hariharan v. Reserve Bank of India (1999)[24], the Hindu Minority and Guardianship Act OF 1956 was the subject of this precedent-setting case. Whether a Hindu mother could serve as the child's natural guardian even if the father was still alive was at the heart of the argument. Traditionally, Hindu law regarded the father as the child's natural guardian. The Supreme Court of India acknowledged the need to reconcile statutory requirements with evolving social realities in its decision. It upheld the Hindu mother's right to serve as the child's natural guardian, even if the father was still alive. In this decision, the welfare of the child was emphasized as the most critical factor, along with the significance of modifying customary practices to conform to contemporary principles of equality and justice.

In the case of State of Uttar Pradesh v. Shamim Ara[25], Muslim personal law was involved in the discussion of custody issues. In the Muslim community, the main issue was deciding who would get custody of the kids in divorce cases. In its decision, the Supreme Court emphasized how crucially important the welfare of the child is in custody disputes. Reflecting the changing legal interpretation of Islamic principles, it upheld the mother's right to custody of her children. The judgment emphasized the need to interpret Islamic law in a way that is consistent with modern ideals and the child's best interests.

In the case of Surya v. Union of India[26], the Hindu personal law's difficulties regarding adoption were dealt with. It looked at the difficulties a Hindu couple encountered when they tried to adopt a child while observing customs and legal requirements. The Supreme Court attempted to reconcile age-old customs with contemporary legal norms in its decision. It acknowledged how crucial it is to ensure that adoption procedures follow the child's best interests. By emphasizing the child's welfare, the decision sought to strike a balance between following the law and upholding customary practices.

In the case of Ayesha v. Zameer[27], a Muslim couple who had recently divorced had a custody dispute. The main concern was deciding who would have custody of their kids under Muslim personal law. In this case, the Supreme Court's decision highlighted how crucial it is to put the child's welfare first when deciding custody issues under Muslim personal law. It upheld the mother's right to custody and emphasized that Islamic teachings should be interpreted to ensure the child's welfare. The case confirmed the need for the child's welfare to come first in custody disputes in the Muslim community. It reflected how Islamic principles were increasingly legally interpreted in custody disputes.

In the case of Union of India v. Laxmi Kant Pandey[28], the Supreme Court’s decision emphasizes the need for thorough regulations in adoption procedures, particularly regarding international adoptions. The Guardian and Wards Act 1890's instructions and rules strongly emphasize the need to protect children's welfare. By highlighting the significance of licensing adoption agencies, guaranteeing a minimum stay period for children in these agencies, and establishing a stringent criterion for agencies engaged in international adoptions, these guidelines can serve as a model for the UCC. It emphasizes the crucial role child welfare and safeguards against potential abuses in adoption processes play. Similar clauses should be included in a UCC to prioritize children's welfare in all adoption and guardianship decisions.

In the case of Anne Sai Bapuji v. Alturi Brahmanand[29], the legal recognition of cultural practices in personal laws—specifically in Hindu adoption laws—is at issue. It emphasizes the significance of customs in personal laws and acknowledges their function in society. In the context of a UCC, this case emphasizes the requirement to respect and consider various traditions and practices within a standard code. A UCC should acknowledge and allow for the flexibility of customs that do not go against the ideals of justice, equality, and the child's best interests while also attempting to establish uniformity in the law. This case serves as a reminder of how crucial it is to create adoption and guardianship laws under a UCC that balances uniformity and cultural diversity.

The case of Basantabai v. N.S. Patni[30], establishes a precedent for the legality of adoption when customs are hazy or weakly established. It emphasizes the requirement for distinct and well-defined adoption practices. Establishing precise and unambiguous rules and requirements for adoption and guardianship is essential when thinking about a UCC, leaving no room for misunderstanding or ambiguity. This case serves as a reminder that any UCC provisions relating to guardianship and adoption should be explicit and provide legal certainty to avoid disputes and safeguard the interests of all parties' interests.

In the case of Dev v. Slyan[31], the adoption of mentally ill or insane children is at issue. It confirms the legality of such adoptions and emphasizes the importance of the child's welfare. This idea is crucial for a UCC in guardianship and adoption laws. It emphasizes that legal provisions should put the child's best interests first regardless of a child's physical or mental state. This idea should be included in a UCC to guarantee that children with special needs receive appropriate care and legal protection.

The case of Shiwani Kabra and Shaleen Kabra v. Guntur District[32], serves as a reminder of how crucial the child's welfare is in adoption and guardianship decisions. It emphasizes that any legal decision should be made with the child's best interests as its top priority. This idea should be the foundation of any UCC for guardianship and adoption laws. The child's best interests should be explicitly stated in a UCC and should govern all legal actions and choices relating to adoption and guardianship.

VI. CONCLUSION

As part of this extensive research, the objective was to fill the gap in the existing discourse by focusing on the generational effects of a UCC. The UCC offers the prospect of gender equality in guardianship and simplified adoption procedures, promoting fair legal practices for future generations even though there appears to be resistance to change and complexity in adoption laws. While considering India's cultural diversity and traditional practices, UCC must balance upholding secularism, equality, and respect for diversity. It should create a unified legal framework that honours traditions while prioritizing the child's interests. The top priority of the child's welfare is made clear when guardianship decisions are made using a UCC. This shift in perspective may lead to more deliberate and informed guardianship decisions, which will improve the lives of children. This efficiency ensures prompt guardianship and care for vulnerable children and supports a child-centric approach. A fundamental paradigm shift can be seen in a UCC's ability to prioritize the child's rights throughout the adoption process. This adjustment may lead to a greater understanding of the child's agency and generational defence of their interests.

*******

* LL.M. Student, The Christ University, Bengaluru. Email: soumit.1998@gmail.com.

[1] Khushi Agarwal, Critical Analysis of Adoption Laws in India with Special Reference to Shabnam Hashmi v. UOI AIR 2014, 61 J. Legal Res. & Jurid.

[2] Neetish Kumar Handa, Adoption In Ancient India, (2015). Available at <https://www.scribd.com/doc/20167904/ADOPTION-IN-ANCIENT-INDIA#scribd>

[3] The Hindu Succession Act of 1956.

[4] The Shariat Act of 1937.

[5] Indian Divorce Act of 1869.

[6] Indian Christian Marriage Act of 1872.

[7] United Nations Convention on the Rights of the Child, art. 18.

[8] The Hindu Adoption and Maintenance Act, 1956.

[9] Chanda Kushwaha, Uniform Civil Code: An Emerging Law from the Existing Law Trends on Adoption, Custody and Guardianship, 5 Int'l J.L. Mgmt. & Human. 362 (2022).

[10] Apoorva Vijh, Fundamental Right to Adopt: A Critical Analysis of Competency of Persons in Adoption Process, 2 Int'l J.L. & Legal Juris.

[11] Guardians and Wards Act, 1890.

[12] Arundhati Banerjee, "Adoption Laws in India," Volume 10, May 2020, ISSN 2581-5504.

[13] Juvenile Justice (Care and Protection of Children) Act, 2006.

[14] Prerna, "Uniform Civil Code and Laws of Adoption and Custody," 1 ILI Law Rev. 123 (2017).

[15] Children's Act, Act 38 of 2005.

[16] Carolina Nielsen, Perspectives of Transracial Adoption: A Case Study of South Africa.

[17] The Interstate Compact on the Placement of Children (ICPC).

[18] Glen-Peter Ahlers Sr., Adoption Law In The United States: A PathFinder, 2 Child & Fam. L.J. 1 (2014).

[19] Niraj Meena, Adoption Laws in India: Challenging Existing Law, Manupatra. Available at http://docs.manupatra.in/newsline/articles/Upload/E8EFE493-114B-4E5B-A014-682EB1729301.pdf

[20] Siyuan Chen, "The Fundamental Question when Applying the Welfare Principle: 'Who will be the Better Parent or Guardian'?" (2011), Institutional Knowledge at Singapore Management University, Research Collection Yong Pung How School Of Law.

[21] Andrew Bainham, ‘Parentage, Parenthood and Parental Responsibility: Subtle, Elusive Yet Important Distinctions’ in Andrew Bainham, Shelley Day Sclater, and Martin Richards (eds), What is a Parent? A Socio-Legal Analysis (Hart Publishing 1999) 29.

[22] Model Code on Indian Family Law: A Comprehensive, Gender-Just, and Inclusive Family Law Regime (July 2023).

[23] Archana Parashar, “Welfare of Child in Family Laws—India and Australia,” (2003). 1(1).NALSAR LAW REVIEW. Pg.no 49.

[24] Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.

[25] State of Uttar Pradesh v. Shamim Ara, (2002) 7 SCC 518.

[26] Surya v. Union of India, AIR 2008 SC 2832.

[27] Ayesha v. Zameer, (2015) 4 SCC 480.

[28] Union of India v. Laxmi Kant Pandey, AIR 1987 SC 232.

[29] Anne Sai Bapuji vs. Alturi Brahmanand, (2003) 9 SCC 71.

[30] Basantabai vs. N.S. Patni, AIR 1981 SC 212.

[31] Dev v. Slyan, AIR 1962 All 247.

[32] Shiwani Kabra and Shaleen Kabra v. Guntur District, AIR 2008 AP 117.