AIDWA

SC JUDGMENT REGARDING IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS A GROUNDS FOR DIVORCE

22 September 2009

The All India Democratic Women’s Association welcomes the Bombay High Court judgment allowing the adoption of a second female child by a couple, who already had a biological girl child. The couple had earlier obtained guardianship of the minor girl who had lived with them for four years. The court allowed the adoption by overriding the specific prohibition in the Hindu Adoption and Maintenance Act 1956, that a Hindu adoptive father or mother should not have a living Hindu daughter or a son’s daughter. In upholding the adoption the court relied upon the Juvenile Justice Act 2000, which contains no such restriction and allows adoption of orphaned, abandoned, or surrendered children by a couple or a single parent. The court held that the Juvenile Justice Act is a beneficent secular legislation and that beneficial legislation must be construed liberally. It rightly held that the right to life that the Juvenile Justice Act protects is the right of children who are in need of special care and protection and that adoption subserves the welfare of orphaned, abandoned and surrendered children. It also rightly held that the Act is secular and would apply to all persons irrespective of religious affiliations. While not overturning the provisions of the Hindu Adoption and Maintenance Act 1956, the court held that the later 2000 Act impliedly amends the Hindu Adoption and Maintenance Act to permit only the adoption of children who are orphaned, abandoned and surrendered.

AIDWA states that the right to be adopted is a basic human right of children and is in consonance with both Articles of the Indian Constitution and the Convention on the Rights of the Child. It demands that the government should enact a law to repeal Section 11(i) and (ii) of the Hindu Adoption and Maintenance Act ,which restricts adoption of a boy or girl, if the adoptive parents have a child of the same gender,  as the sub-sections militate against the basic human right of a child to grow in a secure and healthy environment.

 

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