- A special session of the Parliament from September 18-22, 2023 is expected to bring in a major change in the form of Uniform Civil Code.
- However, there is a need to think beyond most talked issues like polygamy, divorce and the father being the natural guardian.
- There is a need to specially deal with custody dispute cases and uphold the best interests of the child in all such cases.
- Indian Polity-Directive Principles of State Policy
- Social Justice- Issues related to children
The Uniform Civil Code needs to look beyond issues of marriage and divorce and ensure a fair chance to adoptive parents in cases of child adoption. Analyse. (10 marks, 150 words)
Important legislations and judgments in this regard:
- The Guardians and Wards Act of 1890 gives paramount importance to the well-being of the child when determining custody.
- According to Section 6 of the Hindu Minority and Guardianship Act from 1956, the father is recognized as the natural guardian, and after him, the mother. Typically, the mother would have custody until the child turns five years old. However, if the person no longer adheres to the Hindu faith, they would lose custody rights.
In the Githa Hariharan case of 1999, the Supreme Court of India clarified that the phrase ‘after him’ doesn’t necessarily mean ‘after the father’s lifetime,’ but rather signifies ‘in the father’s absence.’
Custody of the child and its biological connection
Notably, within Islamic legal principles, custody is vested in the child rather than the parents. In fact, the father’s claim to custody ranks sixth, following:
- the mother,
- maternal grandmother regardless of status,
- paternal grandmother,
- maternal aunt,
- and paternal aunt.
Various schools of Islam and associated child custody rules:
- In the Hanafi school of thought, the mother retains custody even if she converts from Islam. In Islamic law, custody is granted to the mother until a son reaches the age of seven and a daughter reaches the age of 17 according to the Hanafi school.
- The Shafii and Hanbali schools grant custody to the mother until a daughter is married.
- In the Maliki school, the mother maintains custody of a male child until he reaches puberty and a female child until she is married. Following this period, the child gains the right to make their own decision regarding custody.
Complex cases of custody:
Let’s examine complexities that extend beyond custody disputes between parents—specifically, the intricate situations involving biological parents post-adoption and instances where a biological father is accused of rape. Presently, Indian courts are according more weight to the claims of biological parents, prioritizing them over adoptive parents, without adequately considering the child’s best interests.
Case study 1
- On July 26, 2023, two female judges of the Bombay High Court ruled that a child who had already been adopted should be placed in the custody of the biological father (who stands accused of causing the child’s conception through rape).
- In October 2021, the 17-year-old biological mother, after discovering her pregnancy, allegedly eloped with the accused, leading to the birth of a boy on November 26, 2021. Following a complaint filed by the minor mother’s father, which alleged rape and violations under the Protection of Children from Sexual Offences Act (POCSO) of 2012 , the biological father was arrested and later granted bail.
- Subsequently, the mother and child were placed in a Mumbai facility. In 2022, the biological mother married another individual and, in the child’s best interests, relinquished the boy to the Child Welfare Committee (CWC) for adoption. The CWC, in accordance with Section 38(3) of the Juvenile Justice (JJ) Act, declared the child as available for adoption, given that he was the child of a victim of sexual assault and was unwanted. On January 3, 2023, the child was handed over to his adoptive parents.
- Surprisingly, the High Court granted a stay on the adoption proceedings based on the biological father’s habeas corpus petition, and despite the resulting distress to the child and the adoptive parents, the child was returned to the shelter home. In July, the CWC rejected the biological father’s custody application on the grounds that a biological father should not benefit from his own criminal actions, and awarding him custody would not align with the child’s best interests.
- On July 26, the High Court awarded custody of the child to the biological father without hearing from the biological mother. The narrative of an alleged romantic relationship was provided by the father, and it does not correspond with the mother’s account. According to Section 164, the mother had stated that she was coerced into going with him and that the sexual relationship was not consensual.
- Regrettably, neither the child’s best interests nor the biological mother’s emotions were adequately considered. The mother opposed handing over the child to the biological father. Requiring the consent of a rapist father in adoption cases could establish an inappropriate precedent.
Case Study 2
- Similarly, in the Nasrin Begum case of 2022, a two-judge panel from the Allahabad High Court awarded custody of a young girl to her biological parents over the claims of adoptive parents who had legally adopted the child when she was just three months old, as evidenced by a notarized deed.
- The family court, taking into account the child’s testimony—now six years old—and considering the child’s best interests, had ruled in favor of the adoptive parents. However, the biological parents argued that temporary custody had been granted to the adoptive parents. This happened despite the fact that the Section 2(2) of the Juvenile Justice (JJ) Act clearly asserts that adoption severs all ties between biological parents and the child.
- The family court appropriately determined that children shouldn’t be treated as mere possessions of their biological parents, and it wouldn’t be in the best interest of the child to undergo the trauma of being separated from the adoptive parents who had provided love and care for over six years.
- The High Court failed to consider that the biological parents had spent summer vacations with the child every year from 2014 to 2018, and there was no substantial evidence to support claims of denied visitation. Interestingly, the adoption deed didn’t include any provisions for visitation rights by the biological parents.
- The potential emotional distress experienced by the child and her adoptive parents didn’t seem to receive significant attention, despite the court’s acknowledgment that the child would encounter initial challenges due to separation from the adoptive parents. The court emphasized the child’s right to know her true identity and her biological parents’ right to custody. The court operated under the assumption that no legal adoption had taken place, thereby negating any rights of the adoptive parents regarding the child.
- However, the Bombay High Court’s decision in the Iftiqar case of 2021 disregarded the fact that the concept of adoption wasn’t valid according to Muslim law. In the interest of the child’s well-being, that court had refused to grant custody to the biological parents, considering that the adoptive parents had taken in a five-day-old child, and it was their attentive care that aided the child’s recovery from jaundice.
A forward-looking Uniform Civil Code (UCC) should avoid placing excessive emphasis on biological relationships. Its focus should include safeguarding the rights of adoptive parents to encourage adoption. Similarly, it shouldn’t rigidly require a marital connection between parents and should ideally ensure provisions for guardianship, encompassing single parents, surrogate parents, and LGBTQ+ parents.