In the EPW dated October4-10, 2008, Ramachandra Guha whose article on modern Indian history invited a post here, provoked Nivedita Menon to join issue with him on issues of gender. Among other things, Menon questioned Guha’s thesis that the reform of Hindu family code in the 1950s ensured equal rights to women. Menon may have found fresh support to her criticism of Guha in a recent case before the Delhi’s Metropolitan Magistrate, Naveen Arora. While deciding a case between the biological parents who gave their child in adoption before their marriage and the foster parents, the Judge ruled that the adoption was invalid precisely because it violated Section 9(2) of Hindu Adoptions and Maintenance Act, 1956 and directed that the child be returned to his biological parents. According to this section, the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world (I wonder what this expression means) or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
Why the Act denies the mother the right to give in adoption with the consent of the father is difficult to explain, except in terms of the then law makers’ bias against women. In the case decided by the MM, it was the mother who gave the child in adoption to the foster parents, probably with the consent of the father. Right time to challenge the constitutionality of this section? Our law makers have recently found it necessary to reform the Hindu inheritance laws to ensure equal rights to women. It is a mystery why this provision did not attract their reformist zeal.
Venkatesan,
The law says that “…the father, if alive, shall alone have the right to give in adoption but such right shall not be exercised save with the consent of the mother…”
I am no lawyer but it seems to me that this implies that a decision to give away a child in adoption has to be a joint decision of the mother and father. To see this clearly, consider two scenarios:
(i) Father wants to give the child in adoption but mother does not In this case, the “save with the mother’s consent” clause becomes operational and the child cannot be given in adoption.
(ii) Mother wants to give the child in adoption but father does not In this case, father can choose not to exercise his right and thus prevent the child from being adopted.
Thus, the only scenario when a child can be given in adoption is where both mother and father agree. Now, can you clarify why you think this is gender biased?
I may be preaching to the converted here, but please see the link >
http://about-orphans.blogspot.com
Many thanks.
The effect of this provision is that unless both agrees, a child cannot be given in adoption. Similar iin the case of adopting a childj as well . This provision is Hndu law is as much gender biased as the notion that in law he shall mean she.
The headlines that appeared in HIndu, while reporting another judgment “Hindu woman can’t adopt child when marriage holds” is also equally misleading.
An article in Tamil on this can be read in my weblog
http://marchoflaw.blogspot.com/2008/03/blog-post_16.html
The reason this is gender-biased: While a Hindu adoption requires the consent of the wife/mother, there is no possibility for the mother to initiate the proceedings. The law does not recognize the woman as an entity that can initiate proceedings on behalf of the couple. Nor does the law allow or require both spouses to be EQUAL in status. The father is the person who decides and initiates, the mother consents and supports. This is equally true in the case of Hindu couples RECEIVING a child in adoption. As an adoptive mother, my status in the Hindu court was only as a supportive spouse, willing to abide by husband's decision and willing to do the work of raising the child. The purpose of this is to ensure that the child will be raised by a willing mother, and does not reflect equality of spouses in a family or equality of male and female in society.
Hindu adoption law, just as all Indian adoption laws are flawed, biased. Indeed all personal law is so. These laws must have been drawn up by unscholarly elements without higher thought, without guiding principles.
githa hariharan should be a good precedent to challenge it.