Saturday 27 June 2015

Daughter adoption and Law Commission Report

Why in News?

  • The "incongruous" discrimination in HMGA against the adoptive parents of girls is among the gender anomalies highlighted in May 2015  - latest report of the Law Commission.


  • Female orphan adoption is rising yet law is not good exemplified by Section 7 of the Hindu Minority and Guardianship Act, 1956 (HMGA) which provides "natural guardianship" only for an adopted son - It is so because of traditional notion that adoption was meant exclusively for those who didn't have a biological son. 
    • The saving grace is that shortly after the enactment of HMGA, another law -the Hindu Adoption and Maintenance Act, 1956 (HAMA) -conferred recognition on adoption of daughters too. 
      • These acts were passed with very closely in time showing that the Nehru government's gender consciousness had evolved a great deal in the span of a few months. 
      • The conflicting signals from the two laws remain unresolved, so the commission therefore recommended that Section 7 of HMGA be amended to bring it "in consonance" with HAMA. 
Father is considered first guardian and mother second - not equal
  • HMGA, Section 6 deals with natural guardianship of a biological child in respect of their person as well as property. It says that the natural guardian of a Hindu minor is "the father, and after him, the mother". This formulation was interpreted to mean that as long as the father was alive, the mother could not aspire to the status of a natural guardian of her children. 
    • Law commission in 1989 suggested to change this though the Law commission found nothing wrong in this in 1980

Sharing custody 
  • As a corollary to the proposal of giving equal rights to the father and the mother in regard to guardianship, the commission for the first time suggested joint custody. Since this is fraught with the risk of further friction, the commission also proposed elaborate guidelines to ensure that joint custody is ordered keeping the welfare of the minor as the paramount consideration.


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