This article deals with adoption and its changing trends, with special attention given to single motherhood and the reactions that they get from the society and jurists.
A growing tribe of unmarried and financially independent women choose adoption as the better alternative. Single mothers are no longer the rarity that they used to be some years ago. Figures show that more than 20 such women in Mumbai, 10 in Delhi and around 25 in Calcutta are at the core of a happy trend. Once a rare occurrence, applications from single mothers to adoption agencies are now pouring in. Considering this a recent phenomenon there are anywhere between 50 and 70 such single mothers in the country today which is an impressive number.
Britannica Encyclopedia says adoption is the status or legal relationship of parents and child who are not related by nature but established or created by law. Looking into the history, Hammurabi’s code laid down strict rules for the adoptee (child) for paying due diligence to the new family and all rights of the biological family was to be severed. There are several tales in Indian mythology that show the concept of raising a stranger child had always existed. Moreover, it is thought to be the duty of every Hindu to provide continuance and solemnization of necessary rites on his ancestors’ death, as observed by the Privy Council in the case of Rama Sabbaha v. Chenchurmmayya. In China, a girl was adopted for being made their future daughter-in-law and a boy for obtaining an heir. Traditional adoptions involved private arrangements between extended families, adoption outside these extended families were less common. Unlike all this today the right of adoptee is placed at the center of the institution. From Civil Rights Movement to Child’s Right Movement to Child Welfare Services to Residential Care for Children all indicate the radical changes in adoption law.
The Indian legislature is fully sensitized and committed to the rights and welfare of children. The proof being the Constitution of India under Article 24 that provides for the right against exploitation of the children below 14 years, M.C. Mehta v. State of Tamil Nadu & Ors (1991 AIR 417) proved this. Article 45 envisages for free and compulsory education of children. At the International level, India has ratified the Convention on the Rights of Child and the Hague Convention on Inter-country Adoption of Children. At national level, India has prepared a National Policy for children, 1974 under which Ministry of Women and Child Development has got the mandate to enact laws regarding welfare of children. The Juvenile Justice (Care and Protection of Children) Act, 2000 incorporates provisions of adoption of child as an alternative to institutional care. Women laws are also protected in our country. The preamble provides for the rights of all citizens justice, social, economical, political, equality of status and opportunity. Article 14 orders equality before law or the equal protection of law or administrative action. Article 15 prohibits discrimination against any citizen on the grounds of religion, race, caste, sex or place of birth. The legislature is trying to secure equality in society and remove evils to empower the weaker sections.
Society thought single motherhood to be a curse but the present scenario helps create a difference in this backwardness. Earlier, husband’s assent was compulsory for adoption. Also women did not have any right and were deemed to act merely as an agents, delegates or representative of their husbands. The Karnataka High Court in Lalitha Ubhayakar v. Union of India (AIR 1991 Kant 186) decided that the husband’s consent is mandatory for adoption; requirement was not violative of Article 14.
In a patriarchal society like ours, where among Hindus there is a Karta and in Islam, women are mostly pardanashin, another bitter truth remains unchanged i.e. the natural guardianship is granted first to the father except in cases of illegitimate boy or illegitimate unmarried girl. In Jijabai Vithalrao Gajre v. Pathankar, the father never took interest in the daughter’s development, the court decided that in such circumstances he should be treated as non-existent and the mother was granted guardianship. Same kind of decision can be observed in Githa Hariharan v. Reserve Bank of India (1999 2 SCC 228) where the mother was given the guardianship of the child because of father’s incapacity and indifference. It would be needless to say that after the father, natural guardianship passes by default to the mother. ‘Guardianship’ is always confused with ‘Custody’. In Imambandi v. Mustsaddi (1918 20 BOMLR 1022) these two find a difference where the court said under Muslim law women are confined only to custody and not guardianship considering the age and sex of the child, but a father alone can be the natural guardian whose death leaves the child with a legal guardian. This provision indicates disparity. When it comes to the question of custody, child’s welfare is of paramount importance, both financially and emotionally. After the above discussion it is clear that even law agrees that mother is the best supplement for father, difference being the financial support expected is less compared to the male counterpart. But the recent development has placed the women at par with men leaving no arguments for the allies for not letting women take the guardianship as well as the custody of a child.
The Hindu Adoption and Maintenance Act, 1956 contains the basic rules for adoption; requisites provided in Section 6. It has always allowed single women or men to adopt babies though it is not mentioned in bold. In the simplest translations, these laws permit any adult to adopt a baby and there are no specifications about marital status. Law never being a hurdle, trend simply mirrors a greater openness in society. In fact, adoption agencies worry more than anything else on domestic infrastructure. From widows to divorcees and the unmarried women, almighty has designed them all to be called “mothers”. Lord Krishna is known as Yashoda’s Nandan even though his birth mother was Devki. So what if they have not endured the pain of childbirth, the travails of being a mother remain the same.
In the US, single motherhood is a common phenomenon as the living standards are high, providing better means to survive. Another factor is high divorce rates. Laws regarding adoptions are provided by the Adoption and Safe Families Act, 1997, the International Soundex Reunion Registry, TRIADOPTION Archives, Concerned United Birthparents, American Adoption Congress and the ALMA Society there. The UK in its common law system had a conflict regarding property and adoption policy that no transfer was allowed without blood lineage but now the law and the people have encourage these single mothers’ urge. The Adoption & Children Act 2002 calls in for the rules on adoptions by sole parents.
Single motherhood stems from a desire to make ones life more meaningful giving full time to career, increasing self respect and avoiding the conflicts that often arise in marital life. These independent women have been used to taking all their decisions themselves believe strongly in the concept of a family and rely heavily on their extended families for all sorts of things. At the beginning the grandparents seem to be an obstacle but with time they not only accept the change but also seem to love the company of the new family member. These women don’t believe in compromises and this becomes possible because they are emotionally and financially independent. The family they have known becomes a reason to create a new one of their own, marriage not being the ultimate choice.
The social stigma attached to single mothers is very difficult to do away with. Also its recent origin is a hurdle for its acceptance. Orphanages feel the child is being denied the natural right of getting the love of both parents. They fail to realize that something is better than nothing, not to forget that mothers are the most essential ingredient in the growth of a child, whether in a marriage or out of it. Peer group teasing is another drawback. Wrestling with queries about a non-existent father is a big depression for the child. For the mother, the struggle to balance work and home becomes like a challenge and the initial opposition from family members is an offset. Cases also show that, in the past, forms were denied for admissions to educational institutions and other offices without the fathers’ signature or name which has been over-ruled by the court. Detractors accuse such mothers of selfishness for not providing the adoptee a father and an intact home. Others erroneously cite statistics linking single motherhood to a variety of potential social ills for their child. A single woman may even have to develop newfound courage to conquer her inner demons and alleviate her previously held thoughts and beliefs about adoption. Until the society fails to accept this change all this and many other problems come into being. Now, a woman does not require a man’s support to survive. She is becoming self sufficient and where there is a set-off the law comes in with an aid to rescue such aspiring women. The children need the love of a mother to grow and nurture into good human beings and where the law does not deny the truth it is high time for the Indian society to accept the change and welcome such single mother with arms wide open because the law is nothing but the mouth-piece of the society.
Amity Law School, Amity University, Noida
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]