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Monday, July 23, 2018

Family matters

On adoption, SC wisely draws a line between personal law and individual rights

Updated: February 21, 2014 3:42:08 am

The Supreme Court’s order giving religious minorities the right to legally adopt children, even if it contradicts personal laws, is a heartening step towards choice and freedom. So far, Muslims, Christians, Parsis and Jews were allowed to be guardians, not legal parents, and their children could not inherit property. Biological parents could assert their rights over the child. Now the court has affirmed that under the Juvenile Justice (Care and Protection of Children) Act amended in 2006, adopted children have the same “rights, privileges and responsibilities” as biological children, and Indian citizens of any religion can legally adopt them.

The judgment has clarified that personal laws cannot override civil laws and the rights they guarantee. “Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute,” ruled a bench headed by Chief Justice P. Sathasivam. This is a useful direction to set, at a time when talk of a uniform civil code tends to fall into pre-set political templates. While the BJP and other rightwing voices insist on effacing minority personal family laws, given that Hindu law has already been brought in line, minorities see it as an attempt to erase their right to live by the tenets of their religion, and their cultural distinctiveness. Political parties that are sensitive to minority rights often defend this point of view, even when it comes to siding with the patriarchs and elders —  as happened in the Shah Bano case. Given that much family law effectively hinges on the control and conduct of women, their rights to property, and matters of marriage, divorce and maintenance, abiding wholly by personal law often means depriving them of equality before the law.

Some have argued that it was unfair to burden Muslim women, for example, with the directive to choose between community and gender identities, and that there needs to be a stress on internal reform, apart from pressing for formal rights. Instead of contending with a strict binary of uniform civil code versus personal law, however, it may be more useful to approach specific issues as they arise, and weigh in between the demands of identity and of equal rights — as the Supreme Court has now done.

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