BJP leader files PIL in SC seeking "uniform grounds" for adoption and guardianship

New Delhi: BJP leader files a Public Interest Litigation (PIL) seeking removal of anomalies in the grounds of adoption and guardianship and making them uniform for all citizens has been filed in the Supreme Court.

The plea is filed by advocate Ashwini Upadhyay, who is the spokes person of Delhi BJP. The petition has also sought directions to declare that the "discriminatory grounds" of adoption and guardianship are violative of Articles 14, 15, 21 of the Constitution and to frame "uniform guidelines" for adoption and guardianship for all citizens.

The PIL, filed through advocate Ashwani Kumar Dubey, contended that the current practice of adoption is blatantly discriminatory as Hindus have a codified law of adoption but Muslims, Christians, and Parsis do not have it.

"Muslims, Christians and Parsis can take a child under the said Act only under foster care. Once a child under foster care becomes major, he can break away all his relations. Moreover, such a child doesn't have the legal right of inheritance, which creates a lot of hardship and confusion among citizens, which can very easily be solved by having uniform law of adoption and guardianship for all citizens," the plea said.

The petition said in the case of Shia Muslims, the mother is entitled to the custody of a boy until the age of two years and girl until she attains seven years of age if parents are separated.

"The custody after the prescribed period dwells upon the father and after him to grandfather how high soever. The rationale given is that after birth, the mother might have custody of the child but the father has the guardianship, entitling him for the right to take any decision for the future of the child," the petition stated. It said the father has the ultimate authority to decide matters regarding the future of the child, be it education or contracting marriage. "That is why mother living far from the residence of the father was one of the grounds for disqualification of the mother for taking custody," it said.

Referring to Christians, the plea said that they have no adoption laws and have to approach the court under the Guardians and Wards Act, 1890. Christians can take a child under the said Act only for foster care. Once a child under foster care becomes major, he is free to break away all his relations and also he does not have the legal right of inheritance, it said.

"Parsi law also does not recognize adoption. In the present world when society has changed a lot, the present law does not meet the requisite demand. Section 49 provides that the court has the power to decide interim custody of the child. The court can prescribe such terms and conditions, which it deems necessary for the welfare of the child," the PIL said

The PIL stated that adoption and guardianship is one of the most important and crucial aspects of human life but even after 73 years of independence, India does not have a gender-neutral and religion-neutral law of adoption and guardianship for all citizens.

The plea also sought directions to the Law Commission to prepare a report on 'Uniform Grounds of Adoption & Guardianship' within three months, while considering the best practices of laws and international conventions.

Earlier,the same petitioner had filed a PIL in SC seeking 'uniform grounds of divorce' for all citizens throughout India.

The plea filed on 16th August 2020, had sought directions to the Centre to take steps to remove anomalies in divorce laws and make them uniform for all citizens without prejudice on the basis of religion, race, cast, sex or place of birth.

The plea had also sought direction from SC to the Law Commission of India to examine the laws of divorce & suggest 'Uniform Grounds of Divorce' for all citizens.

Being a serial litigant using PIL, Ashwini Kumar Upadhyaya had earlier filed PILs on issues that are on top of his party's agenda — such as yoga, Vande Mataram and nikah halala.

(With inputs from PTI)