The President has assented to the Personal Laws (Amendment) Act, 2010. The Act has amended the Guardians and Wards Act, 1890 and the Hindu Adoptions and Maintenance Act, 1956.
The PIB reports that the Act aims at bringing gender equality, in the matter of guardianship under the Guardians and Wards Act, 1890 and in the matter of giving in or taking in adoption of a son or a daughter by father or mother under the Hindu Adoptions and Maintenance Act, 1956.
Speaking with Bar & Bench, Senior Advocate Geeta Luthra said, “It’s an amendment which is begging the issue. Earlier the law provided that a man can adopt with the consent of his wife. This is saying a woman can adopt if she is going through divorce proceedings, but then she should not need the consent of the husband.”
“Consent of husband can’t be required if you are going through divorce proceedings. Husband is not going to give his consent. The moment you ask for your husband’s consent, you are begging the issue. If you are going through these proceedings for one year or six months to show there is some seriousness in the proceedings, then a women who wants to go for adoption should be allowed to do so on her own, because if you get back together then that child becomes your legal child and would have rights to both of the parents estate. Therefore, one has to look at the repercussions. In case the couple is childless, the women should be allowed to adopt and she need not take the consent of her husband. Therefore, consent of husband should not be required and in case a moratorium was required by the law to make sure that nobody can file a frivolous petition and thereby take a child in adoption. You could put a six-month moratorium that proceeding for divorce have been pending for six-months, to show that there is something in the matter, but consent should not be required from the husband”.
Geeta Luthra added “regarding the second part of the amendment, which makes both parents as guardians, there is a judgment of the Supreme Court in Githa Hariharan case, which says that when a man has abandoned his wife and where a man is not taking care of his child then the mother is deemed to be the legal guardian, but it’s nice that its being codified. Although law laid down by the Supreme Court is the law of the land, next is the legislation, which says both parents are equal as guardians”.
“A client of mine, Neena Deshmukh had challenged in the Supreme Court that once Article 14 and Article 15 are there, you can’t discriminate against a person on the ground that she’s a woman, then the Guardian and Wards Act cannot make the father the natural guardian. It should be the parent. It is bringing into force what the constitution envisages, she said.
She added on to say, “My only feeling is that it should not only be for Buddhists, Jains, Hindus and Sikhs, but it should be across the board for all. This is a time and period when the country cannot distinguish laws pertaining to human beings on the basis of personal laws. The time has come when we should slowly try and make the laws, without taking into account any religion, as long as you are not hurting the religious sentiments. The legislation today in 2010 has to be progressive, you can’t distinguish between religions in India”.
Under the Guardians and Wards Act, 1890 Section 19 (b) a mother was not included as a guardian along with the father. The Law Commission of India in its 83rd Report on the Guardians and Wards Act, 1890 and certain provisions of the Hindu Minority and Guardianship Act, 1956, had inter alia recommended amendments in clause (b) of Section 19 of the said Act to include mother along with the father for the purpose of removing the gender inequality.
By amending the 120 year-old Guardians and Wards Act, allows the mother along with the father can be appointed as a guardian, making the entire adoption process gender neutral. The Act provides for the mother to be appointed as a guardian along with the father so that the courts do not appoint anyone else in case the father dies. Also, in the Hindu Adoption Maintenance Act, the new amendment would allow a married woman separated from her husband to adopt with the consent of her husband even during the time of divorce proceedings. However, if he changes his religion or is declared to be of unsound mind, no consent from the estranged husband will be required.
The Asian Age also, reports that the Personal Laws Amendment Bill, 2010 - introduced in the Rajya Sabha on April 22 by Minister of Law and Justice Veerappa Moily. The Bill was referred to the Parliamentary Standing Committee on Law and Justice for eliciting public opinion. In its Report tabled before the Parliament, the committee recommended that the Personal Laws (Amendment) Bill, 2010 be passed in the same form. The Committee report said, “The committee is of the view that the amendments proposed in the Bill would place the mother on an equal footing with the father with respect to the right of guardianship and the right to adopt".
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