At a time when the government may bring in a Uniform Civil Code (UCC) by holding a special session of Parliament on September 18-22, 2023, there is a need to think beyond polygamy and divorce and other such issues. A UCC cannot confine itself to merely changing the rule of the father being the natural guardian. It must go beyond this and provide for, in unequivocal terms, the ‘best interests of child’ principle in all custody disputes. It must deny absolute rights of biological parents vis-à-vis adoptive parents.
The Guardians and Wards Act, 1890 considers the welfare of the child as the prime consideration in the determination of custody. Section 6 of the Hindu Minority and Guardianship Act, 1956 declares the father as the natural guardian and ‘after him’ the mother; the mother would ordinarily have custody till the child attains five years of age. The person would lose custody if she/he ceases to be Hindu. In Githa Hariharan (1999), the Supreme Court of India held that the expression ‘after him’ does not necessarily mean ‘after life-time’ of the father but, instead, ‘in the absence of’.
Child custody and the biological link
Interestingly, custody under Islamic law is the right of the child and not of the parents. In fact, the father is at number six in terms of the right to custody after the mother, mother’s mother howsoever high, paternal grandmother, sister, maternal aunt and paternal aunt. Under the Hanafi school, the mother does not lose custody after she ceases to be a Muslim.
Islamic law gave custody to the mother till a boy attains seven years and a daughter till she is 17, under the Hanafi school. The Shafii and Hanbali schools gave custody to the mother till a daughter is married. Under the Maliki school, the mother gets custody of even a male child till puberty and female child till her marriage. Thereafter, the child gets the right to make a choice.
Let us consider the issues that are far more complex than custody claims between father and mother — i.e., the claims of biological parents after adoption, and of an ‘accused of rape’ biological father. Indian courts are attaching greater importance now to the claims of biological parents in preference to adoptive parents without due consideration to the best interests of the child. On July 26, 2023, two women judges of the Bombay High Court ordered that the custody of a child who had already been adopted to be given to the biological father (he is accused of rape which resulted in this child being born). In October 2021, the 17-year-old biological mother on realising that she was pregnant is alleged to have eloped with him, and gave birth to a boy on November 26, 2021. Based on a complaint by the minor mother’s father — alleging rape and various crimes under the Protection of Children from Sexual Offences Act (POCSO) Act, 2012 — the biological father was arrested but was granted bail later.
The mother and child were sent to a home in Mumbai. In 2022, the biological mother got married to another person and in the larger interests of the child, surrendered the boy to the Child Welfare Committee (CWC) for adoption. The child, under Section 38(3) of the Juvenile Justice (JJ) Act, being an unwanted child of a victim of sexual assault, was declared free for adoption by the CWS. He was handed over to his adoptive parents on January 3, 2023.
Surprisingly, on the biological father’s habeas corpus petition, the High Court stayed the adoption proceedings and despite the trauma to the child and adoptive parents, the child was returned to the shelter home. In July, the CWC rejected the biological father’s application for custody on the ground that a biological father cannot take advantage of his own crime and giving custody to him would not be in the best interests of the child. On July 26, the High Court handed over custody of the child to the biological father without hearing the biological mother. The alleged love story is the version of the father and not of the mother who, under Section 164, had said that she was coerced to go with him and that the sexual relationship was not consensual. Unfortunately, neither the best interests of the child nor the biological mother’s emotions were taken into account. The mother was opposed to giving the child to the biological father. The requirement of consent of the rapist father in such adoptions would set the wrong precedent.
A case of adoption
Similarly, in Nasrin Begum (2022), a two-judge Bench of the Allahabad High Court gave the custody of a girl child to her biological parents in preference to the rights of the adoptive parents who, under a notarised deed, had adopted a three-month-old child. The family court on the basis of the testimony of the child, now six years old, and in the best interests of the child, had decided in favour of the adoptive parents. The biological parents asserted that mere custody for sometime was given to the adoptive parents. Does not Section 2(2) of the JJ Act provide that adoption completely severs the ties between the biological parents and the child?
Why would any parent leave a three-month-old child in another country without the child being given in adoption?The family court rightly concluded that children cannot be treated as the ‘chattel and property’ of their biological parents and she should not undergo the trauma of separation from her adoptive parents who had given her all the love and care over six years or so. The High Court overlooked the fact that the biological parents had spent the summer vacations every year from 2014 to 2018 with the child and the allegation of a denial of visitation by them was not made out from the facts. In fact, the adoption deed did not contain any visitation rights by the biological parents.
The trauma which a child and its adoptive parents would undergo was not given much consideration though the court did acknowledge that the child would ‘undergo some difficulty’ in the beginning due to separation from the adoptive parents. The court gave much importance to the right of the child to know her real identity and the right of her biological parents to her custody. The court moved on the premise that there was no legal adoption and, therefore, the adoptive parents having no right in respect of the child. But the Bombay High Court in Iftiqar (2021) ignored that the fact of adoption was not valid in terms of Muslim law. The court in the interests of the child had refused to give custody to the biological parents as the adoptive parents were given a five-day-old child; it was only because of their care that the child recovered from jaundice.
A progressive UCC should not overemphasise biological ties. It must protect the rights of adoptive parents; otherwise people would not adopt children. Similarly, it should not insist on the matrimonial bond between parents and should ideally make provision of guardianship even for a single parent, surrogate parent and queer parents.
Faizan Mustafa, a constitutional law expert, is currently the Vice-Chancellor of the Chanakya National Law University, Patna, Bihar
