A Progressive UCC Must Protect The Child’s Best Interests

Relevance: GS2 - Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections. Indian Constitution, Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

(Source: The Hindu, 09/01/2023)

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Why in the news?

• This article discusses the need for an all-encompassing Uniform Civil Code that is based on the principle of the "best interests of the child" and not just issues like polygamy and divorce.
• It would help in custody disputes and protection from custody cases involving biological parents after adoption and "accused of rape" biological fathers seeking custody.

Child custody and the biological link

Redefining parental rights in custody disputes

• Indian laws, such as the Guardians and Wards Act, 1890, and the Hindu Minority and Guardianship Act, 1956, have traditionally favored fathers as natural guardians in custody disputes.
• Mothers are generally treated as the guardians after the father.
• In Githa Hariharan (1999), the Supreme Court ruled that the expression ‘after him’ meant ‘in the absence of’ and not ‘after life-time’ of the father.

Islamic Law's Unique Perspective on Custody

• Islamic law has recognized that custody is primarily a child's right, not solely that of the parents.
• Under Islamic law, the father is placed at a lower priority in the hierarchy for custody.
  • The mother, maternal and paternal grandmothers, sisters, maternal aunts, and paternal aunts of the child are prioritized for guardianship.
• It acknowledges that the paramount concern in custody and guardianship is the welfare of the child.
• E.g:
  • The Shafii and Hanbali schools give custody to the mother till the daughter’s marriage.
  • The Maliki school gives the mother custody of the male child till puberty and the female child till her marriage, after which the child gets the right to choose.

Complex Cases: Biological Parents and Adoption

Case 1: Adoption and Biological Parents

• In July 2023, the Bombay High Court ruled in favor of a biological father accused of rape under the POCSO Act and ordered the child's custody transferred to him despite the child already being adopted by another family.
• This raises questions about whether biological parents retain rights over the child even after adoption and whether such verdicts are in the best interests of the child.
• In 2022, the biological mother surrendered the child to the Child Welfare Committee (CWC) for adoption following which it was declared free for adoption by the CWS under Section 38(3) of the Juvenile Justice (JJ) Act, being an unwanted child of a victim of sexual assault.
• However, the High Court stayed the adoption proceedings and returned the child to the welfare home on the basis of a habeas corpus filed by the child’s biological father.
• Although the CWC rejected the father’s claim on the basis that custody would not be in the best interests of the child, the High Court handed over custody without hearing from the biological mother.
• The verdict has been criticized for not taking into consideration the best interests of the child or the emotions of the biological mother.
• It has been argued that the requirement that the rapist's father’s consent is necessary for such adoptions would set a wrong precedent and would not be in the best interests of the child.

Case 2: Biological Parents vs. Adoptive Parents

• In Nasrin Begum (2022), the Allahabad High Court granted custody of a child to her biological parents over her adoptive parents, despite the child spending six years with the latter.
• The family court had previously ruled in favor of the adoptive family on the basis of the child’s testimony and its best interests.
  • Article 2(2) of the Juvenile Justice Act, 2015 defines adoption as the process by which the adopted child is permanently separated from his biological parents and becomes the legal child of his adoptive parents with all rights, privileges, and responsibilities that are attached to a biological child.
• The decision of the High Court has been criticized for not considering the trauma of separation suffered by the child and the adoptive parents.
• The court prioritized the right of the child to know her real identity and the right of her biological parents to her custody.
• In the Iftiqar case (2021), the Bombay High Court ignored the fact that adoption was not valid in terms of Muslim law, while the Allahabad High Court used this principle in its verdict.

What are the concerns in adoption?

• These cases highlight the lack of clarity in custody disputes between biological and adoptive parents.
• Rules regarding adoption vary under different laws for different communities and other criteria such as gender, age, and marital status.
• In instances where the courts prioritize the claims of the biological parents over those of the adoptive parent, the child's best interests are not considered.
• This underscores the need for greater clarity on adoption and the rights of the adoptive parents.
• These cases challenge the existing legal framework and demand a more comprehensive approach to matters of custody.

The Role of a Progressive UCC

• A progressive UCC should not overly emphasize biological ties but rather protect the rights of adoptive parents.
• It should adopt a holistic approach to custody that goes beyond biological ties and focuses on the rights of adoptive parents' rights and diverse family structures.
• This approach will encourage adoption and prioritize the well-being of the adopted child.
• It must also break free from traditional concepts of matrimony and accommodate provisions that support guardianship rights for single parents, surrogate parents, and queer parents.

Conclusion

• India must prioritize the best interests of the child and redefine parental rights in custody disputes as part of its efforts to develop a modern and citizen-friendly Uniform Civil Code.
• In 2022, the Parliamentary Standing Committee on Personnel, Public Grievances, and Law and Justice released a report titled “Review of Guardianship and Adoption Laws," which advocated district-level surveys to find orphaned and abandoned children.
• India’s modern UCC should balance the rights of the biological parents and adoptive parents' rights while prioritizing the welfare of the child.
• A progressive UCC with contemporary values that guarantees equal rights to adoptive, surrogate, single, and queer parents in order to ensure that the legal system in the country is inclusive and compassionate.

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FAQs

MCQs

Question: Consider the following provisions under the Directive Principles of State Policy as enshrined in the Constitution of India:

1. Securing for citizens of India a uniform civil code.
2. Organizing village Panchayats
3. Promoting cottage industries in rural areas
4. Securing for all the workers reasonable leisure and cultural opportunities

Which of the above are the Gandhian Principles that are reflected in the Directive Principles of State Policy? (UPSC CSE 2012)

(a) 1, 2 and 4 only

(b) 2 and 3 only

(c) 1, 3 and 4 only

(d) 1, 2, 3 and 4