IS five-year-old Sandhya the Kulkarnis' daughter or ward? This question came up when on December 3, a division bench of the Mumbai high court ruled that Sandhya could only be the Pune-based couple's ward since they already have two biological children and an adopted daughter. Sandhya's 'guardians', dismayed by the judgement, intend to take matters to the Supreme Court. Bolstering their resolve is the National Association of Adoptive Families (NAAF) which may file a special leave petition.
The Kulkarnis, who can't fathom why Sandhya should be denied the recognition her three siblings have as heirs, enjoy the support of others equally aggrieved by the 1956 Hindu Adoption and Maintenance Act (HAMA) which disallows adoption of a second child of the same sex. Gaurang Mehta, founder of NAAF, empathises with the Kulkarnis. Of his two adopted girls, six-year-old Romaana is recognised as his daughter, while three-year-old Aarshna is only a ward.
Sudhir Kulkarni fondly recalls how Sandhya came to be part of his family. His wife Marilyn, a US citizen, was a frequent visitor to the Sasoon Hospital's Society of Friends, having adopted Shanti from there. Even as other destitute children found good homes, Sandhya couldn't because of a medical report suggesting a hole in her heart. "We decided to adopt her, though we were warned under HAMA that we could only adopt her under Guardians and Wards Act, 1890." But the Kulkarnis were always uncomfortable with the dichotomy in their children's status. For one, there's the ungainly 'alias' tag—Sandhya alias Supriya. "As if she's a criminal. Since she can't assume our surname, it's a problem explaining to embassies while applying for her visa." Then, the family court's permission is a must, under the Guardians Act, even if she has to leave Pune for a picnic. Worse, she has no claim on the Kulkarnis' property.
And so they moved the courts in '94. Only to have the division bench comprising judges Ashok Desai and S.S. Parkar deciding the provisions were not "unjust or unfair". According to the judges, unlike Islam, Christianity or Zoroastrianism which don't recognise adoption and whose followers have to avail of the Guardians Act, only the Ancient Hindu Law permits adoption since the "predominant mythological design was to have a son, even by adoption, to perform the last rites so that the deceased could avail moksha and also to continue the generation of the adoptive parent." Subsequent amendments allowing girl child adoption were deemed revolutionary. But the judges felt it was right to restrict a person "from having a second son or daughter by adoption", since HAMA, "with its...secular mission has stood the test of time." They accepted the contention of additional solicitor general Rafique Dada, appearing for the Union of India, that "unlimited choice in the matter of adoption would be totally inappropriate."
Advocate Anand Grover, who represented Sandhya and the Kulkarnis, argued HAMA infringed upon Art. 14 (equality to every citizen) and Art. 21 (right to life) by denying Sandhya her status within the family and denying the Kulkarnis legal parenthood as well as restricting their right to have any number of adopted children. Advocate Satyajit Bhatkal, who intervened on behalf of the Indian Association for the Promotion of Adoption (IAPA), agreed: "It's retrograde since it discourages multiple adoptions, and thus disregards the large number of destitute children (reportedly 32 million in India) who could find adoptive parents in India. It's odd Indian children are finding more ready homes abroad than here."
For IAPA, this is yet another battle lost in its 30-year-old crusade for a uniform adoption law. The association, along with agencies like NAAF, emotionally bulldozed the state government into drafting a uniform adoption law. Not only did the Sena-BJP government nullify HAMA, it assured equal "status to an adopted child with that of a child born of lawful wedlock". The 1995 bill passed by the two houses of the state is still awaiting Presidential approval. "The state government ruined a good deed with their rider. The bill stresses it's a precursor to the Uniform Civil Code," says Grover.
Unfortunate, since the prejudice against girl child adoption is gradually diminishing due to sustained efforts by the Voluntary Coordinating Agency comprising 13 adoption agencies like IAPA.Najma Goriawalla, an IAPA consultant, notes how enlightened couples are today increasingly looking towards adoption. Unlike '83, when just 58 (only 13 females) out of 386 children found homes, in '95 388 children found homes, with almost equal takers for girls and boys (see table). "Restrictive rules act as disincentives," says Goriawalla. HAMA can discourage multiple adoptions; make it difficult for adoption agencies to place destitute siblings or twins who, most social workers feel, shouldn't be separated. Adoptive parents, too, fear legal wrangling later among siblings. But NAAF is determined to tilt the balance in favour of their 'wards'. For little Sandhya then, there's hope yet.
