[Guest Post] Harmony in amending Family Laws

The post has been contributed by Mr. Anil Malhotra. He is an author,  practicing lawyer, has to his credit seven books pertaining to issues of private international law. He can be reached at anilmalhotra1960@gmail.com.

The Ministry of Women and Child Development (WCD) has proposed two amendments in existing statutory enactments relating to marriage and adoption laws. The first proposal seeking approval of the Union Cabinet seeks to amend Section 3 of the Prohibition of Child Marriage Act, 2006 (PCMA). Reportedly, the WCD is stated to have circulated a draft Cabinet note proposing to make child marriages “void ab initio” i.e. invalid from inception. Currently, Section 3 PCMA, makes child marriages voidable i.e. which can be terminated or annulled at the option of an aggrieved party.

The second suggested change is in the realm of enabling speedier adoption of children by proposing to amend provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) to recognise District Magistrates/Collectors as the competent authority authorised to issue adoption orders under the JJ Act. Beneficial, benevolent and progressive as the proposals may be, they are short sighted and do not seem to be in tandem or harmony with parallel existing family law legislations. This may tend to create statutory conflicts with contradictory and inconsistent interpretations in issues relating to marriage, adoption and guardianship. The wholesome solution then may be to remain as it is or incorporate similar amendments in other existing laws for harmonious views.

The Hindu Marriage Act, 1955 (HMA) whilst prescribing the age of marriage for a bridegroom as 21 years and the bride as 18 years at the time of marriage, neither renders the marriage void or voidable in case of marriage of minors. Section 18 HMA, however, prescribes a punishment for child marriages which may extend to 2 years rigorous imprisonment or with fine upto one lakh rupees or with both. Likewise, Muslim personal laws too, do not invalidate child marriages. Consequently, both under Hindu and Muslim personal laws, the child marriage remains valid. In this perspective, the laudable piecemeal amendment of the PCMA to render child marriages void will be an exercise in futility, as both Hindu and Muslim communities governed by personal laws would have legislative protection for child marriages. Hence, making child marriages illegal and void under the PCMA alone, achieves no goal or commendable object. It will become a dead letter in the statue book and as a ship set to sail without a course.

Adoption of children under the JJ Act made, dehors the provisions of the Hindu Adoption and Maintenance Act, 1956 (HAMA), is guided by Sections 56 and 57 of the JJ Act, wherein irrespective of religion, orphan, abandoned and surrendered children , adoption can be made even to single or divorced persons as per procedure laid down under the Adoption Regulations, 2017. The process entails a robust and protective mechanism routed through the Central Adoption Resource Authority (CARA). Ultimately, under the JJ Act, all CARA approved adoptions require an adoption order from a Court, which under the JJ Act “means a Civil Court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court and City Civil Courts”. Section 61 of the JJ Act mandates that before issuing an adoption order approved by CARA, the Court shall satisfy that the adoption is for the welfare of the child, as per the wishes of the child and without consideration, payment or reward for the adoption.

The definition of “Court” in the JJ Act is shared by a similar interpretation of “District Court” under the Guardians and Wards Act (GWA) and the Hindu Minority and Guardianship Act, 1956 (HMGA), wherein “Court” means the City Civil Court or a District Court or a Judicial Court notified by the High Court under Section 4 of the GWA. Clearly, the functions, authority and powers to oversee and lend finality in matters of adoption and guardianship have jurisprudentially i.e. in the study of law, rested with Judicial Courts and not Executive Courts. This is because judicial and not executive minds, are lettered or trained to exercise legal powers, which require adjudicatory acumen to adjudge welfare of children, a prime duty vested by law. Subrogation of judicial functions to executive authorities in routine, for stamping judicial finality will offend the fundamental division of powers of judicial and executive Courts, besides encroaching on powers of judicial Courts under the GWA and the HMGA. The pivotal role of a judicial Court under Section 61 of the JJ Act to X-ray an adoption, before passing an adoption order cannot be delegated to executive Courts, militating the fundamental concept of determining the best interest and the welfare of the vulnerable child by making it an administrative exercise with no introspection. The end will defeat the means. Children, an asset of the nation, deserve a cautious adoption process.

L&P Editorial Team

The Law & Practice Blog's editorial team.

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