Gender bias in the Hindu adoption law

In the EPW dated October4-10, 2008, Ramachandra Guha whose article on modern Indian history invited a post here, provoked Nivedita Menon to join issue with him on issues of gender. Among other things, Menon questioned Guha’s thesis that the reform of Hindu family code in the 1950s ensured equal rights to women. Menon may have found fresh support to her criticism of Guha in a recent case before the Delhi’s Metropolitan Magistrate, Naveen Arora. While deciding a case between the biological parents who gave their child in adoption before their marriage and the foster parents, the Judge ruled that the adoption was invalid precisely because it violated Section 9(2) of Hindu Adoptions and Maintenance Act, 1956 and directed that the child be returned to his biological parents. According to this section, the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world (I wonder what this expression means) or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

Why the Act denies the mother the right to give in adoption with the consent of the father is difficult to explain, except in terms of the then law makers’ bias against women. In the case decided by the MM, it was the mother who gave the child in adoption to the foster parents, probably with the consent of the father. Right time to challenge the constitutionality of this section? Our law makers have recently found it necessary to reform the Hindu inheritance laws to ensure equal rights to women. It is a mystery why this provision did not attract their reformist zeal.