Revisiting Sandhya Kulkarni V. Union Of India - A Contemporary Analysis Of Adoption Laws In India

Author: LawSphereX

Category: Family & Personal Law

Published: 2026-08-23T20:57:15.210907+00:00

Updated: 2026-08-26T17:09:40.001+00:00

REVISITING SANDHYA KULKARNI V. UNION OF INDIA: A

CONTEMPORARY ANALYSIS OF ADOPTION LAWS IN

INDIA

Mahalakshmi Ananya K, CHRIST (Deemed to be University), Bengaluru, Karnataka

ABSTRACT

The judgment in Sandhya Kulkarni v. Union of India1, delivered by the Bombay High Court on September 9, 1997, remains a landmark ruling in the context of adoption laws in India. At its core, the case examined the constitutional validity of Section 11(i) and (ii) of the Hindu Adoptions and Maintenance Act, 19562, which prohibits individuals from adopting a second child of the same gender if they already have a living biological or adopted child of that gender. The petitioners, who wished to adopt a girl despite already having a biological daughter, challenged these provisions on the grounds that they violated Articles 143 (right to equality) and Article 214 (right to life and personal liberty) of the Constitution.

They argued that the law unfairly discriminated against adoptive parents and restricted their right to determine the size of their family, which they claimed was an integral part of the right to life and human dignity under Article 21. While the court upheld the validity of the provisions, citing their alignment with Hindu religious and cultural traditions, the case raises critical questions about the intersection of personal laws, constitutional rights, and the welfare of children in contemporary India. In today’s context, where societal norms, family structures, and the needs of orphaned and destitute children have evolved significantly, it is imperative to revisit this judgment and analyze its relevance in light of modern legal, social, and ethical considerations.

1 Sandhya Kulkarni v. Union of India, (1997) SCC OnLine Bom 380, AIR 1998 Bom 228 (India).

2 Hindu Adoptions and Maintenance Act, 1956, § 11(i)(ii), No. 78, Acts of Parliament, 1956 (India).

3 INDIA CONST. art. 14.

4 INDIA CONST. art. 21.

Background of the Case The petitioners in Sandhya Kulkarni v. Union of India5 were a couple who sought to adopt a girl child (Petitioner No. 1). However, they were barred from doing so under Section 11(i) and (ii) of the Hindu Adoptions and Maintenance Act, 19566, which prohibits the adoption of a second son or daughter if the adoptive parent already has a living child of the same gender, whether biological or adopted. The petitioners argued that these provisions were discriminatory and violated their fundamental rights under Articles 147 and Article 21 of the Constitution8. They contended that the law unfairly distinguished between parents who have biological children and those who wish to adopt, and that it infringed upon their right to decide the size of their family.

The Bombay High Court upheld the validity of the provisions, emphasizing their roots in Hindu religious and cultural traditions. The court also noted that any changes to the law should be addressed by the legislature rather than the judiciary, as they involve policy considerations. Key Issues in the Case The case raised several important legal and constitutional issues, which remain relevant today:

1. Violation of Article 149

The petitioners argued that Section 11(i) and (ii) created arbitrary classifications, such as distinguishing between parents with biological children and those without, and between parents adopting one child versus those wishing to adopt multiple children of the same gender. They contended that these classifications lacked a rational basis and were discriminatory.

2. Violation of Article 2110

The petitioners claimed that the right to life under Article 21 includes the right to live with dignity, which encompasses the freedom to determine the size of one’s family.

5 Sandhya Kulkarni v. Union of India, (1997) SCC OnLine Bom 380, AIR 1998 Bom 228 (India).

6 Hindu Adoptions and Maintenance Act, 1956, § 11(i)(ii), No. 78, Acts of Parliament, 1956 (India).

7 INDIA CONST. art. 14.

8 INDIA CONST. art. 21.

9 INDIA CONST. art. 14.

10 INDIA CONST. art. 21.

They argued that the restrictions on adoption infringed upon this right.

3. Welfare of Destitute Children

The petitioners highlighted the plight of orphaned and destitute children, particularly girls, who are often denied the opportunity to find loving homes due to restrictive adoption laws. They argued that the provisions hindered the welfare of such children, contrary to the mandate of Article 39(f) of the Constitution11 and international conventions like the Convention on the Rights of the Child (CRC).

4. Judicial vs Legislative Domain

The court ultimately held that the issue was a matter of legislative policy and not within the purview of judicial intervention. This raises questions about the role of the judiciary in addressing gaps in personal laws that may conflict with constitutional principles. Legal Provisions Involved The case involved several key legal provisions, including: • Section 11(i) and (ii) of the Hindu Adoptions and Maintenance Act, 1956: These provisions restrict the adoption of a second child of the same gender if the adoptive parent already has a living biological or adopted child of that gender.12 • Article 14 of the Constitution of India: This guarantees the right to equality and prohibits discrimination.13 • Article 21 of the Constitution of India: This protects the right to life and personal liberty, which has been interpreted to include the right to live with dignity.14

11 INDIA CONST. art. 39., cl. (f).

12 Hindu Adoptions and Maintenance Act, 1956, § 11(i)(ii), No. 78, Acts of Parliament, 1956 (India).

13 INDIA CONST. art. 14.

14 INDIA CONST. art. 21.

Article 39(f) of the Constitution of India: This mandates the State to ensure that children are given opportunities for healthy development in conditions of freedom and dignity.15 • Convention on the Rights of the Child (CRC), 1989: Articles 2(1)16 and Article 3(1) of the CRC17 emphasize non-discrimination and the best interests of the child as primary considerations in all actions affecting children. Petitioners’ Arguments The petitioners made several compelling arguments challenging the constitutionality of Section 11(i) and (ii):

1. Violation of Article 1418:

They argued that the provisions created unreasonable classifications, such as distinguishing between parents with biological children and those without, and between parents adopting one child versus those wishing to adopt multiple children of the same gender. These classifications, they contended, lacked a rational basis and were discriminatory.

2. Violation of Article 2119:

The petitioners asserted that the right to life under this Article includes the right to live with dignity, which encompasses the freedom to determine the size of one’s family. They argued that the restrictions on adoption infringed upon this right.

3. Welfare of Destitute Children:

The petitioners emphasized that the provisions hindered the welfare of orphaned and destitute children, particularly girls, by limiting their opportunities to find homes. They

15 INDIA CONST. art. 39., cl. (f).

16 Convention on the Rights of the Child, art. 2(1), Nov. 20, 1989, 1577 U.N.T.S. 3.

17 Convention on the Rights of the Child, art. 3(1), Nov. 20, 1989, 1577 U.N.T.S. 3.

18 INDIA CONST. art. 14.

19 INDIA CONST. art. 21.

cited Article 39(f) of the Constitution20 and the CRC to support their argument that the best interests of the child should be prioritized. Respondents’ Arguments The respondents defended the provisions, arguing that:

1. Historical and Religious Context:

They emphasized that the restrictions were rooted in Hindu religious and cultural traditions, which historically allowed only one male child to be adopted. The inclusion of female children in the 1956 Act was seen as a progressive step, but allowing multiple adoptions of the same gender was not considered necessary.

2. Legislative Policy:

The respondents argued that adoption laws involve policy considerations that are best addressed by the legislature rather than the judiciary. They cited precedents like Ahmedabad Women Action Group v. Union of India, which held that personal laws are outside the scope of judicial review under Article 13 of the Constitution.

3. No Right to Unlimited Adoption:

They contended that while individuals may naturally have multiple biological children, this does not translate into a legal right to adopt an unlimited number of children. Court’s Decision The Bombay High Court upheld the validity of Section 11(i) and (ii) of HAMA21, ruling that the provisions were not inequitable or unfair. The court emphasized that adoption is a privilege conferred by Hindu law and not a statutory right. It also held that the issue was a matter of legislative policy and not within the purview of judicial intervention. The court suggested that the legislature could reconsider the provisions in light of the needs of destitute children.

20 INDIA CONST. art. 39., cl. (f).

21 Hindu Adoptions and Maintenance Act, 1956, § 11(i)(ii), No. 78, Acts of Parliament, 1956 (India).

Contemporary Relevance

1. Evolving Family Structures

In recent years, the concept of family has undergone significant transformation. Traditional nuclear families are no longer the only norm, with single-parent families, same-sex couples, and childless couples increasingly seeking to adopt. The restrictive provisions of the Hindu Adoptions and Maintenance Act, 1956, fail to accommodate these diverse family structures. For instance, a single parent or a same-sex couple may wish to adopt more than one child of the same gender, but the current law prohibits this. Such restrictions are out of sync with the realities of modern Indian society, where the definition of family is expanding beyond traditional boundaries. Moreover, the rise of assisted reproductive technologies (ART) and surrogacy has further complicated the landscape of family formation. Couples who cannot conceive naturally often turn to adoption as an alternative.

However, the restrictive provisions of the Act create unnecessary barriers, forcing many to explore other, often more expensive and legally complex, options. This not only limits the choices available to prospective parents but also deprives countless children of the opportunity to find loving homes.

2. Welfare of Children

India is home to millions of orphaned and destitute children, many of whom live in dire conditions. According to UNICEF, there are approximately 30 million orphaned and abandoned children in India, with only a fraction of them being adopted each year. The restrictive provisions of the Hindu Adoptions and Maintenance Act exacerbate this crisis by limiting the number of children who can be adopted. For instance, a couple who already has a biological or adopted daughter is barred from adopting another girl, even if they are willing and able to provide a loving home. This restriction is particularly detrimental to female children, who are often marginalized in Indian society. Girls are more likely to be abandoned or orphaned due to cultural preferences for male children, and they face greater challenges in finding adoptive families.

By limiting the adoption of girls, the current law perpetuates gender inequality and denies these children the opportunity to grow up in a nurturing environment.

The Convention on the Rights of the Child (CRC), to which India is a signatory, emphasizes the importance of prioritizing the best interests of the child in all decisions affecting them. The restrictive provisions of the Hindu Adoptions and Maintenance Act are in direct conflict with this principle, as they prioritize the preservation of religious and cultural traditions over the welfare of children. This raises serious ethical and legal concerns, particularly in a country where the rights of children are often overlooked.

3. Constitutional Rights vs. Personal Laws

The case of Sandhya Kulkarni v. Union of India22 highlights the persistent tension between constitutional rights and personal laws in India, a conflict that remains unresolved in many areas of Indian jurisprudence. While the Constitution of India guarantees equality and prohibits discrimination under Articles 1423 and Article 1524, personal laws, including the Hindu Adoptions and Maintenance Act, 1956, often perpetuate gender-based and other forms of discrimination. The Act’s restrictive provisions, such as Section 11(i) and (ii), which prevent individuals from adopting a second child of the same gender if they already have a biological or adopted child of that gender, disproportionately affect women and girls25.

These provisions not only limit the rights of adoptive parents but also hinder the welfare of orphaned and destitute children, particularly girls, who are often marginalized in Indian society. Historically, the judiciary has been hesitant to intervene in matters of personal law, citing the need to respect religious and cultural traditions. However, this approach has increasingly been criticized for allowing discriminatory practices to persist, often at the expense of fundamental rights. The Supreme Court’s landmark judgment in Shayara Bano v. Union of India (2017)26, which declared the practice of instant triple talaq unconstitutional, marked a significant shift in this regard. The Court emphasized that personal laws must conform to constitutional principles, particularly those relating to equality and non-discrimination.

In light of this precedent, it is arguable that the restrictive provisions of the Hindu Adoptions and Maintenance Act should also be subject to judicial scrutiny. The right to adopt is not merely a matter of personal privilege but an integral aspect of the right to life and dignity under Article 21 of the Constitution27. By limiting this right, the Act infringes upon the constitutional rights of both

22 Sandhya Kulkarni v. Union of India, (1997) SCC OnLine Bom 380, AIR 1998 Bom 228 (India).

23 INDIA CONST. art. 14.

24 INDIA CONST. art. 15.

25 Hindu Adoptions and Maintenance Act, 1956, § 11(i)(ii), No. 78, Acts of Parliament, 1956 (India).

26 Shayara Bano v. Union of India, AIR 2017 SUPREME COURT 4609

27 INDIA CONST. art. 21.

adoptive parents and children, particularly those who are orphaned or destitute. The judiciary, as the guardian of the Constitution, must adopt a more proactive stance in addressing such conflicts, ensuring that personal laws do not override fundamental rights. A balanced approach is needed—one that respects religious and cultural traditions while also upholding the principles of equality, dignity, and justice enshrined in the Constitution. Only then can India’s legal framework truly serve the needs of its diverse and evolving society.

4. Role of the Judiciary

The Bombay High Court’s decision in Sandhya Kulkarni v. Union of India28 to defer to the legislature highlights a critical debate about the judiciary’s role in addressing gaps and conflicts within personal laws. While policy-making is traditionally the domain of the legislature, the judiciary has an equally vital role in ensuring that laws align with constitutional principles, particularly when fundamental rights are at stake. As the ultimate guardian of the Constitution, the judiciary is tasked with safeguarding the rights of individuals and ensuring that no law, including personal laws, violates the constitutional framework of equality, dignity, and justice. In Sandhya Kulkarni, the court’s reluctance to intervene in the restrictive provisions of the Hindu Adoptions and Maintenance Act, 1956, reflects a broader trend of judicial deference in matters of personal law.

This deference is often justified on the grounds of respecting religious and cultural traditions. However, this approach has increasingly come under scrutiny, as it allows discriminatory practices to persist, often at the expense of vulnerable groups such as women and children. By deferring to the legislature, the judiciary risks perpetuating inequalities and failing to uphold its constitutional mandate to protect fundamental rights. The Supreme Court’s landmark judgment in Shayara Bano v. Union of India (2017)29, which struck down the practice of instant triple talaq as unconstitutional, marked a significant shift in this regard. The Court emphasized that personal laws must conform to constitutional principles, particularly those relating to equality and non-discrimination.

This precedent underscores the judiciary’s responsibility to intervene when personal laws conflict with fundamental rights, even if such intervention involves challenging deeply entrenched cultural or religious practices. In the context of adoption laws, the judiciary must adopt a more proactive stance in addressing

28 Sandhya Kulkarni v. Union of India, (1997) SCC OnLine Bom 380, AIR 1998 Bom 228 (India).

29 Shayara Bano v. Union of India, AIR 2017 SUPREME COURT 4609

the discriminatory provisions of the Hindu Adoptions and Maintenance Act. The right to adopt is not merely a matter of personal privilege but a fundamental aspect of the right to life and dignity under Article 21 of the Constitution30. By limiting this right, the Act infringes upon the constitutional rights of both adoptive parents and children, particularly those who are orphaned or destitute. The judiciary, as the protector of constitutional values, must ensure that personal laws do not override fundamental rights and that the welfare of vulnerable groups, such as children, is prioritized. Moreover, the judiciary’s role extends beyond merely interpreting laws; it also includes shaping legal principles to address contemporary societal needs.

In a rapidly evolving society, where family structures and societal norms are changing, the judiciary must ensure that laws remain relevant and equitable. By taking a more interventionist approach, the judiciary can help bridge the gap between outdated personal laws and modern constitutional values, ensuring that the rights of individuals and the welfare of children are not compromised. Conclusion The case of Sandhya Kulkarni v. Union of India31 underscores the urgent need for a balanced and harmonious approach to adoption laws in India—one that respects religious and cultural traditions while prioritizing the welfare of children and upholding constitutional rights.

The judgment, which upheld the restrictive provisions of the Hindu Adoptions and Maintenance Act, 1956, reflects a broader challenge in Indian jurisprudence: reconciling personal laws with the principles of equality, dignity, and justice enshrined in the Constitution. As India continues to evolve socially and culturally, the legislature must take proactive steps to revisit and reform outdated adoption laws that no longer align with contemporary societal needs. The current restrictions, which prevent individuals from adopting a second child of the same gender if they already have a biological or adopted child, are not only discriminatory but also counterproductive to the goal of providing stable and loving homes to millions of orphaned and destitute children.

These laws disproportionately affect girls, who are already marginalized in Indian society, and hinder their chances of finding families willing to adopt them. The judiciary, too, has a critical role to play in this process. While the courts have traditionally

30 INDIA CONST. art. 21.

31 Sandhya Kulkarni v. Union of India, (1997) SCC OnLine Bom 380, AIR 1998 Bom 228 (India).

deferred to the legislature in matters of personal law, there is a growing recognition that such deference can perpetuate discriminatory practices. The Supreme Court’s landmark judgment in Shayara Bano v. Union of India (2017)32, which struck down the practice of instant triple talaq as unconstitutional, set a powerful precedent for judicial intervention in personal laws that violate fundamental rights. Similarly, the judiciary must take a more proactive stance in addressing the conflicts between personal laws and constitutional principles, particularly in cases involving the rights of vulnerable groups such as women and children. Adoption is not merely a matter of personal privilege but a fundamental aspect of the right to life and dignity under Article 21 of the Constitution33.

By limiting this right, the current laws infringe upon the constitutional rights of both adoptive parents and children. In a country with millions of orphaned and destitute children, adoption laws must be inclusive, equitable, and centred on the best interests of the child. This requires a comprehensive overhaul of the legal framework to ensure that it aligns with modern values and addresses the realities of contemporary Indian society. The legislature must consider amending the Hindu Adoptions and Maintenance Act to remove arbitrary restrictions and create a more inclusive adoption process. At the same time, the judiciary must ensure that personal laws do not override constitutional rights, particularly in cases where the welfare of children is at stake. Only by striking this delicate balance can India truly uphold its constitutional promise of equality, dignity, and justice for all.

The well-being of millions of orphaned children depends on it, and the time for reform is now.

32 Shayara Bano v. Union of India, AIR 2017 SUPREME COURT 4609

33 INDIA CONST. art. 21.