adoption
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This article is written by Shruti Singh, a student at Lloyd Law College, Greater Noida. In this article, she discusses the adoption, Family Law.  

Introduction

Section 5 in The Hindu Adoptions and Maintenance Act, 1956

Adoption means a legal transfer. Generally, new couples prefer to adopt a child not to give birth to a new child. If we see, in India, orphanages are full of children, as they have no parents to take care of them. Today many parents give birth to a girl and throw her in the dustbin and don’t even think twice. This crime is increasing day by day. In today’s generation also people don’t understand the value of a girl child after so high education qualifications. Half of the population of children is alone, they don’t have legal parents to take care of them. Adoption is the best way to give them a good life. It also helps in maintaining the population of the country. Hence, new couples of our generation are working in this matter by adopting the child and give them a better life. 

Adoption under English law

  •  U.N adoption program

 According to the United Nations, every state has the right to adoption so that adoption may come in the effect. International Conventions has its own general rules and principles and acts for the adoption right. 

  1. The Declaration of the Rights of the Child, 1924 is the first and foremost principle for the protection of child rights. It is also known as the Geneva Declaration of the Rights of the child. This right is adopted by the League of Nations in 1924. Geneva has taken this quote to define the protection of child and child rights under English Law. the quote is “International Save the Children Union”. 

The main objective of this quote is:

  1. For the protection of a child and give them a good life. 
  2. For the development of their mental and physical health.
  3. The children who have no one to feed them and the children who are sick and they don’t get medical health facilities can get adopted and give them all these facilities. Take care of them in all cases. 
  4. They are provided with good education even in the orphanages. And most importantly the children who stay on the roadside also get adopted by orphanages and feed them with good food and health facilities. 

World Child Welfare Charter is the first welfare program which is established and perform in the established institution by the League of Nation on 26 November 1924. This is the first human rights document that is approved by the governmental institution to perform the welfare program. 

  • The second right which is established by the United Nations is The Declaration of the Rights of the Child is the second document which is established in the year 1959. It gave the children official recognition of the human rights of the children. There are some Declarations, Covenants, and Conventions for the children who did not get parental care. The two summits of UN Convention which was established by the United Nation and India has become a signatory of those summits. The summit is the Declaration of the World Summit for Children. This summit’s main intention is to work for the survival and development goals in the year 2000. 
  • The seventeenth session of the UN is the Hague Conference on Private International Law and Hague Adoption Convention(Convention on the Protection of Children and Cooperation in Respect of Inter-Country Adoption) which is adopted for the protection of children and the interest of their parents and adoptive parents so they can adopt children by their own choice and feed them. 
  • Person Competent to Adopt under English Law
  1. Children domiciled in the United Kingdom
  2. Couples are the citizens of the United Kingdom
  3. Couples must have their residents to stay.
  4. They must be employed so they can give their child a good life.
  5. Couples must be married. 
  6. Adoption is not allowed for unmarried couples.
  7. Couples must adopt the child with the permission of their parents so if any condition they become incapable to feed their children so their parents can feed their children.
  8. Couples must be age 21 or above. 
  • A person competent to give their child for adoption

In case natural parents died, the Guardian of that child can give the child for adoption. Guardians have the right to give the children for adoption under Guardians of Minor Act. in case of a child is admitted in the hospital, asylum or any other place, in case institution permission is important for giving the child for adoption as well as guardian permission is also required. Children who are only attended 6 weeks of age, their adoption is only valid after the permission of their parents or adoptive parents or guardian.     

  • Who may be adopted

Children attended the age of 6 weeks they can be adopted or up to the age of 18. The children who already attend the age of more than 18 years cannot be adapted according to the English law. 

  • Effects of Adoption 
  1. Adoptive children can’t marry in their own natural parent’s family.
  2. Adoptive children can only marry with adoptive children.
  3. Adoptive children have rights in the property of their parents.
  4. All the rights are the same for adoptive children and natural children.
  5. Adoptive children is a citizen of the United Kingdom only.
  6. Natural parents can only adopt children. 
  7. Adoptive parents cannot adopt children.
  8. Adoption is revocable.
  9. Adoption is registered under Registrar General. 
  10. Records of the adoption are always kept a secret from the public.

Modern Adoption Law

Modern adoption law is established in the nineteenth century for some new changes and development in the society for the betterment of children’s future. Modern adoption promotes the welfare of children for the new ideological framework. The first act which is established in the modern adoption law is The Massachusetts Adoption of Children Act which was enacted in the year 1851. 

Rules of Massachusetts Adoption of Children Act:

  1. Prove themselves suitable and fit to adopt the child in front of judges.
  2. The birth relatives didn’t get terminated because of adoption.
  3. A person who has legitimate descendants cannot adopt a child. 

In the year 1881 New Zealand has introduced the Adoption of Children Act. New Zealand is the first country under Common Health to introduced this act. 

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Adoption in India

“Every child has a Right of Adoption”

This quote brings great change related to adoption in India. It is a very sensitive issue in India that children have no one for their care in a very high population. In comparison to all other countries, India has the highest population. And every day, many children are pushed into the orphanages because of their family problems. Even we see children on roadsides roaming around and they have to beg on the roadside for the food and dresses and they cry for the food maximum time. And after seeing these conditions also people don’t even try to feed them when they are capable of feeding them. This is the reason why maximum children have to stay alone. 

Principles to govern the Adoption Process in India

Orphan and abandoned child

  • Adoption is legally free under section 31, 32, 33, 36, 40.
  • If any child gets adopted without the involvement of the child welfare committee that child has to stay 24 hours with the committee and also has to submit the reports and other documents of adoption to the local police station. 
  • Committee issue an order for the interim care of the child. 
  • Documents and reports of the adoption are submitted to the local police station as well as entered online in the Child Adoption Resource Information and Guidance System in the format as prescribed. 

Eligibility of adoption in India

  1. Parents should be stable for adoption.
  2. Parents should economically, physically and financially capable of adoption.
  3. Parents must be married.
  4. A single male is not eligible to adopt a girl child.
  5. Composite age will count.
  6.  The age difference between parents and child be 25 years.
  7. Step-parent adoption is not allowed.
  8. If any couple has 3 children or more than that they cannot adopt a child. 

Age perspective:

Age of child

Maximum composite age of prospective adoptive parents (couple)

Maximum age of single prospective adoptive parents.

1-4 years

90 years

45 years

4-8 years

100 years

50 years

8-18 years

110 years

55 years

 

  • The adoption process in India 

The procedure of Adoption In India:

Child registration: 

  • Parents have to register themselves in the organization from where they want to adopt a baby. 
  • Documents are submitted for the adoption of a child. 
  • The documents required photographs of the current family, Pan card of the parents, birth certificate of the parents, proof of residency, proof of income of last year, medical report of the parents, reference letter, consent of older children.
  1. Home inquiry and counselling of parents: when couples registered themselves for the adoption of the child first they have to submit all their documents as required for the adoption according to the adoption agency and then the next process of adoption is the home enquiry of parents where they live. The social worker of the organization where the parents have registered themselves to adopt the child, from that organization some of the social workers visit the house of registered parents and study the home and check all the things in the house for the satisfaction that the parents are capable to adopt the child. And also they do counselling session with parents to know their strength, motivation, and preparation for the adoption of a child.  
  2. The child is referred: after every process of the adoption done from the parent’s side then the organization shares medical reports, physical examination reports and other relevant information with the couple and also allow them to spend time with the child so they get comfortable with each other.   
  3. Acceptance by parents: finally parents accept the child and take their child with themselves by signing the petition in the court.   
  4. A petition filed: the documents of the adoption to the lawyer to present in front of the court for the adoption process and at last, after the end of the process, parents have to sign the petition for the completion of the adoption. 
  5. Pre-Adoption foster care: this process is done when the petition is signed. In this process, adoptive parents can take their child to the child nursing home for the pre-adoption foster care centre and help to understand the habits of the child. 
  6. Court hearing for the process of Adoption: after parents take adoptive child home after that they have to take their child to attend the court hearing for the adoption process with the child but this hearing is happened in the closed room with judge and the judge some of the questions to the parents and mention the amount which needs to be invested in the name of the child. 
  7. Follow up: at last agency has to submit the following report of the child’s well being in 1-2 years. 
  • Adoption Coordinating Agency

The functions and duties of the Adoption Agency are as follows:

  1. Care, protection, care of their well-being, health needs, emotional, and psychological needs, education, training.
  2. Training needs like leisure and recreational activities.
  3. Protect from child abuse, neglect, and exploitation, social mainstreaming and restoration.
  4. All cases must be for the children related to admissions, restorations, transfers, death, and adoption of children, children missing. 
  5. All committees like Child Welfare, District Child Protection Unit, State Adoption Resource Agency, and the Authority through Child Adoption Resource Information and Guidance System are designated for the post of a missing child to file to the police. 
  6. The report of orphanages of children is submitted to the Child Adoption Resources information and Guidance System through the website of CARA.

Hindu law

According to the Hindu Law, it legalises the adoption in India. It defines the adoption under the Hindu Adoption and Maintenance Act, 1956. It teaches the parents to treat the adoptive children as their natural child. There must be no discrimination between the adoptive children and natural children. If any parents adopted girl child they must take care of their girl child by giving her all the facilities which she is eligible for as they give to their natural child. There will be no discrimination between a girl child and a boy child. Even girl child get all the facilities they give to their natural son. 

The landmark case on Hindu Law:

Bal Gangadhar Tilak vs Shrinivas Tilak

Facts of the case: 

In this Privy Council observed that adoption among Hindus is not only for the legalise the children but also it is a religious means to make obligations and sacrifices which would permit the soul of the deceased father passing from Hades to paradise. 

Amarendra Mansingh vs Sanatan Singh

Facts of the case:

In this case, the Privy Council observed about the foundation of the Brahmanical doctrine of adoption is the duty which every Hindu owes with his ancestors to provide for the continuance of the line and the solemnization of the necessary rites.

  • Adoption is a part of the customs and burden of proving the validity of adoption depends on the person who claims it under the Hindu Adoption and Maintenance Act, 1956.    

Binapani Samanta vs Sambhu Mondal

Facts of the case:

The petitioner has filed a petition challenging the defendant who is the probate of the will on the ground that she was the adopted daughter of the deceased who died and the probate is fraudulent. But she fails to prove the burden of proof of the validity of the adoption. It was held that she could not challenge the probate.

Hindu Adoption and Maintenance Act, 1956

This act was enacted in the year 1956 for the maintenance of children who don’t have legal parents and they have to live in an organization. 

  • Features of the Act 
  1. Females can adopt a child and even give for adoption. 
  2. Female can adopt the child with the consent of his husband
  3. A widow can also adopt the child.
  4. The male has to take the consent of his wife if he wants to adopt the child.
  5. Female can adopt the child which was not permissible in pre-act
Capacity to adopt
  1. Unmarried males can also adopt the child.
  2. An unmarried female can also adopt the child after the HAMA act, 1956
  3. If any married male wants to adopt a child he has to take the consent of his wives.
  4. If any married woman want to adopt the child she has to take the consent of her husband.
  5. Divorced and widow can also adopt the child.

Capacity to give for adoption

  1. If in case parents died then the guardian can give for adoption.
  2. If only the father is alive then he can alone give for adoption without any consent. 
  3. If the mother becomes unsound mind then her/his father can give for adoption. 

Effect of adoption

When children get adopted he/she gets right in the property of their parents. They become part of the natural family. All the rights and obligations of a natural-born child of the family fall on the adoptive child with some exceptions. These exceptions are as follows:

  1. An adopted children can only marry  the adopted child. He cannot marry anyone who is not adopted.
  2. Any property which is vested in the adopted child before adoption continues to vest in him subject to the obligation, if any, attaching with the ownership of the property, including the obligations to maintain relations of his/her birth.
  3. The adoptive child cannot divest any person of any estate which vested in him or her before adoption. 

If any parents give their property to their adoptive child they lose power to dispose of the property or transfer the property. They don’t have any rights in the property of the adoptive child. If any male is already married and his wife has adopted a child she will be the actual mother of that child and if the male was married another girl she will become the step-mother of the adoptive child. If any unmarried male adopted a child before marriage and after some time he gets married then his wife becomes the step-mother of that child. She will not consider as a legal mother of that child. And if any unmarried woman or a widow or divorced woman has an adopted child and if she married someone then he will become the step-father of that child. Because of this many times dispute is caused between adopted child and step-father. The reason behind this adopted son has no right in the property of his step-father. 

Case law:

Gender bias 

Comparison between male and female in case of adoption.

  1. Married women cannot adopt the child even though she cannot adopt the child with the consent of her husband.
  2. If any female wants to adopt the child, in case she can only adopt the child if she widow or divorced or a single mother. 
  3. A married male can adopt the child with the consent of her wife. 
  4. Unmarried males can also adopt the child. 

In the case of giving in adoption father has a better right:

  1. If the father is alive he can give his child for adoption with the permission of his wife.
  2. But a mother cannot give their child for adoption even with the consent of her husband she cannot give for adoption. 
  3. Mother can give the child for adoption if her husband died. 

Case laws:

Malti Roy Chowdhury vs Sudhindranath Majumdar

Facts of the case:

This case is filed by the petitioner for the right of married women for adoption because according to HAMA act married women cannot adopt a child and not even with the consent of her husband. This case is related to gender discrimination. The court marked for this judgment is “Adoption has to be taken factually or legally by the male in case of marriage, and not by the wife. In other words, the wife cannot adopt even with the consent of the husband”. 

Brijendra Singh vs The State of M.P

Facts of the case:

This case overruled the case Malti Roy, in this case, it is observed that this case came as a big disappointment. In this case, disabled lady was married with the village custom, a virgin girl must get married, her husband left her and after that, she adopted a son after 22 years of her marriage. In the other case, disputes are under the agriculture land ceiling law. She sought a declaration that the appellant was her adopted son. The suit was decreed by the trial court and affirmed by the first appellate court. On second appeal to the Madhya Pradesh High Court it was held that, given the provisions of section 8(c) of the HAMA Act, 1956, the adoption was not valid. The argument she said that she is leading a life like a divorced woman was not accepted because this was a great deal of difference between a female Hindu who is divorced and one who is leading a life like a divorced woman, the court observed. 

After this new Act is established in favour of married women, the Gender Discrimination Act which is a personal law amended in the year 2010, which gives right to the married women to adopt a child with husband’s consent but that is not likely to change the fate of married female placed in the position of the disabled, deserted, “divorced-like” lady in this case. 

Factum and proof of adoption

Case law:

Ram Das vs Gandiabai 

Facts of the case:

In this case, petitioner filed a suit for partition against the deceased father’s brother. The latter alleged that the petitioner had no right over the properties, as he was no longer a member of the family because he had been given away in adoption to the man whom his mother later married and who maintained him. The court did not accept this plea. It held that simply because the step-father spent money on his maintenance does not by itself imply that he had been adopted by the step-father. It was accordingly held that even though he was brought up by the step-father, he continued to be a member of his deceased father’s family, with all the rights of a son of that family. 

Nilima Mukherjee vs Kanta Bhusan Gosh

Facts of the case:

In this case plea of adoption was taken based on joint accounts with the alleged adoptive father, the court held that the mere fact of having a joint account is no proof of adoption. 

Dhanno vs Tuhi Ram

Facts of the case:

This is the case of the property dispute based on the claims of the virtue of adoption, but the court refused to accept the claim because there was a valid adoption. The son claimed to be the adoptee of his parents, but he treats him as his biological father, rather than the alleged adoptive mother, as his parent. Besides, there was no other evidence on record to show any ceremony regarding adoption. In these circumstances, a mere placing of a registered adoption deed on record, without proving the factum of adoption, was held to be not enough evidence of adoption. 

The judgment of the case:

The court observed that evidence in support of adoption must be sufficient to satisfy the heavy burden that rests upon any person who seeks to displace the natural succession by alleging the adoption. 

Ram Chandra vs Banwari Lal

Facts of the case:

In this case the validity of adoption deed is challenged where the alleged adoption deed did not bear the signature/thumb impression of the natural father of the adoptee or any of his guardians nor was there any indication of presence of parents and guardians of the adoptee at the time of execution or registration of the adoption deed.   

Prafulla Bala Mukherjee vs Satish Chandra Mukherjee

Facts of the case:

In this case, the adoptive mother sought a declaration of absolute right, title, and interest in respect of the property built by the adopted son, and also a decree for a perpetual injunction restraining his relatives, the defendants, from interfering with occupation and possession of the property. According to the court, the mere fact that an allegedly adopted son permitted his adopted son, adoptive mother, and her family to live in his house, was no proof of adoption. On the contrary, there were several facts to disprove the adoption like the adopted son treating his natural mother as his mother till his death, appointing her as his nominee in the insurance policy, provident fund, etc. performing the shraddha ceremony of his natural father, and his own death, his shraddha ceremony being performed by his brother.   

Suma Bewa vs K.B. Nayak

Facts of the case:

The plea of adoption is rejected in this case because there was proof of the adoption. There was no document executed by the parties in support of the alleged adoption, no contemporaneous document recording name of adopted son as the son of the adoptive father, nor any document to show that the name of the adoptive father was recorded in the service book of the adopted son. On the contrary, the voter’s list indicated the name of the natural father. Besides, oral evidence was found to be suspicious, no independent witnesses were examined to prove adoption ceremony nor a single neighbour examined to testify that adoptive father and adoptive son were living together and addressing each other as such. 

Oriental Insurance Co.Ltd vs Lalita Sharma 

Facts of the case:

In this case, the mere fact that the child was living with his father and step-mother, who claimed to be the adoptive mother, in the same house was held not enough to prove adoption. 

Chandan Bilasini vs Aftabuddin Khan

Facts of the case:

In this case where there was enough evidence of adoption, the mere fact that the adoptive mother, who was an old lady of 86, and some other persons who were present at the adoption ceremony, could not be produced in the court for giving evidence, was held not to be enough to assail the validity of the adoption. Also, where all rituals of adoption as per Hindu Law were followed the adoption deed was registered and photographs and negatives of photographs which had been taken at the time of adoption were produced, the adoption cannot be challenged. It is significant to note that registration of an adoption deed is not mandatory and there is no presumption in law against the validity of an unregistered adoption. However, when the same is registered, there is a strong presumption under section 16 of the act that the adoption has been made in compliance with the provisions of the act unless and until it’s disproved. Such presumption, however, is not irrebuttable and the court may refuse to accept an alleged adoption as legal despite it being registered if there is evidence of circumstances indicating that there was no valid adoption. Such presumption, cannot, however, be rebutted by minor discrepancies in the evidence. For instances where there was enough evidence of adoption, the mere fact that the adoptive mother, who was an old lady aged 86, and some other persons who were present at the adoption ceremony, could not be produced in the court for giving evidence, was held not to be a sufficient ground to assail the validity of the adoption.   

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Siddalingaiah vs H.K. Kariappa

Facts of the case:

This is the case challenging the adoption which was raised 40 years after the adoption the court held that the moment the adoption deed was registered parties to the adoption would have constructive notice of the same and challenging it after such a long gap would be barred by limitation. The court further clarified that even if the bar of limitation is not set up as a defence the court must take note of this and dismiss the suit.

Age requirement 

Case law:

Uma Prasad vs Padmavati

Facts of the case:

The claim of an adopted son to properties was sought to be challenged on grounds that the boy was above the age of 15 when he was adopted, and so the adoption was not valid. The parties, who were Agarwals by caste, however, succeeded in proving that they were governed by ancient and well-established custom and usage, which permitted the adoption of boys over the age of 15. The adoption was, consequently held to be valid.    

Khagenbam Sadhu vs Khagembam Ibotial Singh

Facts of the case:

Where the fact of adoption was proved, the challenge that the child was above 15 years, and Manipur custom did not allow such adoption, was held to be not sustainable as the alleged Manipur custom against such adoption was not proved. Adoption was therefore held to be valid. However, in a case where a plaintiff who was not.

Amit Chandubhai Chauhan vs Ahmedabad Municipal Corporation

Facts of the case:

In this case, the alleged adopted son sought a compassionate appointment after the death of his mother, his case was rejected as he was aged 23 at the time of the alleged adoption and he could not prove cogent evidence of the existence of a custom permitting adoption of the child over 15 years. 

Parvathamma vs Shivakumar

Facts of the case:

In this case, the child is over the age of 15 is allegedly adopted and it was not established that there was a judicially recognised custom amongst the lingayats of Karnataka permitting such adoption, the same was held to be void under Sec5(1) violation of section 10(iv) of the Act. 

Atluri Brahmananda(dead) through L.R. vs A.S. Bapuji

Facts of the case:

This is the case where the petitioner succeeded in proving the custom in the Kamma community to which he belonged, recognising the adoption of a boy over the age of 15 and this custom and fact of adoption was also recorded in the registered adoption deed which was not disproved, the adoption was held to be valid.  

Patel Mukesh Kumar vs Regional Passport Authority

Facts of the case:

The petitioner’s application before the passport authorities for the inclusion of his adoptive father’s name in his passport was rejected on the ground that the appellant was aged 34 at the time of adoption and hence the adoption was not valid. On appeal against this rejection, it was held that the passport authority has no power to render a finding regarding the legality or otherwise of the adoption of such findings could be given only by a competent court. Further, the adoption was affected by a registered deed. There is a legal presumption that the same has been made in compliance with the statutory requirements unless it is proved otherwise. In this case, it was not the case of the respondent passport authority that the adoption has been disproved, hence the presumption of validity of the adoption would apply, the court held.  

Adopted child to be Hindu

Case law:

Kumar Sursen vs The State of Bihar

Facts of the case

The issue of the adoption of a Muslim child came up before the court. The child was admittedly brought up by Hindu parents since his every tender age and they also treated him like their son. The court, however, declined to give him the status of an adopted child because of the specified provision of section 10(i) of the Act.

Consent of Wife

Case law:

Siddaramappa vs Gouravva 

Facts of the case:

The court invalidated an alleged adoption by a male without seeking his wife’s consent. The plea that the relations between the husband and wife were stained, and therefore her consent could not be taken was not accepted, as there was documentary evidence to establish that they were living together at the time of the alleged adoption. There was nothing to indicate that it was impossible to have a wife’s consent. Apart from that, when the conditions under which such consent may be dispensed with are specified in the Act, taking any other plea would be adding words to the statute. 

Ghisalal vs Dhapubai

Facts of the case:

This is the case based on the significant judgment of the Supreme Court. It was a property dispute where the issue of the validity of an adoption by a male, even though by a registered deed, was raised. The focal point was, the consent of the wife in the adoption while the petitioner claimed that he is the adopted son was entitled to the properties of the adoptive father, the latter denied the factum of adoption and also absence of the wife’s consent. The trial court, the lower appellate court and the Madhya Pradesh High Court were all of the opinion that the adoption was valid and the consent of the wife of the adopted male can be inferred from the circumstances of the case, that she was present in the ceremonies of adoption and did not question the adoption till the stage of filing the written statement in the suit filed by the petitioner. On appeal, however, the Supreme Court analysed the facts and circumstances of the case in detail and set aside the judgment of the courts below, adoption was held to be invalid.  

Deen Dayal vs Sanjeev Kumar 

Facts of the case:

In this case, the mother’s consent is equally mandatory in giving and taking of a child in adoption. Thus, an adoption, even through, registered, where the child was given in adoption by the natural father but without the consent of the mother, was held to be invalid. 

Consent of the father

Consent of the father is equally important when the mother wants to give or take a child in adoption unless he suffers from the statutory disabilities mentioned in sections 8 and 9 of the Act.

Case laws:

Teesta Chattoraj vs Union of India

Facts and judgment of the case:

In this case, the parents had a divorce by mutual consent and as per the settlement the father gave up all the claims and duties of their daughter. Two years later, the mother remarried and by a registered adoption, deed gave the daughter to the second husband without seeking the consent of the biological father. When the child applied for a passport with step father’s name as the father, the application was turned down because the adoption was invalid. Hence, the child’s petition through her mother under Article 226 of the Constitution. Her plea that the natural father had, in a way “finally renounced” the petitioner’s world since, at the time of obtaining a divorce by mutual consent, he gave up all his rights, responsibilities and claims over the child, was not accepted. On the other hand, a Government Circular of 2009 by the Ministry of External Affairs which provides that relationship of the child with his biological parents subsists even after divorce and the name of the stepparent cannot be written in the passport of the children from a previous marriage was relied upon. While there is logic to this provision, too technical an interpretation may go against the interest of the child. A recalcitrant parent may have abdicated himself/herself of all the responsibilities towards the child yet out of sheer vindictiveness may hold requisite consent which could cause psychological, emotional, social and practical problems as also embarrassment to the child. Each case needs to be assessed on its own merits and facts. 

Guardians and wards Act, 1890

This act is established in the year 1890. The main intention of this act is to define the guardianship of the child. Parents are the real and natural guardian of children but after the death of parents, grandparents or other members of the family becomes the guardian of the children but they are not considered as the natural parents of children. This act is applicable when any couple adopts children and after some because of some reasons they died then child responsibility comes over guardians so they can feed their child or if they are not capable of adoption they can give their child for adoption under this act. Guardians have full rights on the child-related to the right to education, employment, etc. 

Duties, Rights and Liabilities of Guardians

  1. Fiduciary relation of guardian to ward- The Guardian and children relation is considered as the fiduciary relation. This relation is for the protection of will and other instruments. But the guardian cannot make any profit in the will and property of children.   
  2. The capacity of minors to act as guardians- Minors is considered incompetent so he or she cannot become the Guardian of the children. He could be parents of his children but not a guardian.
  3. Control of collector as guardian- if the Guardian is minor then the court appoints the collector for the care and protection of children. The collector is connected with the Guardian. The collector is paid by the government officials.
  4. Remuneration of Guardian- when an officer appoints any person for the guardianship of children then that person’s duties towards children is decided by the court.  

Guardian of the Person

Title of guardian to custody of wards- if ward leaves or is removed from the custody of a guardian of his person by the court then the welfare of the ward is transferred to the guardian by making the order for his return by the court and before the transfer of the ward to the guardian the ward gets arrested.  

Duties of guardian of the person- the duties and responsibilities are charged to the guardian after the child is transferred to the guardian by the court. 

Removal of Ward from Jurisdiction- the guardian is appointed by the will or another instrument by the court. If a guardian is adopted with the permission of the court then the guardian should be removed from the responsibility of children.

Guardian of property

Duties of guardian of property– child are transferred to the guardian with some restrictions and bounds under the act. He can only do those acts which are reasonable and proper for the realisation, protection or benefit of the property.

Powers of testamentary guardian– When guardian adopt a child for the care and protection of the child they have some limited powers on childlike mortgage or charge, transfer by sale, gift, exchange, etc. guardian can adopt a child with the help of the will or another instrument which are legal. There are restrictions on the immovable property which belongs to ward is subject to restrictions which may be imposed by the instrument, unless they are declared guardian and the court which made the declaration permits them by an order in writing to dispose of any immovable property specified in the order in a manner permitted by the order.

Limitation of powers of guardian of property appointed or declared by the court– When the person is appointed as a guardian or collector by the court for the protection of the child than he shall not without the previous permission of the court mortgage or charge, transfer by sale, gift, exchange, or otherwise, any part of the immovable property of his ward.

Other than he can lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.

Voidability of transfers made in contravention of section 28 or section 29– A disposal of immovable property by a guardian in contravention of either of the two last foregoing sections is voidable at the instance of any other person affected thereby.

Practice concerning for permitting transfers under section 29– This section mentioned that the guardian has permission to do any acts which are mentioned in this section but it is not granted by the court except in case of necessity or for an evident advantage to the ward. The grant the permission from the court, shall recite the necessity or advantage, as the case may describe the property with respect to which that act permitted is to be done, specify such conditions, if any, as the court may see fit to attach to the permission and it shall be recorded, dated and signed by the judge of the court with his hand, or when from any cause he is prevented from recording the order with his hand, shall be taken down in writing from his dictation and be dated and signed by him. The court may in its discretion attached to the permission the following among other conditions. 

  1. That a sale shall not be completed without the sanction of the court.
  2. When some people are specially appointed by the court then the sale shall be made to the highest bidder by public auction before the court and the time and place is specified by the court. After such proclamation of the intended sale as the court subject to any rules made under this act by the High Court. 
  3. That a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and covenants as the court directs.
  4. According to the court, direction guardian shall be paid to the court on prescribed securities.

Variations of powers of guardian of property appointed or declared by the court– if any guardian is appointed by the court and if such a guardian is not the collector then the court may from time to time restrict or extend his powers with respect to the property of the ward in such manner and to such extent as it may consider being for the advantage of the ward and consistent with the law to which the ward is subject.

Right of guardian so appointed or declared to apply to the court for opinion in management of property of ward– A guardian appointed or declared by the court may apply by petition to the court which appointed or declared him for its opinion, advice or direction on any present question respecting the management or administration of the property of his ward.  

The obligation on Guardian of property appointed or declared by the court– Where a guardian of the property of ward has been appointed or declared by the court and such guardian is not the collector than he shall:

  • If a guardian is required to give the bound in the prescribed form to the judge of the court to ensure the benefit the judge for the time being with or without sureties for engaging duly to account for what he may receive in respect of the property of the ward. 
  • A guardian is required to deliver to the court in every six months from the date of his appointment or declaration by the court as the direction of the court. The statement of the immovable property which belongs to the ward related to money and other movable property which the guardian has received on behalf of the ward up to the date of delivering the statement, and of the debts due on the date to or from the ward. 
  • Guardian have to exhibit his account in front of court when court requires and in such form as the court from time to time directs.
  • A guardian has to pay the due balance from his account to the court if court is required as the court directs. 
  •  If the guardian apply for the maintenance, education, and advancement of the ward and the ward is dependent on the guardian then such portion of the income of the property of the ward as count from time to time directs, and if the court directs, the whole or any part of that party.   

Power to award remuneration for auditing accounts– when accounts are exhibited by a guardian of the property of a ward in pursuance of a requisition made under clause (c) of section 34 or otherwise, the court may appoint a person to audit the accounts and may direct that remuneration for the work be paid out of the income of the property.

Suit against guardian where administration-bond was taken– Where a guardian appointed or declared by the court has given a bond duly to account for what he may receive in respect of the property of his ward, the court may on application made by petition and on being satisfied that the engagement of the bond has not been kept, upon such terms as to security, or providing that any money received be paid into the court, or otherwise as the court thinks fit, assign the bond to some proper person, who shall thereupon be entitled to sue on the bond in his own name as if the bond had been originally given to him instead of to the judge of the court, and shall be entitled to recover thereon, as trustee for the ward, in respect of any breach thereof.

Suit against guardian where administration-bound was not taken– Where a guardian appointed or declared by the court has not given a bond as aforesaid, any person with the leave of the court, may, as next friend, at anytime during the continuance of the minority of the ward, and upon such terms as aforesaid, institute a suit against the guardian, or, in case of his death, against his representative, for an account of what the guardian has received in respect of the property of the ward, and may recover in the suit, as trustee for the ward, such amount as may be found to be payable by the guardian or his representative, as the case may be.

General liability of guardian as trustee– Nothing in either of the two last foregoing sections shall be constructed to deprive a ward or his representative of any remedy against his guardian, or the representative of the guardian, which, not being expressly provided in either of those sections, any other beneficiary or his representative would have against his trustee or the representative of the trustee. 

Termination of guardianship

Right of survivorship among joint guardians- On the death of one of two or more joint guardians, the guardianship continues to the survivor or survivors until a further appointment is made by the court. 

Removal of guardian- The court may, on the application of any person interested, or of its motion, remove a guardian appointed or declared by the court, or guardian by the court, or a guardian appointed by will or another instrument, for any of the following causes namely:

  1. For abuse of his trust.
  2. For continued failure to perform the duties of his trust.
  3. For incapacity to perform the duties of his trust.
  4. For ill-treatment, or neglect to take proper care of his ward.
  5. For contumacious disregard any provision of this act or of any order of the court.
  6. For conviction of an offence implying, in the opinion of the court, a defect of character which unfits him to be the guardian of his ward.
  7. For having an interest adverse to the faithful performance of his duties.
  8. For ceasing to reside within the local limits of the jurisdiction of the court.
  9. In case of a guardian of the property, of bankruptcy or insolvency.

Discharge of Guardian- If a guardian appointed or declared by the court desires to resign his office, he may apply to the court to be discharged.

Muslim Law

Adoption is the transfer of a child to the parents. Under Muslim law Islam does not recognise the adoption, it is very different from Hindu law. In Muslim law, adoption is recognised as “Acknowledgment of paternity”. 

Acknowledgment of Paternity is the principle that establishes the legitimacy of the child. In this principle child gets acknowledges to become a legitimate child means paternity of the child is established upon him. 

Case law in which the Supreme Court gave judgment related to the adoption, to extend the right of adoption to Muslims also.

Shabnam Hashmi vs Union of India, (2014) 4 SCC 1

Facts of the case:

The judgment of the case, the Supreme Court of India declared that the right to adopt the child by a person as per the provisions of Juvenile Justice Act would prevail over all personal laws and religious codes in the country. The three judges bench consisting of Chief Justice P. Sathasivam and Justice Ranjan Gogoi and Shiv Kirti Singh, however, maintained that 

personal laws would govern any person who chooses to submit himself until such time that the vision of a uniform civil code is achieved.

The Hon’ble Court also stated that adoption was a matter of personal choice and there was no compulsion on any person to adopt or adopt a child.

According to the Act, Juvenile Justice Act, 2002 defines Adoption in section 2(aa). This act confers that the adoptive parents and the child rights, privileges and responsibilities that are attached to a normal parents child relationship.  

Parsi law

“Parsi law” is the only personal law that is defined under the Hindu Adoption and Maintenance Act. There is no other laws governing people belonging to other religions or communities.  The Parsi who are governed in their law by Parsi Marriage and Divorce Act, 1936, and PT III of the Indian Succession Act, 1925 has no provision for adoption. The customary form of adoption amongst the Parsi is known as “Palak”. In the Parsi Law widow can adopt the child on the fourth day of her husband’s death, simply to perform certain annual religious ceremonies. The adopted child does not have the right to property. 

Christian law

“Christians have no Adoption Laws” because the personal law of these communities does not recognize adoption and adoption can take place from an orphanage by obtaining permission from the court under the Guardians and Wards Act. if any Christians want to adopt a child then has to take permission from the court under the Guardians and Wards Act. National Commission on Women has stressed on the need for uniform adoption law. With the help of the National Commission Christians can adopt a child under foster care. If any child is adopted under foster care and when he becomes major he can break all the connections with his family. This type of child has no right of inheritance. 

Case laws:

Philips Alfred Malvin vs V.J. Gonsalves

Facts of the case:

In this case, the court give the judgment that in spite of any absence of any law or alleged existence of any custom enabling Christians to adopt a child, the court legally recognised the validity of an adoption. 

Uniform Civil Code for Adoption

If we talk about Personal Laws in Indian, all are codified to bring social justice, equality among classes and uniformity. This personal law is simple easy and it attempts to make personal faith. It applies to the particular religion. In the case of Uniform Civil Code is also called UCC is a personal lawmaking system that creates a system for adoption for different religions with different rules and regulations. It makes the process of adoption uniform and easy. If we talk about the past situation of the adoption our forefathers do not know UCC but in the present situation, there is a choice to include the provision for UCC to help the future government to implement the law for adoption under UCC. 

Conclusion

The only statute governing adoption in India is the Hindu Adoptions and Maintenance Act or Juvenile Justice Care and Protection of Children Act, 2000. The Juvenile Justice Act has provisions of adoption but in a different context. HAMA has liberalised the law in several aspects like:

  1. Clear religious bias
  2.  Hindu can only be adopted.
  3. Hindu can take and give for adoption

The act has an interest in the care and protection of the child as well as the welfare of the child. Since there is no provision to investigate and look into the suitability and antecedents of the family seeking to adopt, nor any follow-up to ascertain how the child is being treated. Other than that if a foreigner wishes to adopt a child in India he cannot adopt under this act. He can adopt the child under guardian and wards act for being appointed guardian of such a child, has to seek court permission to take the child out of India. Moreover, under this act, the rights which children get are very limited. They have no inheritance rights. Similarly, those who adopt are only guardians and no parents. There is a need for a uniform law on adoption. Thousands of abandoned, orphaned and neglected children need families and innumerable couples wish to adopt, but in the absence of satisfactory legal provisions, the children remain homeless and people desiring to adopt cannot adopt. All attempts to enact such laws are futile. 

Inter-country Adoption

The Hindu Adoption and Maintenance Act applies only to the Hindus. There is no law governing adoption by a different religion, nor is there any statutory provision providing for the adoption of a child by foreigners living abroad.   

CARA

Definition of CARA

Central Adoption Authority is a statutory body of the Ministry of Women and Child Development, Government of India. It functions as the nodal body for the adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions.  

CARA Adoption Guidelines and authorities for adoption in India

  1. Photograph of the current family for adopting the child.
  2. Pan card of the adoptive parents.
  3. Birth certificate of adoptive parents.
  4. Residence proof of adoptive parents.
  5. Proof of income of the family.
  6. Medical certificate from a medical practitioner.
  7. Marriage certificate.
  8. Divorce decree.
  9. Reference letter from relatives in support of adoption.
  10. Consent of the old siblings.
  11. Home study report valid for 3 years only. 
  12. Parents should be declared legal.
  13. Parents can file a suit against the adoption agency for the rejection of adoption.
  14. The appeal referred to in sub-regulation 14 shall be disposed of within 15 days and the decision of the Authority in this regard shall be binding. 

State Adoption Resource Agency 

State 

Name of the SARA

Address

Andaman and Nicobar Island

Directorate of Social welfare

Directorate of Social Welfare, Golghar, Port Blair, South Andaman & Nicobar Islands.

Andhra Pradesh

Women and Development and Child Welfare Department 

Government of Andhra Pradesh 4th floor Jampani Towers, Lodge Center, Amravati Road, Guntoor Andhra Pradesh- 522006

Arunachal Pradesh 

Women and Child Development Department

Social Welfare Department, Government of Arunachal Pradesh post box no- 227, Naharlaguan, Arunachal Pradesh.

Assam 

Social welfare department 

State Child Protection Society, house no- 46, near Sarvey Bus Stop, Beltola, Guwahati- 781028

Bihar 

SARA Bihar 

SARA, 2nd Floor Apna ghar behind Lalit Bhawan Bailey Road Punaichak, Patna- 8000023

Chandigarh 

Department of social welfare

Union Territory Child Protection Society, Near Vatika School, Sector- 19B, Chandigarh

Chhattisgarh 

Directorate Women and Child development department 

State Adoption Resources Agency, Directorate of Women & Child Development Department, 2nd floor, block A Indrawati Bhawan, Atal Nagar, Raipur-492001 Chhattisgarh

Daman and Diu 

SARA Dadar and nagar Haveli

Social Welfare Department ICPS Unit 1st floor Government Quarters, Dholar, Moti, Daman-396220

Delhi 

Dept. of Women and Child Development

Department of Women and Child Development, ICPS unit 1st floor of Adharshila Observation Home for Boys Sewa Kutir Complex Kingsway Camp, Delhi – 110009

Goa 

Directorate of Women and Child Development

Directorate of Women & Child Development, 2nd Floor Old Education Building 18th June Road, Panji, Goa 403001.

Gujarat 

Department of Social Defence 

Gujarat State Child Protection Society Government of Gujarat, Block 19 3rd Floor, Dr. Jivraj Mehta Bhavan, Sector-10/A, Gandhinagar, Gujarat-382010.

Haryana 

Social Justice and Empowerment Department

Women and Child Development Department, Government of Haryana, Bays No. 15-20, Sector 4, Panchkula, Haryana. 

Jharkhand 

Social Welfare Department 

Jharkhand State Child Protection Society(JSCPS) FFP Building, 3rd Floor Room No 313, Dhurwa Ranchi, Jharkhand-834004.

     

Specialised Adoption Agency 

  1. The parents responsibility towards children is to take care, protect them and take care of their well-being and shall cater to their health needs, emotional as well as psychological needs, educational and training needs, leisure and recreational activities, protection from any kind of abuse, neglect and exploitation, social mainstreaming and restoration or as the case may be and follow-up.
  2.  The cases related to admission, restorations, transfers, death, and adoption of children is to be reported in the institutions like Child Welfare Committee, District Child Protection Unit, State Adoption Resource Agency and the Authority through child Adoption Resource Information and Guidance System. These are also the designated portal for child and police.
  3. Status of the child orphan abandoned and surrendered child on the Child Adoption Resources Information and Guidance System, is to be submitted on the website www.cara.nic.in.
  4. Certificates are issued of the children by the Child Welfare Committee to declare the child legality free for adoption in Child Adoption Resource Information and Guidance System within forty-eight hours from the receipt of such certificate and must be uploaded. 
  5. Child study report must be prepared by the social worker and upload it in Child Adoption Resource Information and Guidance System, within seven days from the date, such children are declared legally free for adoption by the Child Welfare Committee.
  6.  The medical tests of the child are to be submitted or uploaded in the Child Adoption Resource Information and Guidance System as provided in schedule IV and it is prepared in the home by the parents or orphanage.
  7. Prepare individual care plan for each child in the following order: restoration to the biological family or legal guardian, inter-country adoption, foster care, and institutional care. 
  8. Album of the children is to be made after the adoption by the parents.
  9. Make efforts to place each child in adoption, who has been declared legally free for adoption by the Child Welfare Committee. 
  10. Ensure that siblings and twins are placed in the same family, as possible. 

Authorised Foreign Adoption Agency

  1. Register the prospective adoptive parents interested to adopt children from India and to complete their home study report.
  2. Follow-up with Specialised Adoption Agency for ensuring early adoption after receipt of No Objection Certificate for the Adoption from the authority. 
  3. Give orientation to the prospective adoptive parents on culture, language, and food of the place to which the adopted child belongs.
  4. Ensure the submission of post-adoption follow-up of the progress of adopted children and to address the cases of disruption, as specified in regulation 19.
  5. Arrange get-together of children of Indian origin and their adoptive families from time to time with the involvement of the Indian diplomatic missions concerned.
  6. Facilitate root search by older adoptees.
  7. Upload attested copies of the adoption application of the prospective adoptive parents in the Child Adoption Resources Information and Guidance System and forward the original of the same to the allotted Specialised Adoption Agency.
  8. Fulfill the legal requirements of the host country as well as the terms and conditions of the authorisation given by the Authority. 
District child protection unit

The district child protection is introduced by the Government of India in the year 2009-10. The main aim to bring this Child Protection Unit:

  • Bring some programs for child protection with some improved norms.
  • Incorporate other interventions that aim to address issues that were so far not covered by earlier schemes.
  • Based on principles of protection of child rights and the best interest of the child.
  • Every District has a child protection unit.
  • The district child protection unit is under the Chairperson of the Chairperson.
  • District Magistrate, District Child Protection Unit has been established in District Panipat from July 2012.

The District Child Protection is set up by ICPS envisages in each district as a fundamental unit for the implementation of the scheme. This unit is under the chairperson of the chairperson. The District Magistrate is the chairperson has been established in District Panipat from July 2012.

Name of the office

Address 

Phone No

District Child Protection unit

District Child Protection Unit Room No- 407, Fourth Floor Mini Secretariat, Panipat

0180-2641574

 

S.no 

Designation 

Name 

Phone no 

 

District Programme Officer Cum Member Secretary

District Child Protection unit

Smt. Usha Arora 

9896179209

      2.

District Child Protection Officer

Smt. Nidhi Gupta

9255644002

Rights of Adopted Child in India

The child has all the rights, as well as the adopted child have all the rights after adoption. The adopted child becomes legal as the normal child. This is defined in the Hindu Succession Act, 1956. If the parents die without making the will of the property then the property always goes to the Class-1-heirs. An adopted children also have rights in the will of the parents.  

Conditions for Adoption

According to the Hindu Law, below the age of 15 years if he/she is not adopted previously. But if any child already gets adopted then he cannot get adopted twice. In the Guardianship Law and the Juvenile Justice Act, 2015, if any child is not Hindu and if he is above 18 years of age then he/she can also be adopted. In other religions like Islam, Christianity, Parsis and the Jews, if they want to adopt a child then they can adopt a child under section 8 of Guardians and Wards Act because they have no personal law for adoption. There are some rules and regulations for the adoption which adoptive parents have to follow. 

Conclusion

At last, I conclude this topic by saying that adoption of the child is the biggest development process. Because of this process, the children who are not legalised are to be legalised after the adoption and they also get all the care and protection from their family. It also maintains the population of the country. If we see, in India, orphanages are full of children, as they have no parents to take care of them. Today many parents give birth to a girl and throw it in the dustbin and don’t even think. This crime is increasing day by day. In today’s generation also people don’t understand the value of girl child after so high education. Half of the population of children is alone they don’t have legal parents to take care of them. Adoption is the best way to give them a good life. It also helps in maintaining the population of the country. But new couples of our generation are working in this matter by adopting the child and give them a better life. 

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