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This article is written by Sri Vaishnavi.M.N., a first-year student of Damodaram Sanjivayya National Law University, Vishakapatanam. In this article, she discusses the different kinds of adoption, illegal adoptions, who can be adopted, who can adopt, what is the process by which one can adopt, who can give in for adoption, how the law of adoption differs from religion to religion, what are the legislations that affect the law of adoption, uniform civil code for adoption, effects of adoption, what are the changes brought in the previous legislations to increase adoption rate, and inter-country adoption.

Introduction

Adoption benefits the orphans, homeless children and destitute youngsters as well as childless couples. Adoption makes life meaningful for lone single adults too as they gain a parent-child relationship. Adoption empowers a powerful relationship between the child and its adopted parents even though they are not related.
Section 2(2) of the Juvenile Justice Act of 2015 states that adoption is the process through which the adopted child is permanently separated from his/her biological parents and becomes the lawful child of his/her adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.

Many Hindu groups practice different procedures for adoption across their cultures and the idea of adoption can be traced back to ancient times through adoption between different ethnic, caste, culture and lingual groups. Generally in older days adoption was practised to get a male heir. While some adopt legally giving full rights to the adopted child as that of the biological child, some just Act as legal guardians until they attain the age of legal maturity. Different religious faiths and lack of uniform civil code made adoption impossible across religions and this had a derogate effect and unjust to destitute youngsters.

What are the different kinds of adoption?

The Juvenile Justice (Care and Protection of Children) Act of 2015 read with Adoption Regulation of 2017 has recognized five kinds of adoption namely:

  • An abandoned, surrendered, destitute children adopted by an unrelated person(s) living within the country.
  • An abandoned, surrendered, destitute children adopted by an unrelated person(s) living outside the country.
  • A related child by relatives living within the country.
  • A related child by relatives living outside the country.
  • Adoption of a child by step-parents within the country.

What are illegal adoptions?

When the adoption is done not per the adoption laws and procedure it is called as illegal adoption. The illegally adopted child usually tends to suffer abuses. To eradicate such abuses The Hague Adoption Convention was established. Kidnapped or abducted children, illegally trafficked children, bonded labour children and illicit or illegal Activities against children are resulting in an illegal adoption. An illegal adoption may be mainly in two forms:

  1. Illegal actions or misconduct from adoption agencies.
  2. Black market adoptions.

Added to the above, mistakes made by adoption agencies, courts, and poorly advised prospective parents may result in an illegal adoption.

How does adoption work?

Parents of children below 6 years who were unable provide to provide for them may relinquish them to an adoption agency, or deserted and abandoned youngsters whose parents or guardians cannot be traced may be declared eligible for adoption by the child welfare committee. Alternatively, at times, children can be declared eligible for adoption by the court through Juvenile welfare board. This may be for the rehabilitation of delinquent youth.

Who can adopt?

Section 41 (6) Juvenile Justice (Care & Protection of Children) Act of 2000 states that the court is empowered to allow a child to be given in adoption to the following persons:

  • A person irrespective of his/her marital status,
  • The parents to adopt a child of the same sex irrespective of the number of existing biological sons or daughters, and
  • Childless couples.

According to Section 57 of the Juvenile Justice (Care and Protection of Children) Act of 2015 and Regulation 5 of Adoption Regulations of 2017.

General

  • Prospective adoptive parents (PAP) are physically, mentally and emotionally stable, financially capable and who do not have any life-threatening medical conditions are eligible to adopt.
  • The minimum age difference between the child and PAP(s) shall not be less than twenty-five years.

Married Couple

  • Married couples with at least two years of a stable marital relationship.
  • Both spouses must consent for adoption in case of a married couple.
  • The composite age of the married couple does not exceed a hundred and ten years.

Single Parent

  • Single persons with or without biological or adoptive children can adopt provided they satisfy the following:
    • A single female can adopt a child of any gender.
    • A single male is not eligible to adopt a girl child.
    • Age of a single parent does not exceed fifty-five years.
    • Must have less than four children unless they are adopting a child with special needs, a hard-to-place child, a relative’s child or a step-child.
  • The age of the child that could be placed with PAPs differs based on the age of the PAPs on the date of registration as given in the following table:

Age of the Child

Maximum composite age* of the prospective adoptive parents

Maximum age of the single prospective adoptive parent

0-18 years

90 years

45 years

4 to 18 years

100 years

50 years

8 to 18 years

110 years

55 years

Maximum Composite age is the total of the age of both the parents’ ie parent A age + parent B age.

Capacity to Adopt for a male

For a male who wants to adopt he needs to satisfy the following conditions,

  1. Should have a sound mind
  2. If married consent of the wife is required.

Capacity to Adopt for a female

For a female who wants to adopt she need to satisfy the following conditions

  1. Unmarried
  2. Divorced
  3. Widowed or
  4. Her husband suffers from certain disabilities
    1. Ceased to be a Hindu
    2. Has renounced the World
    3. Has been declared to be of unsound mind by the court.

Which child can be adopted?

A child can be adopted if she/he is:

  • A child who has been declared by the child welfare committee (CWC) as legally free for adoption. That child may be an orphan, abandoned or surrendered (OAS) child or declared as such under the provisions and rules of the Juvenile Justice (Care and Protection of children) Act of 2015.
  • A child of blood relations (a child’s paternal uncle or aunt, a maternal uncle or aunt or paternal and maternal grandparents are related through bloodline and called blood relations)
  • A child or children of the spouse from an earlier marriage. In this case, the child or children is\are should be surrendered by the biological parent(s) for adoption by the step-parent. [Section 38 and 56 of the Juvenile Justice (Care and Protection of Children) Act of 2015 and Regulation 4 of the Adoption Regulations Act of 2017]

Who can give in Adoption?

Section 9 of the Hindu Adoption and Maintenance Act deals with who can give in adoption,

Only with the consent of father and mother or guardian can give a child for adoption.

The father alone can give in adoption if the mother,

  • Has ceased to be Hindu.
  • Renounced the world or
  • Is of unsound mind.
  • The mother alone can give in adoption if the father,
  • Is dead.
  • Completely renounced the world.
  • Has ceased to be Hindu.
  • Declared by the court as of unsound mind.

What is the process by which one can adopt?

  • The adopting parents’ capacity to take care of the baby should be validated by submitting the Central Adoption Resource Authority (CARA) prescribed documents.
  • A professional social employee or worker assess the mental and physical ability of a prospective mother and father what want to adopt a little one.
  • Selecting or identifying a child for adoption by foster parents.
  • Filing of docket petition at the relevant verification of the adoption petition by the welfare agencies.

How is the adoption law under different religions?

Hindu law

According to Hindu beliefs a son is indispensable as he is required to perform last rites to prevent the parents from hell. He is also important for the welfare of the family as the wealth descends through the male law in India treats an adopted child as equivalent to the biological child.

Under the old Hindu Law,

  • Adoption is strictly based on caste and Gotra.
  • The orphan child cannot be adopted.
  • Only a male could be adopted and a female child could not be adopted.
  • Only the husband had the right to adopt and the wife’s consent or dissent for adoption is not at all considered.

As time flies the above said restrictions have changed. Gender biases in the adoption process have been minimized and almost eliminated in today’s modern society.

Under the modern Hindu Law,

  • Any Hindu irrespective of gender can adopt.
  • He or she should have attained age legal majority and should be of sound mind.
  • He or she should satisfy the rules and regulations enumerated by the Hindu Adoption Maintenance Act of 1956.

Muslim Law

Kafala is the Islamic term for adoption. The Kafala is highly regulated with stringent rules and regulations to preserve the biological lineage. Hence the adoptive parent plays the role of a guardian rather than a conventional parent. An adopted child cannot be attributed as the biological one and it is unlawful to do so. This so not to confuse the blood lineage.

Rules for Kafala under Islamic law:

  • The surname (family name) of the adopted child not changed to the adoptive family but remains the same as that of Biological family.
  • Normally the adopted child does inherit from the adoptive parents but inherits from biological parents.
  • The adoptive parents Act, merely as trustees of property or any other wealth provided by the biological family and should not intermingle the adopted child’s property or wealth with their own.

The adoptive parent’s role is very much valued and considered important under Islamic law though they are considered as trustees and caretakers of the adopted child, not as a full replacement for the biological parent.

Kinship or ties of the family network is given utmost importance in Islam. This kinship is very strong, vast and wide. Hence it is practically difficult to find a completely abandoned or orphaned child without a single family member to support except in case of war or natural calamity. It is also very difficult to adopt the child outside the family, community or country. Islamic emphasis this to safeguard the familial, cultural and religious roots.

Christian Law and Parsi Law

There is no civil law for Christians for adoption. Anyone who wants to adopt has to obtain permission from the court. This is done under the Guardians and Wards Act, 1890. Under this law, the adopted child is said to be under foster care and legally free to break away from the adopted family once he/she becomes major and does not have the legal right of inheritance. Hence the national commission for women stressed for uniform civil law for adoption.

The property and estate of the deceased adoptive parents distributed among legal heirs as the adopted child cannot be natural legal heir and property rights arise from adoption as there is no statutory or law for governing adoptions for Christians in India. Christians can adopt children under the resort to section 41 of Juvenile Justice (care and protection) Act, 2006 along with the guidelines issued by the concerned state government.

What are the legislations that affect adoption in India?

The following three legislations govern adoption in India:

The Hindu Adoptions and Maintenance Act governs the adoption by Hindus, Jains, Buddhists and Sikhs. Irrespective of faith and religion adoption can be done under the provisions of the Juvenile Justice (Care & Protection of children) Act, 2015.

Hence the government is in the process of making the Juvenile Justice (Care & Protection of children) Act, 2015 as the main legislation for governing adoption India. For this disallow of Hindu Adoptions and upkeep Act, 1956 is planned by the government. This is to have a proper uniform adoption process across religions and cultures.

Guidelines under Juvenile Justice Act

The nodal agency for the adoption of a child is the Central Adoption Resource Authority (CARA) a statutory body under the ministry of women and child development laid down the guidelines to be followed for adoption. These guidelines are included in the detailed provisions of the Juvenile Justice Act.

Adoption agencies, child care institutions and juvenile homes should be registered with the nodal agency as per the Juvenile Justice Act. The Juvenile Justice Act, 2015 supersedes all previous laws and amendments for adoption.

Juvenile Justice Act mandates that adoption of orphan surrendered or abandoned child should be done through authorised agencies and as per the guidelines of CARA. Any adoption violation of this is considered illegal.

The Hindu adoption and maintenance act is the primary adoption law before the enactment of the Juvenile Justice Act, 2000. It is not suitable for adoptions and not supported by the Hague Convention on adoptions. It also does not provide for the assessment of the mental and physical ability of potential adoptive parents and lacks provisions for post-adoptive follow up by nodal or registered agencies. This generally resulted in abuses on adopted children or us, ing them for illegal purposes.

As other religions such as Christians, Muslims or Parsis don’t have a personal law governing adoption they can only adopt under the Guardian and Ward Act. This lacks the legal provision for an inheritance to the adopted child as it is considered as foster care, not full adoption.

Hence to implement the articles of The Hague Convention the Juvenile Justice Act of 2000 is envisioned and further, the rules and regulations for adoption across various faith as well as inter-country are strengthened in the Juvenile Justice (Care & Protection) Act, 2015.

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Guidelines under the Hindu Adoption and Maintenance Act, 1956

After independence, the need for equality and social justice across gender gave arise to modernise and codify the Hindu civil law. The Hindu adoption and maintenance Act, 1956 addresses the old discriminatory provisions as it is uniform for all genders both male and female.

The Hindu Adoption and Maintenance Act has provisions for Adoption, Gender bias, Capacity to adopt and capacity to give in adoption.

Guidelines under Guardians and Wards Act, 1890

To satisfy the need for potential adoptive parents other than Hindus the Guardians and Wards Act, 1890 is enacted. This for Christians, Muslims, Parsis and Jews who don’t have personal laws governing adoption can adopt children under this Act,. It is sensitive to religious views and a universal law for all religions. The state of Jammu and Kashmir which enjoys a special status under article 370 of the Indian Constitution is exempted from this law.

The Guardian and Wards Act, grants guardianship of the child not the rights of full adoption. This is particularly for religions other than Hindu were no personal laws exist for adoption or prohibits full adoption.

Overview of the Guardian and Wards Act,

  • Anybody whose age is less than 18 years is considered as minor.
  • A guardian may be appointed by a court of law or other competent authority to take care of the minor.
  • The court or competent authority can decide on whom to be the guardian or remove one as a guardian.
  • A person who wants to be the guardian of a child has to apply to the court of law or other competent authority and after due diligence, he/she may be appointed as guardian.
  • The court will hear about the reason for guardianship, information about the prospective guardian as well as the child to make the decision.
  • Unlike Hindu adoption and maintenance Act, according to the Guardians and wards Act, more than one guardian may be assigned to a minor.
  • Court of law considers the age, sex and religion of the parent of the minor as well as the preference of the minor under its discretionary powers before awarding the guardianship.

Effect of Adoption

The adopted child cuts out all relationships with biological family and receives all natural rights and obligations of a biological child of the adoptive parents.

Adoption is permanent in nature as per the Hindu Adoption and Maintenance Act,. It is so that the adopted child cannot turn back to biological parents and it is the same as adoptive parents cannot denounce the adopted child. It is permanently binding on both parties.

Sections 12 to 14 deals with the laws concerned to adoptive parents and step-parents. When the Husband has more than one wife and adoption is with the consent of them then the who he married first will be the adoptive mother and other wives are called stepmothers.

The Supreme Court under section 5(1) of the Hindu Adoption and Maintenance Act, held that the adoption by a widow also binds the deceased husband along with all legal right to family title and inheritance in the case of Sawan Ram V. Kalavati [1].

Gender Bias in Adoption

Conceptually the gender bias is removed in the adoption process by the enactment of the Hindu adoption and maintenance Act, but in reality, a married female cannot adopt even with the consent of the spouse unless when the husband suffers some form of disability or deceased. This is a clear case of gender bias in terms of adoption. The law gives the male a broader right while restricting the female. This is clearly referred to in the case of Malti Roy Choudhury v. Sudhindranath Majumdar[2].

In the case of Malti Roy Choudhury, the appellant, Malti had been adopted by the deceased mother. After her mother’s death, she became the sole heiress and applied for estates and properties left behind by her mother. There were a lot of shreds of evidence which have been presented by the appellant like proof of the ceremony of adoption, natural parents handing over the child to the adoptive mother in the presence of her husband and the priest; acknowledgement through school records; Malti being performed the funeral ceremony of her mother. But however, the Court did not accept the argument and it was held that “under the provisions of the Act, the husband alone can adopt, but here, it is an admitted position that Malti was adopted by the mother Tripti not by the father and thereby, rejected her appeal.

Thus we can understand that this law gives veto power in adoption exclusively to males and only selective rights to females in the adoption process. To be on par with the modern progress and gender equality some of the sections the Hindu adoption and maintenance Act, need to be changed and should give equal status to women.

What are the changes brought in the previous legislation to increase adoption rate?

Central Adoption Resource Authority (CARA) which functions under the Ministry of Women and Child development notified the adoption regulations in January 2017 which replaced the Adoption Guidelines 2015. This is done to strengthen and streamline the adoption process and amendments are proposed to the Hindu Adoptions and Maintenance Act,.

The salient aspects of new Adoption regulations 2017

  • Strive for transparency,
  • Choice of adoptive parents,
  • Ethical practice,
  • Defined timeline,
  • Deinstitutionalization of children

The new regulations will help to increase positive adoptions while curbing illicit processes in adoption. Legal adoptions are in constant decline since 2012-13. Inter-country adoptions are also in decline year to year. After the new adoption regulations, there is a slight increase than the previous year. The Women and child development ministry is hopeful that new regulations will these figures.

Uniform Civil Code for Adoption

India follows three sets of law codifies, namely

  1. Indian Penal Code (IPC)
  2. Civil Procedure Code (CPC)
  3. Criminal Procedure Code (CrPC)

While the Indian Penal Code and Criminal Procedure Code are common for all the citizens of India the civil code which governs the personal lives of citizens is exclusive for each religion and there is no common code for marriage, divorce, adoption and inheritance across the religions. The inheritance is somewhat resolved to give equal rights to women the other issues of marriage, divorce and adoption are exclusively dealt under each religion. Uniform civil code is requested by many especially for adoption as non-Hindu guardians cannot enjoy full parental rights and vice versa for the adopted child.

Even religious conservationists are not opposing uniform law for adoption. The need for statutory adoption law for all religions is felt to enjoy the total legal right of parents as well as children. Though The Hindu Adoption and Maintenance Act, statutorily recognise adoption it lacks equal adoptive rights to women.

If a uniform civil code for adoption is available women and other religious women and men can legally adopt and more children will be benefited with parental care and inheritance rights. As adoption is based on one’s personal wish and preference a uniform law for adoption may not violate the religious beliefs and regulations. The right to adopt is a fundamental human right and as per the directive principles of state policy, the central government can enact laws to safeguard that fundamental human right.

As India is a signatory to the Child Rights Convention(CRC) and the Universal Declaration of Human Rights (UDHR) it is mandatory to imply the articles of those conventions through statutory laws. That process is taking its own time and social activists are pitting for faster implementation of it.

A uniform civil code will make the country more secular and removes disparity among religions in case of personal laws. This will increase the brotherhood among the religions. As religion plays a minor role on individuals likes and dislikes and personal lives implementing uniform civil code for personal laws other than the right to worship and right to follow a religion will be welcomed by most of the people.

Inter-Country Adoption

Inter-country adoption is:

  1. Legally adopting a child from a country other than one’s native country.
  2. Bringing that adopted child to the adoptive parent’s native country.
  1. The adoption process for intra and inter-country are similar ie. transfer of right over a child from a biological parent or guardian to the prospective adoptive parent/s.

Lakshmi Kant Pandey’s public interest litigation case[3] is the most important in the area of inter-country adoption. In 1982, a petition was filed under Article 32 of the Constitution by advocate Lakshmi Kant Pandey alleging malpractices and trafficking of children by social organizations and voluntary agencies that offer Indian children for adoption overseas. The petition was filed on the basis of a report in the foreign magazine called “The Mail”.

The petitioner accordingly sought relief restraining Indian based private agencies “from carrying out the further activity of routing children for adoption abroad” and directing the Government of India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian children by foreign parents.

By an order dated 6.2.1984 the Supreme Court laid down detailed principles and norms to be followed for the adoption of children by the people overseas. Many examples and references were cited while ‘discussing the issue, including the statutory provisions and the international standards. While discussing the issue the court said:

“When the parents of a child want to give it away in adoption or the child is abandoned and it is considered necessary in the interest of the child to give it in adoption, every effort must be made first to find adoptive parents for it within the country because such adoption would steer clear of any problems of assimilation of the child in the family of the adoptive parents which might arise on account of cultural, racial or linguistic differences in case of adoption of the child by foreign parents. If it is not possible to find suitable adoptive parents for the child within the country, it may become necessary to give the child in adoption to foreign parents rather than allow the child to grow up in an orphanage or an institution where it will have no family life and no love and affection of parents and quite often, in the socio-economic conditions prevailing in the country, it might have to lead the life of a destitute, half-clad, half-hungry and suffering from malnutrition and illness”.

As per the Supreme Court of India ruling a central government recognised or licensed child welfare agency must sponsor the adoption application to adopt a child from a non-resident Indian or persons of Indian origin or foreigners. Added to that a concerned department responsible for child welfare in the foreign countries I which the proposed adoptive parent is a resident also sponsor such application.

If it is done through a foreign agency then that should be recognised and authorised by CARA and ministry for Social Justice in India for handling the overseas adoption process. No direct inter-country applications are entertained by any registered agency in India. Doing so is illegal and punishable under law.

Conclusion

Adoption in olden days yielded an heir to the adoptive parents and son to perform religious rights. It is on the adoptive parents wish and benefits the adoption happened in due course with the development of social justice, equality of law and welfare of children. Adoption in modern days viewed from the point of welfare and psychological development of the adopted child.

Both the adoptive parents and child are to benefit from adoption. The prospective adoptive parent gains a son or daughter to show their love and nurture them to their heart’s content. The adopted child gets a supportive and loving parent who replaces the loss of the biological parent. Anything less than this result in the failure of the adoption concept especially for the child.

Though Numerous laws, regulations, guidelines and monitoring agencies were employed to prevent abuses on the adopted child active follow up of process is necessary for the welfare of the adopted child. The major focus is on the child as he/she is the future pillar of the society and need to have proper physical and mental makeup for their prosperous future. Guidance and training from authorised welfare agencies and nodal agencies can ensure this.

The adoption by a single parent is alarmingly high nowadays. Hence it is the responsibility of the child care agencies to train them to handle the children in such a way that they should not feel abandoned or not taken care properly. Gender and religious equality in the adoption process is almost addressed in the Juvenile Justice (Care & Protection) Act, of 2015. The central and state governments need to monitor the latest socio-cultural developments and amend the relevant acts to protect and preserve the rights of children.

Reference

  1. Sawan Ram & Others vs Kala Wanti & Others on 19 April 1967 Supreme Court of India.
  2. Malati Roy Chowdhury vs Sudhindranath Majumdar And Ors. on 4 September 2006 Calcutta High Court.
  3. Lakshmi Kant Pandey v. Union of India, 1984 AIR 469 the Supreme court of India
  4. Adoption Regulations, 2017 framed by ‘Central Adoption Resource Authority (CARA) as mandated under section 68 (c) of Juvenile Justice (Care and Protection of Children) Act, 2015.
  5. Juvenile Justice (care & protection) Act, 2015.
  6. Juvenile Justice Act, 2000.
  7. Hindu Adoption and Maintenance Act, 1956.
  8. Guardian and Wards Act, 1890.

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