child adoption laws

This article on child adoption laws is written by PRAGATI SINGH from Lucknow University.

“There are no unwanted children, just unfound families.”

INTRODUCTION TO CHILD ADOPTION IN TWENTY FIRST CENTURY

Adoption has always been a sacred act performed by the humans. As per the Merriam-Webster legal dictionary legal adoption means to take voluntarily (a child of other parents) as one’s own child especially in compliance with formal legal procedures”.

Adoption can be legal as well as illegal. Under Indian law adoption is legal coalition between the party willing for adoption and a child, it forms the subject matter of ‘personal law’ where Hindu, Buddhist, Jaina or Sikh by religion can make a legal adoption. In India there is no separate adoption laws for Muslims, Christians and Parsis, so they have to approach court under the Guardians and Wards Act, 1890 for legal adoption.

As we mentioned above that in India only legal adoption is recognised and valid, so firstly we have to understand that “what is legal adoption”?

According to section 2(aa) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, “adoption means the process through which the adopted child is permanently separated from his biological parent and becomes the legitimate child of his adoptive parents with all right, privileges and responsibility that are attached to the relationship”.

 

WHO IS ALLOWED TO ADOPT A CHILD IN INDIA?

In India, an Indian whether he is married or single, Non-Resident Indian (NRI), or a person belonging to any nationality (foreigner) may adopt a child. The guidelines and documentation process for each group of adoptive parents may differ.

 

WHO IS ELIGIBLE TO ADOPT A CHILD IN INDIA?

Under THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 following category of people can make adoptions:

  • “Any male Hindu (including Buddhist, Jain or Sikh by religion)  who is of sound mind, not a minor and is eligible to adopt a son or a daughter”. But if such male has living spouse at a time of adoption then he can adopt a child only with a consent of his wife (unless she has been declared incompetent to give her consent by the court).
  • “Any female Hindu (including Buddhist, Jaina or Sikh by religion)  who is not married, or if married, whose husband is not alive or her marriage has been dissolved or her husband has been declared incompetent by the court has the capacity to take a son or daughter in adoption”.

Conditions for adoption by Hindu couples or single parent

  1. “In case of adoption of a son by any Hindu male or female, there should not be any living son in the succeeding three generation of the party (whether by legitimate blood relationship or by adoption) at the time of adoption.
  2. In case of adoption of a daughter by any Hindu male or female, they should not have any daughter or son’s daughter at the time of adoption.
  3. Where there is an adoption of a daughter by a male then the adoptive father should be at least twenty-one years older than the child.
  4. Where there is an adoption of a son by a female than the adoptive mother should be at least twenty-one years older than the child”.   

   

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Personal laws of Muslim, Christian, Parsis and Jews do not recognise complete adoption so if a person belonging to such religion has a desire to adopt a child can take the guardianship of a child under section 8 of the Guardians and Wards Act, 1890.

This statute only makes a child a ward, not an adoptive child. According to this statute, the movement child turns to the age of 21, he is no longer consider as a ward and treated as individual identity.

In “Mohammed Allahadad Khan v. Muhammad Ismail” it was held that there is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System. Acknowledgement of paternity under Muslim Law is the nearest approach to adoption.

However, an adoption can take place from an orphanage by obtaining permission from the court under Guardians and Wards Act. Christians can take a child in adoption under the Guardians and Wards Act, 1890 only under foster care. Once a child under foster care becomes major, he is free to break away all his connections from his adoptive parents.

Intercountry adoption:  In India, there is no separate act that governs adoption by foreign citizens or NRIs but it is covered under Guidelines Governing  Adoption of Children, 2015. Under these guidelines misuse or illegal use of the children through adoption is prevented. As per the Supreme Court Guidelines for intercountry adoption a foreign parent can adopt an Indian child before he/she completes the age of 3 years. In the absence of any concrete Act on intercountry adoption, the provisions of Guardians and Wards Act, 1890 will be followed for adoption.

In case of adoption of abandoned, abused and surrendered children all intercountry adoptions shall be done only as per the provisions THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 and the adoption regulations framed by the Authority.

Guardians and Wards Act, 1890 remains silent about the adoption of orphans, abandoned and surrendered children. Chapter VIII of the Juvenile Justice (Care and Protection of Children) Act, 2015 deals with adoption in such category of the child. Section 58 of this Act defines that any Indian citizen of India, irrespective of their religion, if interested to adopt an orphan or abandoned or surrendered child, may apply for the same to a Specialised Adoption Agency, in the manner as provided in the adoption regulations framed by the Authority.

Section 57 of this Act deals with Eligibility of prospective adoptive parents. As per this Section, the adoptive parents should be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him and both partners must consent for the adoption. A single or divorced person can also adopt in accordance with the provisions of adoption regulations framed by the Authority but a single male is not allowed to adopt a girl child.

WHO CAN BE ADOPTED?

As per the Hindu law following child may be adopted namely-

  • The child can either be a girl or a boy if he/she is a Hindu.
  • He/ She has not been adopted before.
  • The age of the child is below 15 years.
  • The child should not be married.

As per the Guardianship law and The Juvenile Justice (Care and protection of children) ACT, 2015 following child may be adopted namely-

  • Who is not a Hindu?
  • Who is minor (not completed the age of 18 years).
  • An orphan or abandoned or surrendered child.

 

WHAT  ARE THE NECESSARY PROCEDURE FOR A VALID ADOPTION?

  • Under The Hindu Adoption and Maintenance Act, 1956 the party willing for adoption can make application to Child Welfare Agency. Registration can be done either an Adoption Coordinating Agency (ACA) found in each state’s capital city, or an agency certified by the Central Adoption Resource Authority (CARA) in New Delhi.
  • After this, the agency conducts a preliminary interview with the adopting couple in order to understand their intention and motivation behind adoption.
  • Once the party decides which child are they going to adopt they file the petition at the court of apt jurisdiction, where court hearing takes place regarding adoption (the court is required to dispose the adoption case within 2 months).
  • Once the Court issues the decree, the adoption is finalized.

Under The Guardianship and Wards  Act, 1890 the party seeking guardianship has to file application to the Court where they provide complete information on them, reasons behind to become guardian of a child and other information asked in the application. After admitting the application, the court will set the date of hearing where it will hear and view evidence, requirements and considering the interests of a minor, then court will decide whether the guardianship of a minor should be given to such party or not.

There is a directive that adoption proceedings have to be completed within two hearings, and the petition has to be disposed of within two months of the filing of the petition. The certified copy of the order has to be obtained by the agency within 10 days. The agency must also obtain the birth certificate of the child, with the names of the adoptive parents.

 

OTHER ASPECT OF ADOPTION

 

  • HOW MUCH TIME DOES THE ENTIRE PROCESS TAKE?

Adopting a child in India is a long process. Earlier, parents who wished to adopt would go to the nearest agency and register. The agency would match preferences of the couple with the children available. The match may or may not happen, and would take months, even years. Now, all adoption agencies have to upload details and the Central Adoption Resource Authority (CARA) software will match preferences across the country. This has lessened the duration of an adoption.

 

  • WHAT WILL BE THE AGE OF THE BABY I CAN ADOPT? WHAT IS THE MOST COMMON RANGE?
  1. Under Hindu Adoption and Maintenance Act,1956 a child who has completed the the age of fifteen years shall not be given in adoption unless there is a custom or usage applicable to the parties who is willing to make an adoption which permits them to adopt a child above the age of fifteen years.
  2. Under The Guardians and Wards Act any child who had not completed 18 years of age can be adopted.

 

  • CAN I SPECIFY THE GENDER AND THE AGE OF KID I WANT TO ADOPT?

An adoptive parent is allowed to ask for a child, as per their preferences. For example a parent may ask for a child of a certain age, gender (if it is the first child in the family), skin colour, religion, special features, health condition, etc. However, greater the specifications, more difficult it is to find a child who conforms to them.

 

  • WILL I BE GIVEN MANY OPTIONS TO CHOOSE FROM?

Since India has an overpopulation problem, with so many unwanted children, there are various options for the adoptive parents. Depending on the adoptive parent’s desired details, children are scrutinised to find a suitable match. When a child with the desired characteristics is found, she is shown to the prospective parents. In case the parents are unhappy with the selection, about two more children with the same characteristics may be presented to the parents.

 

  • CAN A PERSON ADOPT A CHILD IF HE ALREADY HAS A CHILD?

Yes. The gender of the child becomes a factor here. The Hindu Adoption and Maintenance Act, 1956 (HAMA, under which Hindus, Jains, Sikhs, Buddhists and Arya Samaj adopt) allows only to adopt a child of the opposite gender to the adoptive parent which they already have. There is no such problem under the other 2 adoption laws, namely the Guardians and Wards Act, 1890 and the Juvenile Justice Act, 2015 which has enabled many Indians to adopt a child of the same gender.

 

  • IS THERE A MINIMUM INCOME NEEDED FOR ADOPTING A CHILD?

As per CARA, couples must have a minimum average monthly income of Rs. 3000. Lower income may be considered considering other assets and support systems e.g. one’s own house etc.

 

CONCLUSION

An adoption is a pious act so it should be performed by the people at a large scale because India is a country where there is too much population and there is a huge number of unwanted children.

In the past few years, agencies and adoptive parents have noted a growing preference for the girl child over boys in India’s adoption system. Adoption is one of the ways to control and prevent female foeticide and infanticide problem raging in India. And what could be better to give a good and standard life to a child who really need it.

 

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34 COMMENTS

  1. Hi..your article is great! I have a question. Can a married woman adopt a girl child from her relatives? Her husband is abroad and has given his oral consent for the same. Is the adoption deed if made, between the woman and girl’s father legal?

  2. Hi… we are trying for a baby since 6yrs but no luck. Can I adopt my brothers daughter who is 2 months old ?? What’s the procedure?

    • In India the adoption laws varies from religion to religion. Please refer the respective statute that i have discussed above regarding the adoption in each religion. The procedure of adoption will be the same with the consent of parent(if available with genuine reason to give the baby in adoption).

  3. I need some small information. We adopted a child when he was 4 months old. We applied for healthy child. They provided us with basic health tests. And at that time child was normal to his age. But as time passes we find some delayed mile stones and gradually the kid started getting epilepsy. When we took him to paediatric neurologist after MRI he told the kid has congenital brain disease and he can’t be independent in future. We are heart broken. We wanna return the child. And we felt cheated by adoption agency. How to proceed to return the child? Can we file a case against agency?

  4. Please inform me of how I can adopt my brother’s two grandchildren who are 2 and 4 years old and are oprhans. He’s not financially strong and lives in Jaigaon, border of Bhutan.
    Please respond.

  5. Please tell me ,a child already adopted by others ,can also be adopted by me ? Is there any legal complication. My friend wants to adopt an already adopted child to give his entire property .He is unmarried childless Male of 82 .kindly suggest

  6. Hi,

    I live in Jammu and Kashmir. My mother in law did not have a son and her husband had died long time back. When my Son was born, HE was adopted at 6M of age in 2006 thru proper documentation in court but we never registered in any adoption agency(Neither State orr National)Thereafter all documentation like Ration card, Adhar card, School certificates he is mentioned as Son of my father and mother in law. In 2015 my mother in law also died so my wife(Real mother) became the guardian of my son after we filed a petition in the court.
    Unfortunately, after adoption of my Son, we had also no more children and my son’s certificates all mention Fathers and Mothers name as Late XXX to which the adopted Son is objecting.
    Question: IS there a legal way to undo the adoption?

    Question;

  7. Hi,
    I have three questions, please reply.

    1)I am single and 26 year old women, i want to adopt a child. Is there any rule that after marriage i won’t be allowed to become a biological mother.

    2) if i adopt a girl child i can not adopt another girl child in future.

    2) Will i need any consent from my family members to adopt a child?

    • Answers related to your query are as following-
      1. Yes you can adopt a child but in case of a male child the age gap has be 21 years in between you and that child. And there is no such restriction in India regarding becoming a biological mother when you already have a child through adoption.
      2. Under Hindu adoption Act there is no such restriction in reference to female child adoption. But when a person already have a male child then he or she cannot adopt a male child again. So you can adopt a girl child again.
      3. Any unmarried party who is eligible to maintain a child, does not require to get a consent from their family but if a party is married then consent of the spouse is mandatory in adoption and cannot proceed further without it.

  8. Is it possible for a married woman, who’s neither divorced nor legally separated from her husband, but living separate for more than 2 years and having a reliable source of income, to adopt a girl child? What are the conditions in which she can own a child?

  9. I want to know, does one can adopt a child whose mother dead during delivery and family doest want to take his or her responsibilities? Is there any option to select this kind of child?

    • You can take the guardianship of such child under the THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956, you may either with the consent of the parent or by the order of the court. SECTION 13 of this Act clearly states that, In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

  10. All the adoption laws state that an adopted child cannot be adopted again. Are there no exceptions. I know of an adopted baby whose mother passed away and the father does not want the responsibility of the child. Can this baby be adopted by close family friends or relatives. Returning the baby to the orphanage is not an option. There must be some help out there for t his baby.
    Where or who can they turn to for help? Should CWC be involved?

    • UNDER THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956, you may either with the consent of the parent or by the order of the court, can get the guardianship right of such child. please refer this statute it would help you.

    • If the parent of such child is not alive then in such case either the court will grant you the right of adoption or it will make you natural guardian of the child.

  11. What are legal aspects in a case where anybody has a propsal of marrying son/daughter which was adopted by another parents?

  12. A few days ago a woman in a hospital gave birth to a boy The woman did not get married, so she did not want to keep the boy with her fear of reproach. In that hospital, a nurse contacted with us and we agreed to adopt this boy and the mother of the boy told us that the legal action regarding adoption will be done after 2 days. We took this child to our house, two days later, when we tried to contact with the mother of the boy, it was found that the woman had mentioned her wrong residence address due to her fear of reproach. Our case went to investigate by the police and after investigating the police, the boy took us back and handed over to a Anaath Ashram then we have applied to Deputy Commissioner, S.A.S. Nagar (Mohali) for permission to adopt the above said son, from where we have no response and we do not know the mother of that child.
    Is there no law in India, under which we can adopt this boy?
    Did we don’t have any right over the above said child because the child was handed over to us by his mother?
    Lastly how can we adopt the above said child by way of legal action?

  13. My name is Pantham Arunakranthi, working as a volunteer in NGO Icha Foundation, Kondakarla village near Visakhapatnam. My husband Anand is working As Assistant Manager in pharmaceuticals company. We both live in the Icha Foundation. Icha Foundation is home for abandoned and special needs children. I met a transgender child Tanusree in this foundation when she is 5 months old. I started taking care of her from then. When I want to adopt her I was misguided by child welfare committee that I can’t adopt her since she is a transgender child. But I have a strong wish to adopt her. Recently I came to know about CARA and very happy that I can adopt my little one.Once again approached child welfare committee Shishugraha staff. They said the child Tanu is reserved by some foreign couple and under process. Sir/Madam I am taking care of child from past 4 years and child thinks we are her parents. I am married for 9 years doesn’t have children and can submit all the documents for the cara procedures. As Tanusree comes under special needs child and transgender we promise Me and my husband will give her the best life possible. Please consider this as special case as the child too likes us. She is in Upper Kindergarten can say her opinion. I too believe every abandoned child deserves happy home, so please consider this as special request and please give a chance to adopt the little Tanusree. I beg u please help us in adopting Tanusree. We as parents and child are emotionally connected to each other. Please do the needful. I pray to God every second that Tanusree will be my child forever. Please help. Please help. I will submit all the documents and will do all the legal proceedings. Please kindly help. Waiting for positive help from ur end. Thank you.

  14. Sir, In Hindu if a male person married another women while first wife is alive n living together with him and they have 2 children (Sun & Daughter) already, if he adopts a girl chaild with second wife, will that be a valid adoption?

    • The man will be liable for bigamy if, he has not been legally separated from his former wife and his adoption with second wife will be invalid. But, if, he has been legally separated from the former wife then his adoption of a baby girl will be valid as there is only restriction in regard of adoption of a son under the hindu adoption law.

  15. The law regarding the capacity of a female hindu to take in adoption has changed and needs to be updated. Post 2010, even a married hindu woman can take a child in adoption in her own right but with the consent of the husband.

    • what you are saying that is already implicit above under the heading “who is eligible to adopt”, in the lines, “or if married, whose husband is not alive or her marriage has been dissolved or her husband has been declared incompetent by the court has the capacity to take a son or daughter in adoption”, which clearly states that her spouse is either not alive or unable to give consent. This article was written keeping in the view “The personal law(amendment) Act, 2010”.

  16. Hi Ajay Thakur,
    Thank you for your blog. It was very informational and helpful. My wife and I both live in USA on H1B visa and planning to adopt a child in India through THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956. While the instructions under the act were clear for me I am not clear on the process of getting a H4 visa for the child after adoption. Is there a pre approval processing that we need to follow here in USA before we go for adoption in India so the visa process later will become easy for us? Please shed from light on this topic. Thanks in advance.

    PAP,
    Rakesh B

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