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This article is written by Dipendra Singh Tomar pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

Introduction

India faces a high population issue. Every day numbers of children are pushed into orphanage’s, NGOs, etc, but there is hope. Every second family of the new generation wants to go for adoption. Even governments of some countries and even the Indian government also encourage adoption, mainly because of two reasons, Firstly, somewhere it helps control the population growth. Secondly, the adopted child can get a bright future and happy life, this article mainly focuses on India.

This article in detail deals with including but not limited to, what is adoption, how the Adoption process is done, what are post-adoption agreements, how this agreement is created. Every country has a different process for adoption and post-adoption.  This article also includes relevant case laws and statutes.

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In simple terms, adoption is a legal transfer, when a couple does not want to give birth to a new baby instead, they prefer to legally adopt a child called adoption.

When an agreement is done between the child’s adopted family and the child’s birth family after the adoption is finalized, this agreement is called post adoption agreement or cooperative adoption or open adoption agreements. 

Understanding the term adoption

According to Section 4(i)(aa) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, adoption can be defined as “adoption means the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship”.

In simple terms, adoption means, when a child is legally separated from his biological or blood-related parents and adopted by another family legally, this process is called Adoption.

  • Hindu community

In India, adoptions are generally governed under the Hindu Adoption and Maintenance Act, 1956, but as this law includes the term Hindu so, another religion is out of the scope of this act. 

Adoption for any or every Hindu family is strictly governed as per this act only.

  1. In Bal Gangadhar Tilak vs Shrinivas Tilak, Privy Council declared that adoption in Hindu is not the only process of legalizing the child or giving rights. For Hindu, it means to make obligations and sacrifices which would permit the soul of the deceased father to pass from Hades to paradise.

  • Muslim community

For Muslim community adoption can we government as per judgement given by Supreme Court of India in case of M/S Shabnam Hashmi vs Union Of India & Ors declared that the right to adopt a child is not related to a specific religion and held that provision of Juvenile Justice (Care and Protection of Children) Act, 2015 would prevail over all other religion or personal laws. 

  1. Section 8 of the Guardian and Wards Act, 1890, Under this any person of any religion also can adopt the child under this Act. As they don’t have any personal law for adoption, but they desire to adopt.  

  • Christians community

The Christian community does not have any specific personal law to govern the adoption, as the personal law of this community does not recognise adoption. In India adoption for the Christian community is governed under the Guardians and Wards Act, 1890.

  1. Philips Alfred Malvin vs V.J. Gonsalve: Supreme Court, in this case, gave judgement that, even in absence of any law or custom for validating Christian adoption in their law, the court will legally recognise the validity of adoption by the Christian community.

Who can adopt? 

Some conditions need to be fulfilled by the parents to adopt a child:

  1. Parents are economically, physically, financially fit to adopt or capable to fulfil the needs of the child.
  2. Parents must be mentally well or capable to look after the child. 
  3. Married parents must live or stay together and they share a good bond of relationship.
  4. A couple must have a proper or stable residence to live in.
  5. A single male parent is not allowed to adopt a girl child.
  6. If any couple has 3 or more than three children, they are not allowed to adopt a child. 
  7. Composite age will be counted for adoption.
  8. When a couple adopts the child, consent of both, (Mother and Father) is equally and necessarily important.

Age perspective for adoption

Age of Child Maximum Composite Age of Couple Parents Maximum Age of Single Parent 
1-4 Year 90 Year  45 Year 
4-8 Year  100 Year  50 Year 
8-18 Year  110 Year  55 Year 

Procedure for adoption 

If a couple fit the above-mentioned criteria, the couple can apply for an adoption procedure. After complying with the procedure for adoption, adoption considers a legally valid adoption.

1. Child registration

  1. Parents have registered themselves in a particular organization, NGO, from where they wish to adopt a child. 
  2. Parents have to submit the required documentation before the competent authority for the adoption process.
  3. Common or Necessary documents like Current photographs of family, Proof of identity, proof of residency, medical report of parents, income certificate etc.

2. Inquiry and counselling

Once the process of registration is done, the members of the organisation visit the parents’ house for verification of documents and counselling of parents. Members of the organization took a separate session of counselling for both (mother and father). In a counselling session, they also look at whether parents are ready for adoption or not.

3. Meeting with the child 

Once the above mentioned process is done and the organization is satisfied, the organization shares reports of different children and allows and asks them to meet with the child. This process is done for the satisfaction of parents. Through this process, the child meets with parents, so parents also get time to know each other. 

4. Acceptance

Once the selection of a child is done in the above process, parents are allowed to choose any child and then parents, while signing the petition in court and signing a paper in the organization, are allowed to take the child home with themselves.

5. Petition filed

Once the petition is filed, a lawyer is asked to present the documents before the court. The court, after verifying the document, asks the parents to sign the petition for completion of the adoption process. 

6. Court hearing

Once, parents take the child home, they ask to come back with the child for a hearing, in which the judges ask some questions to parents. This meeting is done behind closed doors. 

7. Final procedures

After all the process is done, the organization has to submit the report of child well-being in 1-2 years. 

Rights of the adopted child

The adopted child holds the position of a legitimate child after the adoption. All the rights that a blood-related child have, equally all the rights are given to the adopted child. 

The Hindu Succession Act, 1956, says adopted children become legal as normal child. The act also says, If in any circumstance, the parents die without his/her will, the adopted child holds equal right as a blood child in the property.

 

Post adoption agreements

A post-adoption agreement is an agreement between the child’s birth family and the child’s adoptive family. These agreements are normally based on mutual understanding of family. 

Post-adoption agreement cases occur when the child is not adopted from any orphanage or NGOs when a family gives their child for adoption to another family. 

The post adoption agreement is for the right of the child’s birth family to look after the child after adoption also. This agreement outlines the right of the child’s birth family that they have over the child, after adoption. 

Important clause to be included in post adoption agreements

  • Negotiation 

The clause of negation in case of any dispute that arises between the parties must be included in the post-adoption agreement. This clause usually states that parties first go for the Alternative Dispute Resolution (ADR) method before going to court. 

  • Dispute Resolution Place

In case any dispute arises in future, the place where the parties can seek legal remedies must be mentioned or the place where the ADR process takes place to resolve the dispute between the parties. 

  • Meeting

The clause related to the meeting of a child with his/her birth family. The clause also clarifies that in a year or months what number of times the childbirth family is allowed to meet with the child.

  • Rights of child birth family 

The clause relating to the right of birth family, the clause will include all the right of the birth family specifically like, does birth family allowed to interfere in the future decision of child, decision relating to child education etc., 

  • Other clause relating to future 

Like child marriage clause, what kind of luxury life child will spend, what share of property child will get, etc., all the relating to the matter of the agreement for the good of the child.  

The legality of post adoption agreements

In India there is no law or act for post adoption agreements, in the US some states legalize the post adoption agreement. 

In India, post adoption agreements are enforceable only for children above the age of two. 

There is no format for post adoption agreements, it can just simply enter by parties but, the agreement must be legalized by the court. Once the court gives assent to agreements then only it will be considered valid. 

If a post adoption agreement is not valid in a particular country, even then families can enter in “good faith agreements”. Good faith agreements provide an opportunity for both families to meet and discuss the child’s future or any important thing that needs to be discussed even after adoption. Good faith agreement is similar to post-adoption agreements.

The non-compliance with post adoption agreement, will not affect the validity of the adoption agreement, but the court asks the adoptive family to comply with the agreement. 

Recommendations

  1. As in this article we have seen there are different laws for different religions for the adoption of a child, India needs a single umbrella law for the adoption process of all the religions. The National Commission on Women also stressed the need for a uniform law for the adoption process in India. but, to the present date, India does not have any uniform or umbrella law for the adoption of all religious communities. 
  2. India needs a proper dafter law or guidelines for post adoption agreement. Adoption from a family is different from adoption from an orphanage or NGO because a child’s parents know where their child is going and the child is also aware of their parents, so for those parents, we need a codified, drafted law to govern post-adoption agreements. 

In the United State of America, 22 states have enforceable law for post-adoption agreements like Arizona, California, Connecticut, Florida, Louisiana, Maryland, Massachusetts, Minnesota, Montana, New Hampshire, New Mexico, New York etc.

Conclusion

We have discussed the adoption and how the process of adoption takes place, we have seen that in India there are different acts and case laws for the governance of adoption. The article also discussed the rights of an adopted child, as we have seen that adopted children have equal rights as a shared blood relation child have. The article explained the eligibility for parents to adopt the child. We have seen that before the adoption of a child, parents have to go through a legal and strictly valid process. And even after adoption, agencies of adoption take a look at the adoptive family for the well-being of the child. 

We have also discussed the post adoption agreement, and have seen that there is no hard and fast rule to govern the post-adoption agreement in India. We also talk about the legality of this agreement. So, in this article in detail we have discussed the process of adoption, eligibility of parents for adoption, legality under different religious personal laws and all other essentials for the adoption of a child. 

Reference

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