This article is written by Sreeraj.K.V, a student of Government Law College, Ernakulam, on the legal process involved in adopting a child in India.
“Child is the father of man” (“The Rainbow”, William Wordsworth)
While introducing the topic, I think it is important to quote this famous line written by William Wordsworth in his world famous poem “The Rainbow”. For me, this line seeks to be heart touching as it inculcates many powerful definitions in just four or five words. Children are the most gifted persons in this world. Childhood is the most beautiful part played by each and every creature in this universe. I read somewhere, “Make me a child again just for tonight” . I couldn’t fully absorb what the author of the lines actually meant, but I remember those lines as if I had read it yesterday. Apologies to all readers if I made you bored by sharing my silly thoughts, but of course there are many silly things in everyone’s life which claims to be memorable years later.
Now coming to the topic of adoption and its legal proceedings in India, there are two major questions which arise in our mind regarding the term adoption. They are:
- Who is adopting?
- Who is the one adopted?
These questions can be stated as the standing pillars of all laws and legal statutes of our country. As a law student, it is my responsibility to state various laws relating to the term adoption in India. These include Hindu Adoption and Maintenance Act, 1956, Guardianship and Wards Act, 1890 and Juvenile Justice (Care and Protection) Act, 2000. All these laws provide various provisions regarding the nature and importance as well as the eligibility of various individuals for adopting a child in India. In this context, it demands utmost importance to define the term ‘child’. We all are very familiar with this word but majority of us are unaware of its actual meaning. A clear-cut definition of ‘child’ is a person who has not attained puberty or below the age of majority. Childhood plays a very major part in a person’s life as it offers many fruitful memories to the person and also helps to build up his own personality, by which other individuals make a perception about him. Even though the topic is connected to adoption, no person can reach his thoughts to this topic by skipping the word ‘child’.
ADOPTION – A LEGAL CONCEPTUALISATION
In simple terminology, the term ‘adoption’ means acceptance of a child of other parents to be the same as one’s own child or the choosing and making that to be one’s own which originally was not so. In legal terminology, adoption enables a childless person to make somebody else’s child as his own. But there has been an acute controversy among judges whether in adoption the secular motive predominates or the religious motive predominates (1).
(1). Mayne, Hindu Law and usage (11th edition) 184 – 188
In the case of Inder singh v. Kartar Singh (1), the court stated that the object of adoption is twofold:-
- To secure performance of one’s funeral rites
- To preserve the continuance of one’s lineage.
WHO IS ALLOWED TO ADOPT?
Law states that any Indian, Non-Indian or a foreigner can adopt a child. The person should be medically fit and financially able to take care of the child. The person must be at least 21 years old. This age limit is different depending upon the age of child who is being adopted. But the generally accepted rule is that both the adopter as well as the adoptee must have an age difference of 16 years. However in all cases, the age of the person who is adopting must not exceed 55 years.
WHO IS TO BE ADOPTED?
Law clearly states that adoption of a child takes place only when there is an age difference of 16 years between the adopter and the adoptee. But in special circumstances, adoption can be enforced between the two parties who do not satisfy the rules regarding this age difference when any customs or practices are prevailing in the communities under which the adoption is a part. Generally there is no certain rules regarding the age of the child but the upper age limit of an adoptive child is 12 years while for an adoptive parent it is 55 years.
(1). Inder singh v. Kartar singh, AIR 1966 Punj 258
LAWS GOVERNING ADOPTION
In India, Hindus, Jains, Sikhs or Buddhist are allowed to formally adopt a child. This adoption comes under Hindu Adoption and Maintenance Act, 1956. There are other laws such as Guardianship and Wards Act, 1890, Juvenile Justice Act, 2000 etc. to provide the provisions of adoption not only for Hindus but also for all non – Hindus such as Christians, Muslim, Parsis and Jews. Under the Guardianship and Wards Act, while the adoptive parents are conferred guardianship status, the adopted child does not automatically get inheritance right. The guardians need to submit an investment plan and also a certain amount of money in the name of the child for his/her future. According to the Juvenile Justice Act, the Act is applicable only to children who have been abandoned or abused and not to those children who have been voluntarily put for adoption.
Here are some facts about domestic adoption procedure in India:
- Prospective parents must register at a licensed adoption placement agency with the entire required document.
- Then the worker from the agency will approach the parents for a home study.
- After finding out a suitable child, the agency will call the prospective parents to meet the child.
- If the parents approve, the agency may hand over the child once a foster care agreement is signed.
- Meanwhile, the agency’s lawyer files a petition for adoption on behalf of the couple, either before the court or Juvenile Justice Board, depending on the law under which the adoption will take place.
- The agency representative and the parents register the adoption deed as a proof of completion of adoption.
Section 11(vi) of the Hindu Adoption and Maintenance Act lays down, “The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intend to transfer the child from the family of its birth or, in the case of an abandoned child or child whose parentage is not known, from the place of family where it has been brought up to the family for its adoption”
ADOPTION FOR THOSE WHO ALREADY HAVE A CHILD
The provisions of our legal statutes portrays that a person can adopt a child even if he/she has a child already, upon one condition that the child adopted must be of the opposite gender to the one already they have (Hindu Adoption and Maintenance Act). But in other two adoption laws, there are no such conditions that a person must satisfy while adopting. But these laws also state that the original child of the person, who is adopting, if old enough, must express his/her views regarding the adoption, in writing.
RIGHTS OF THE ADOPTED CHILD
Section 12 of the Hindu Adoption and Maintenance Act states that “an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption and from such date all the ties of the child in the family by his or her birth shall be deemed to be saved and replaced by those created by the adoption in the adoptive family” (1).
(1). Section 12, Hindu Adoption and Maintenance Act, 1956.
This provision of the Act clearly lays down the condition that a child adopted by a couple has the same right as that of a child born to those parents. Neither the adoptive parents nor the child can overturn a valid adoption (1). Under the Guardianship and Wards Act, the parents have the right only of guardianship rather than the right of parentage. This necessitates extra precautions to protect the child’s right.
There are many landmark cases regarding adoption and it is changing with the need of the society. One of the most important cases are Sawan Ram and Ors v. Kalawanti and Ors (2) where the Hon’ble Supreme Court made a very important judgment that “If a bachelor adopts, the child will have a father and will have no mother”. The same should apply when a widow or widower adopts a child. When a divorced women, a widower or divorced man adopts a child, there is no relationship whatever, with the ex-spouse or deceased spouse of the adopter”. This part of the judgment clearly specifies who all can adopt a child other than the persons in the normal case. The judgment makes it clear that anybody who is willing to adopt a child can act accordingly and there will be no legal barriers for the person during his course of action. This was formulated in order to make the process of adoption much easier than it was in the past. Even though the judgment in this case was made years ago, the contents are in such a way that it gets flexible each and every time,a reference is made to it in favor of adoption.
Majority of us are well aware of the after course of adoption. But many of us are still not aware of what all has to be done before adopting a child or what are the measures to be taken by the prospective parents before they undergo the process of adoption.
- The first and foremost thing to do is to get registered for adoption with an Adoption Coordinating Agency (ACA) situated at the capital city of every state or approach an agency certified by Central Adoption Resource Authority (CARA) in New Delhi for registration.
- Be aware of the fact that there are many unauthorized and unlicensed orphanages and institutions all over the country run by private individuals, hospitals, doctors etc. They may agree with the request for adoption without much documentation proceedings or legal formalities, but the real fact is that such adoptions will be held illegal by the government and the parents may get into trouble with law and it may also lead to various issues such as exploitation by fraudsters and middlemen.
- Children who are adopted through such illegal grounds will be denied of their rightful inheritance and benefits once their adoptive parents have passed away or divorced.
Apart from the above stated aspects, the parents must also ensure the credibility of the institution through which adoption is being carried out. As stated earlier there are many fraudulent and unauthorized agencies mainly in urban areas that collect small children in the way of kidnapping or other such illegal methods. It is advisable to consult with a law enforcing agency (POLICE) or any other competent authority regarding the authenticity and credibility of the institution as the process of adoption has to be considered a turning point in the lives of both adopter as well as adoptee.
Another important aspect for consideration is the physical as well as mental condition of the child who is to be adopted. Some children may be physically fit but mentally unfit and vice versa. In such situation it is advisable to the institution as well as the adopter to enforce a written agreement regarding the transfer of the child upon some special conditions such as this child will be looked after the prospective parents either he/she attains the competent level in soundness of mind or till the death of the prospective parents. The institution along with any other competent authority may also conduct inspections on periodical basis so it will be made clear that the child is being treated properly and no kind of abuses are taking/taken place against them.
It is my pleasure to introduce this topic on 69th anniversary of our Independence, as the act of adoption has to be considered as a sacred movement of enabling a good standard of living, education, wealth and culture to the small budding talents of our country who had lost their hope, wishes and happiness along with their parents. It also teaches us the act of unity among our fellow beings as the one who is adopting and the one who is adopted are entering into a sacred relationship which is as beautiful as blood relation or religious unity. It also makes a feeling in our mind that love is something which must be spread all over the world without looking into the color of the skin or physical traits and it also makes a feeling that the color of blood in our body is always the same and let this color be the color of unity.
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