This article is written by Gitika Jain pursuing BBA.LLB(Hons) from Amity University, Kolkata. This is an exhaustive article which deals with the process of adoption in India.
Table of Contents
Introduction
Being diverse in terms of religion, India has its own set of practices which it follows. Indian legal system comprises various customs along with legislation. Children are often considered to be the future of the country and They have the right to be taken care of or being pampered but on the other hand, there are so many children being abandoned per year in India. Often those children are a victim of human trafficking and sexual assaults. Some of them are taken to adoption agencies where they are given a second chance to live. The concept of adoption can be traced back to the early 17th century.
What is adoption?
Adoption, therefore, is a legal process through which a married couple or a single female or male who agrees to raise the child as their own and undertakes all the responsibility attached to that child, is provided with a child. Adoption can also be termed as a permanent legal way of transfer of a child from the biological parent to another parent who is ready to accept all the responsibilities of the child. It can be said that through the process of adoption one can provide a child to childless and home to homeless.
Objectives of adoption
- To secure the family property.
- To grow family name and fame.
- To provide a home to the homeless child.
- To provide a child to the childless
- To protect the old age of the parent by the adopted child.
- To help in the last rites and rituals of parents
Legislation for adoption
Concept of adoption in India
Adoption in India has to go through a legal process which will provide the legal rights to both the child and the parents. The aim of providing the legal system behind adoption is to protect the right of both the parties and to allow smooth transfer of all the legal obligations and rights from the biological parents to the adoptive parents. There are basically three major legislations that are set through which Indian citizens can adopt:
- Hindu Adoption and Maintenance Act 1956 (Hindus, Jain, Sikhs or Buddhists)
- Guardian and Wards Act 1890 (foreign citizens, Muslims, Christians, Jews)
- Juvenile Justice(Care and Protection of Children) Act 2000.
Hindu Adoption And Maintenance Act 1956 (HAMA)
The Act includes Hindus, Buddhist, Jains or Sikhs. (Section 2)
Who can adopt under this Act
- All the married couples or single adults can adopt.
- Legally speaking of which the man adopts with the consent of his wife. (M Vanaja v. M Sarla Devi)
- Single females can also adopt whether she is unmarried, divorced, or widow. (Section 8(c)) (Sawan Ram V. Kalawanti AIR 1967)
- If a married male is adopting a girl child the age difference between the father and the adoptive girl child should be at least 21 years. (Section 11(iii))
- Girl child cannot be adopted in a case where the person is already having a girl child similarly male child can also not be adopted in case the person is already having a male child.
Eligibility for the child to be adopted
- The child is a Hindu.
- Prior adoption has not been not done.
- He or she has not been married.
- He or she must have completed 15 years of age.
The Guardians And Wards Act 1890
The Guardians and Wards Act 1890 is not for adoption as it does not establish any relationship of a parent and child. This Act only establishes a guardian and ward relationship that too only until the child has attained 18 years of age. This Act was the only legislation before the Juvenile Justice Act that allowed non-Hindus to adopt. Few points need to be taken care of under this act:
- Single parents cannot adopt without the restriction of age difference.
- Both spouses adopting a child can easily be guardian.
- Under this act, a will is required if any property is to be transferred to the name of a child.
- The will can be legally contested by blood relatives
- Guardianship under the Act can be revoked by the court or the guardian.
Juvenile Justice (Care And Protection) Act 2000
The main aim of this Act was to take care of the children and rehabilitate them. When there was a need to allow children the rights to be adopted, this Act came into place. There were also amendments in this Act in the year 2006:
- A child who is legally free for adoption can be adopted by any Indian citizen.
- The adopted child gets the same right that the biological child gets.
- There shall be no discrimination on the basis of the religion of the adoptive parents.
- Single people can adopt a child.
- The adoption is irrevocable.
This act covers the areas where the Juvenile justice board have been constituted although it covers almost all of India.
Adoption Regulations, 2017
Principles governing adoption under these regulations are:
- According to Regulation 3(a) of Adoption Regulation 2017 whatever is the best interest in favour of the child shall be of paramount importance.
- Regulation 3(b) of AR 2017- The basic principle of placement of the child is in his own social cultural environment
- Regulation 3(c) of AR 2017- All the adoptions of the child has to be registered on carings.
- Section 74 of JJ Act and regulation 3(c) of AR 2017- Maintenance of confidentiality is a must.
Model JJ Rules, 2016
This came into force on 15th January 2016, it converts almost all the offences that are being practised against children and that are not in the purview of Juvenile Justice Act 2000. The Juvenile Justice Act 2001 included limited offence against children such as employment for begging, giving intoxicating drugs, children cruelty, etc. But this act covers offences like sale of children for any illegal purpose, offences against disabled children, etc.
Court Procedure for Adoption
Court procedure in adoption under HAMA:
There is a registered adoption deed which is subject to compliances with provisions of Section 17 of HAMA through which adoption can be concluded.
Permission of the court to adopt under this Act is required when: (Section 9(4))
- Both the father and mother have died.
- Both the father and mother have renounced the world.
- Both father and mother have abandoned the child.
- The parentage of the child is unknown.
- Where both the father and mother are of unsound mind.
Section 15 of HAMA lays down that valid adoption cannot be cancelled.
General Court Procedure for Adoption
- Adoption can only be completed when an adoption order from the court has been obtained
- The court here refers to the Civil Court which has jurisdiction to hear from the matters of adoption and guardianship and also include district court, family court or city civil court.
- Procedure laid down in CPC is not binding on the court.
- There are different types of adoptions and different application forms are to be presented for the same.
- The court before issuing any order must satisfy itself with the provisions under 61 (1) of JJ Act which specifies the welfare of the child and wish of the child keeping in mind the age and understanding of him or her.
- The proceedings for adoption must be recorded in camera and the within two months from the date of filing of an application for adoption the court shall pass an order.
- Meeting of eligibility criteria is a must
- One can visit any voluntary coordinating institution for any child welfare agency in the nearby region.
- One must understand all the rules related to adoption and the need of every institution that has been set up for the process.
- The agency should conduct an interview to find out whether the person asking for adoption has a good family background and is able to emotionally and financially support the adoptive child.
- The agency also will verify the documents that were submitted with the application form of adoption.
- A meeting is to be arranged between the child and the adopting parent to find the willingness of both the parties.
- Once the parents have agreed to adopt the child they should apply to the court for the same.
- After the court has approved of the same the adoption will be final and binding on the parent.
- However, the institution’s job is not yet over; they must do follow-ups.
- In case of any fraud, only the court has the power to cancel the adoption decree.
Adoption under different laws
Hindu Law
Only in Hindu law there used to be a belief and custom that only male children were to be adopted and female children could not be adopted. Restrictions were imposed based on caste and gotra. Hindu law is also the only law that treats the adopted child just the same way a natural-born child is treated.
Under the old Hindu law, only the male has the right to adopt without the consent from his wife. As time moved forward these restrictions changed and the gender discrimination in the society is decreasing day by day. According to modern Hindu law, the right to adopt the child is being exercised by both male and female provided the person has attained the age of majority and is of sound mind. Such amendments, rules, regulations have been enumerated in Hindu Adoption and Maintenance Act 1956.
Muslim Law
As it has been observed that under Muslim law a father always enjoys a dominant position. Both two schools of Muslim law that is Shia and Sunni have agreed that the father is the sole guardian and mother is not recognised as a natural guardian even after the death of the father. Muslim law since it differs from Hindu law, adoption practice hereunder are different. Islamic term for adoption is kafala. The strict rules are set under the Muslim law to preserve the integrity of the family. Though adoption is not prohibited but what is unlawful is to attribute one’s adopted child to oneself as if there is a biological relationship. The rules under Muslim law are:-
- The adopted child keeps the surname of his or her biological family.
- The inheritance of an adopted child is from his or her biological parents and not adoptive parents.
- If the biological parents of a child have given some property to him or her, adoptive parents are to take care and not interfere in that property.
It is impossible for a child to be feeling orphaned even after being an adopted in the Islam family because is from the family network is vast and very strong and there are enough number of family members to take care of him or her. (Yaqoob Laway v. Gulla 2005).
Christian and Parsi Law
The community of Christian and Parsi law do not recognise adoption and adoption can take place from an orphanage only after permission has been obtained from the court under the guardian and wards act. There is no law related to adoption in Christians and they have to approach the court under Guardian and Wards Act 1890 which lays down that the right of the father on the child is primary until the father is unfit to take care of the child.
No other person can be appointed for that purpose. The welfare of the child is almost while appointing a guardian for the same. In Christians, foster children are not treated as children according to law and on the death of the foster parents the estate is distributed among the legal heir. Section 41 of the Juvenile Justice Act 2006 along with the guidelines of state governments can permit the adoption of children by Christians. (Shabnam Hashmi vs Union of India AIR 2014) this case enabled non-Hindus to adopt a child. (Philips Alfred Marvin v. VJ Gonsalves AIR 1999)– allowed adoption in Christians.
Role of judiciary in adoption
Adoption of any child is a sensitive matter in the eyes of the Government of India and they are fully committed to the rights and welfare of children. Even the constitution of India provides fundamental rights under Chapter III Article 21, the main object of which is that before deprivation of any person’s life or liberty by the State a strict procedure must be followed. Since the right to life also includes the right to lead a meaningful life, Article 21 gives every child the right to live a meaningful life and protects the right against exploitation of children below 14 years of age. Therefore any biasness or discrimination with regards to adoption need to be scraped off and a complete civil code should take place instead. Directive Principles of State Policy- Article 45 also provides free and compulsory education for children.
Case laws
- Pkh vs Central Adoption – The present case is of the practitioner and her husband. They both reside in Canada for the last 20 years. The petitioner wanted to adopt a girl child in regard to which the relatives of the petitioner got in touch with family relatives PK. The child was adopted from PK. The question with the case was that the child adopted was in conflict with law. It was therefore held in the case that the respondent of the case was to grant a NOC to the petitioner to take the adopted child to Canada within a period of two weeks.
- Balu Sakharam Pawar vs Lahoo Sambhaji Tetgure– It was held in this case that while dealing with the law of adoption two things are most important to be taken care of, the first is that the right to adopt and the second is the effect of valid adoption on the property.
- Lakshmi Kant Pandey vs UOI – In this case, the court observed that in the absence of legal regulation of intercountry adoption in India major harms to the Indian children can occur for example abuse of profiteering for human trafficking.
- Bhagwan Singh and Ors vs Bhagwan Singh – In this case, the court observed that the question whether a widow can adopt a son to her husband without the expressed authority of him needs proper attention from the legal authorities in different parts of India.
Conclusion
Right to adoption though not a fundamental right in India, still there is a serious need to make one since it would provide a child to the childless and home to the homeless. Home for children will help the child grow into a healthy human being mentally, physically and psychologically. However, the court must do good for the children and the parents by laying down strict guidelines, rules and regulations in order to ensure there is no misuse of such rights.
References
- Role of Judiciary.pdf – CARA
- Bench book for Adoption – CARA
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