Adoption Laws In India-An Overview

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The term adoption has been defined in the Juvenile Justice(Care and Protection of Children) Act, 2015. It defines “adoption” as the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.

In India, till recently adoption as a legal concept was available only among the members of the Hindu community. A major chunk of the population except Hindus could only act as legal guardians of the children. There have been numerous progressive changes brought about by the new concept under the Juvenile Justice (Care & Protection of Children) Act, 2015 that have been adopted, such as adoption by single parent,adoption by step-parent adoption by relatives etc.

Adoption Laws In India:

1. The Hindu Adoptions & Maintenance Act, 1956

It is an Act to amend and codify the law relating to adoptions and maintenance among Hindus and applies to any person who is Hindu by religion. This law also applies to any person who is a Buddhist, Jaina or Sikh by religion but does not apply to any person who is a Muslim, Christian, Parsi or Jew by religion.

As per the provisions of this Act, all adoptions by or to a Hindu shall be made in accordance with the provisions contained in this Act.

Requisites of a valid adoption under The Hindu Adoptions & Maintenance Act, 1956:

No adoption shall be valid unless-

  1. the person adopting has the capacity, and also the right, to take in adoption;
  2. the person giving in adoption has the capacity to do so;
  3. the person adopted is capable of being taken in adoption; and
  4. the adoption is made in compliance with the other conditions mentioned in this Act.

Capacity of a male Hindu to take in adoption:

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. However, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

Capacity of a female Hindu to take in adoption:

Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. However, if she has a husband living, she shall not adopt except with the consent of her husband unless the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

Who are the persons capable of giving a child in adoption?

As per this Act only the father or mother or the guardian of a child shall have the right to give the child in adoption and father or the mother, if alive, shall have equal right to give a son or daughter in adoption. However this right cannot not be exercised by either of them without the consent of the other.Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian
himself.

Who can be adopted?

Person who can be adopted must fulfill the following requirements:

  1. he or she is Hindu;
  2. he or she has not already been adopted;
  3. he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
  4. he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

Further in every adoption, the following conditions must be complied with:-

  1. if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
  2. if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
  3. if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;
  4. if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;
  5. the same child may not be adopted simultaneously by two or more persons;
  6. the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent 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 or family where it has been brought up to the family of its adoption.

Also Read: Single-Parent Adoption in India

Effects of adoption under the Hindu Adoptions & Maintenance Act, 1956:

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 the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.This Act provides for establishment of Central Adoption Resource Authority (CARA) which regulates the entire process of adoption in India under this Act.

2. The Juvenile Justice (Care & Protection of Children) Act, 2015:

The provisions of this Act shall apply to all matters concerning children including adoption. This is a secular Act and it lays down the Guidelines Governing Adoption of Children.

Fundamental principles governing adoption under the Act:

The following fundamental principles shall govern adoptions of children from India, namely:-

(a) the child’s best interests shall be of paramount consideration, while processing any adoption placement;

(b) preference shall be given to place the child in adoption with Indian citizens and with due regard to the principle of placement of the child in his own socio-cultural environment, as far as possible;

(c) all adoptions shall be registered on Child Adoption Resource Information and Guidance System and the confidentiality of the same shall be maintained by the Authority.

Child eligible for adoption.- The following shall be eligible for adoption, namely:-

  • any orphan or abandoned or surrendered child, declared legally free for adoption by the Child Welfare Committee;
  • a child of a relative defined under the Act;
  • child or children of spouse from earlier marriage, surrendered by the biological parent(s) for adoption by the step-parent.

Eligibility criteria for prospective adoptive parents.-

  1. The prospective adoptive parents shall be physically, mentally and emotionally stable, financially capable and shall not have any life-threatening medical condition.
  2. Any prospective adoptive parents, irrespective of his marital status and whether or not he has a biological son or daughter, can adopt a child subject to following, namely:-
  • the consent of both the spouses for the adoption shall be required, in case of a married couple;
  • a single female can adopt a child of any gender;
  • a single male shall not be eligible to adopt a girl child;

3. No child shall be given in adoption to a couple unless they have at least two years of the stable marital relationship.

4. The age of prospective adoptive parents, as on the date of registration, shall be counted for deciding the eligibility and the eligibility of prospective adoptive parents to apply for children of different age groups shall be as under:-

 

Age of the Child Maximum Composite Age of prospective adoptive parents (Couple) Maximum age of single prospective adoptive parent 
Up to 4 years 90 years 45 years
Above 4 years and up to 8 years 100 years 50 years
Above 8 years and up to 18 years 110 years 55 years

 

5. In case of couple, the composite age of the prospective adoptive parents shall be counted.

6. The minimum age difference between the child and either of the prospective adoptive parents shall not be less than twenty-five years.

7. The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by step-parent.

8. Couples with three or more children shall not be considered for adoption except in case of special need children as defined in this Act, hard to place children as mentioned in regulation 50 and in case of relative adoption and adoption by step-parent.

Adoption Procedure under the Juvenile Justice (Care & Protection of Children) Act, 2015:

The Act also prescribes the procedure for adoption in case of:

  1. Adoption by resident Indians.
  2. Adoption by Non-Resident Indians, Overseas Citizen of India & Foreign Prospective Adoptive Parents.
  3. Adoption by Step Parent
  4. Adoption by Relative

Issuance of Birth Certificate:

Upon completion of the adoption formalities a birth certificate in favour of an adopted child, incorporating the names of the adoptive parents as parents and the date of birth of the child as mentioned in the adoption order of the court shall be issued.

Effect of Adoption under the Act:

A child in respect of whom an adoption order is issued by the court, shall become the child of the adoptive parents, and the adoptive parents shall become the parents of the child as if the child had been born to the adoptive parents, for all purposes, including intestacy, with effect from the date on which the adoption order takes effect, and on and from such date all the ties of the child in the family of his or her birth shall stand severed and replaced by those created by the adoption order in the adoptive family.

3. The Guardians and Wards Act, 1890:

Though not a law of adoption but it would be pertinent to succinctly consider the Guardians and Wards Act, 1890. The Act, which applies to Christians in India, lays down the procedure by which guardians are to be appointed by the Jurisdictional Court.

This however does not provide to the child the same status as a child born biologically to the family. Unlike a child adopted under the Hindu Adoption and Maintenance Act, 1956 or the Juvenile Justice (Care & Protection of Children) Act, 2015, the child cannot become their own, take their name or inherit their property by right. This Act confers only a guardian-ward relationship. This legal guardian-ward relationship exists until the child completes 21 years of age.

Conclusion:

Laws for adoption of a child in India have undergone a remarkable transformation in past few years making it easier for prospective parents to adopt a child and at the same time these laws have adequate safeguards in place to ensure the welfare of the child.

To know more about laws and procedure for adoption in India, write to us at
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. 

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