Child Adoption is a gift for both homeless children as well as the people adopting them. It is the act of one who takes another’s child into his own family, treating him/her as his own, and giving him/her all rights and duties as his own.[i] There are various laws governing the Child Adoption Process in India.
Hindu Adoptions and Maintenance Act, 1956 [HAMA]
This Act is applicable to Hindus only. Hinduism has always had the concept of adoption. In ancient times, it originated so that a childless couple could adopt a son. That son would complete their funeral rites and save them from hell. Now, it is a much more organized law, valid for both male and female child.
Essentials of a valid child adoption under HAMA:[ii]
- Both the Child and the person who is adopting must be Hindus.
- Adopting parent must not be minor and should be of sound mind.
- Only the father, mother or guardian of a child may give him/her in adoption.
- The Child who is to be adopted must never have married.
- The Child must not have completed 15 years of age.
- An adopted child cannot be re-adopted.
- More than one person cannot adopt the same child.
- If a person has a son or son’s son or son’s son’s son, he cannot adopt a son.
- If a person has a daughter or son’s daughter, he cannot adopt a daughter.
- There must be an age gap of 21 years between adoptive child and parent if a male adopts a female child or a female adopts a male child.
- There must actual giving and taking the ceremony for child adoption.[iii]
Also, if a person has a living spouse at the time of the child adoption, he/she must take the spouse’s consent before adoption.[iv] Also, if a bachelor adopts a child and marries someone later, the spouse will be stepping parent of the child. And, the caste of a child belonging to higher caste doesn’t change if someone from a lower caste adopts him/her.[v] The main problem in this act is that it’s applicable to Hindus only. Other communities did not have any such codified laws for child adoption. However, some customary adoptions were prevalent.
Juvenile Justice (Care and Protection of Children) Act, 2015 [JJ Act]
There was a need for a secular law for Child Adoption. Constitution of India enshrines the need to establish a Uniform Civil Code in the country.[vi] After several failed attempts and resistance by different communities, the Center framed Child Adoption Laws within the Juvenile Justice Act, 2000. It was later amended in 2006 and then Juvenile Justice Act, 2015 replaced it.
Who may be adopted?
Under the Juvenile Justice Act, Orphan, Abandoned and Surrendered Children can be adopted. There are various provisions that need to be complied with. Also, people must follow the Central Adoption Resource Authority (CARA) rules and guidelines.[vii] The religion of the Child does not matter.
Who may adopt?
The person who is adopting a child must be physically, mentally and financially sound. A married couple can adopt a child but the consent of both partners is mandatory. Even single and divorced persons may adopt a child. However, a single male is not eligible to adopt a female child. The religion of the prospective adoptive parent does not matter.[viii]
The United Nations Convention on the Rights of the Child, 1989 recognizes Inter-Country Adoption as a valid alternative if a child is unable to find a home in his/her Country of origin.[ix] The apex court gave the concept and proper guidelines for Inter-Country Child Adoption in India in the case of Laksmi Kant Pandey v Union of India.[x] These guidelines were followed for long. Now, the Inter-Country Adoptions are also governed by the JJ Act and CARA.
Relatives of the Child, Non-resident Indians, or persons of Indian origin are given priority in inter-country adoptions. People must take a Court order and follow the CARA guidelines in case of Inter-Country Adoptions. If not, the person who gives or receives such child shall be liable for imprisonment and/or fine.[xi]
Guardians and Wards Act, 1890 [GAWA]
Communities other than Hindus could not adopt a child before the passing of JJ Act in 2000. Muslims, Parsis etc do not have adoption in personal laws. But, under GAWA they could take a child in ‘guardianship’.[xii] Under this Act, the child becomes a ward of the guardian and assumes individual identity after he/she is 21 years old. There is no concept of Natural Inheritance but the guardian could leave for their wards whatever they want through a will.
Adoption is now understood as a basic right of a homeless child. The Human rights to shelter, food, education etc can all be associated with Child Adoption. Adoption should not be based on religion or status. After JJ Act was passed in 2000 and amended in 2006, this was ensured. However, the Act needs one slight improvement. A male cannot adopt a female child under the Act. But, similar provisions are not given for women. JJ Act needs to be more gender-equal. However, this Act has led to a great positive change in society.
[i] Black’s Law Dictionary.
[ii] Hindu Adoptions and Maintenance Act 1956, s 7-11.
[iii] M Gurudas v Rasaranjan AIR 2006 SC 3275.
[iv] Brajendra Singh v State of MP (2008) 13 SCC 161; Ghisalal v Dhapubhai (2011) 2 SCC 298.
[v] Sailaja v Principal, Kurnool Medical College AIR 1986 AP 209.
[vi] Constitution of India 1950, a 44.
[vii] Juvenile Justice (Care and Protection of Children) Act 2015, s 56.
[viii] Juvenile Justice (Care and Protection of Children) Act 2015, s 57.
[ix] United Nations Convention on the Rights of the Child 1989, a 21.
[x] Laksmi Kant Pandey v Union of India AIR 1984 SC 469.
[xi] Juvenile Justice (Care and Protection of Children) Act 2015, s 80.
[xii] Debaditya Roy, ‘Adoption under Juvenile Justice Act: A Clarion call to Secularism’ (Legal Service India) < http://www.legalserviceindia.com/article/l327-Adoption-under-Juvenile-Justice-Act.html> accessed 10 December 2018.