Dilpreet
Child Adoption Laws in India
Dilpreet Singh 20 Feb 2020

Child Adoption Laws in India

Introduction

Adoption has always been considered as a sacred act. As per Merriam-Webster, legal adoption means “to take voluntarily (a child of other parents) as one’s own child especially in compliance with formal legal procedures”.

Adoption can be both legal or illegal. According to Indian law, adoption is a legal partnership between the party willing to adopt and the child who is to be adopted. It is the subject of 'personal law' where Hindu, Buddhist, Jain or Sikhs may make a legal adoption by religious faith. In India, Hindus, Christians and Parsis do not have separate adoption laws, so they are required to file a petition in court for legal adoption under the Guardians and Wards Act, 1890 (hereinafter referred to as “the Act”).

According to Section 2(aa) of the Juvenile Justice (Care and Child Protection of Children) Amendment Act, 2006, "adoption means the process by which the adopted child is permanently separated from its biological parent and becomes the legitimate child of its adoptive parents with all the rights, privileges and responsibilities attached to the relationship".

Who can adopt?

In India, an Indian who is married or is single, a non-resident Indian (NRI), or a person of any kind of nationality (foreigner) may adopt the child. For each group of adoptive parents, guidelines and documentation process can differ.

ELIGIBILITY TO ADOPT A CHILD IN INDIA

According to The Hindu Adoptions and Maintenance Act, 1956 following category of people can make adoptions:

  • Any male Hindu (including Buddhist, Jain or Sikh by religion) who is of sound mind, not a minor and is eligible to adopt a son or a daughter”. But if such male has living spouse at a time of adoption then he can adopt a child only with a consent of his wife (unless she has been declared incompetent to give her consent by the court).
  • Any female Hindu (including Buddhist, Jain or Sikh by religion) who is not married, or if married, whose husband is not alive or her marriage has been dissolved or her husband has been declared incompetent by the court has the capacity to take a son or daughter in adoption”.

Adoption criterias:

       i.           When a Hindu man or woman adopts a son, no living son (whether by legitimate blood relationship or adoption) shall be in the following three generations at the time of its adoption. There must be no living son.

     ii.           When any Hindu male or female adopts a daughter, they should not have a daughter of any child at the time of adoption.

   iii.           Where a male adopts a daughter then the adoptive father should be at least 21 years older than the child.

    iv.           Where a female adopts a son than the adoptive mother should be at least 21 years older than the child.

      v.           Muslim, Christian, Parsis and Jewish personal laws do not accept complete adoption, so if a person belonging to such a religion and wishes to adopt a child, he or she may take adoption in accordance with Section 8 of Act,.

    vi.           This statute only makes a child a ward but not an adopted child. The movement child turns to the age of 21 according to this law, he is no longer considered as a ward and regarded as an individual identity.

  vii.           It was held in "Muhammad Allahdad Khan and Anr. vs Muhammad Ismail Khan And Ors"(1886) ILR 8 All 234 that there is nothing comparable to adoption in the Muslim Law as known in the Hindu tradition. Under Muslim law recognition of paternity is the nearest approach to adoption.

viii.           An adoption can take place from an orphanage, however, by obtaining court approval under the Guardians and Wards Act. Under the Act, Christians can take a child for adoption only under foster care. Once a child is major in foster care, he is free to break all of his links from his adoptive parents.

Inter-country Adoption

In India there is no separate act governing adoption by foreign citizens or NRIs but it is covered by Children's Adoption Guidelines, 2015. Under these guidelines, children are prevented from being abused or illegally used through adoption. According to the Intercountry Adoption Guidelines of the Supreme Court a foreign parent may adopt an Indian child before he/she is 3 years old. The laws of Guardians and Wards Act, 1890 will be observed for adoption in the absence of any substantive act on intercountry adoption.

In the case of the adoption of abandoned, abused and surrendered children, all intercountry adoptions shall be made only in accordance with the provisions of The Juvenile Justice (Care and Protection of Children) Act, 2015 and the adoption regulations framed by the Authority.

The Guardians and Wards Act, 1890, remains silent about orphans being adopted, lost, and surrendered. Chapter VIII of The Juvenile Justice Act (Care and Child Protection) Act, 2015 deals with the adoption of children in such a group. Section 58 of this Act provides that, irrespective of their religion, any Indian citizen if interested in adopting an orphan or abandoned or surrendered child, may apply to a Specialized Adoption Agency in the same manner as provided for in the Authority's adoption regulations.

Section 57 of The Juvenile Justice Act (Care and Child Protection) Act, 2015 deals with Prospective Adoptive Parent Eligibility. According to this clause, the adoptive parents should be physically fit, financially sound, psychologically aware and highly motivated to adopt a child in order to provide him with a good education, and both partners must agree to the adoption. In accordance with the provisions of the adoption regulations established by the Authority, a single or divorced person may also adopt but a single male is not allowed to adopt a girl child.

WHO CAN BE ADOPTED?

As per the Hindu law following child may be adopted namely-

  • The child can either be a girl or a boy if he/she is a Hindu.
  • He/ She has not been adopted before.
  • The age of the child is below 15 years.
  • The child should not be married.

As per the Guardianship law and The Juvenile Justice (Care and protection of children) ACT, 2015 following child may be adopted namely-

  • Who is not a Hindu?
  • Who is minor (not completed the age of 18 years).
  • An orphan or abandoned or surrendered child.

PROCEDURE FOR A VALID ADOPTION

Under the Hindu Adoption and Maintenance Act, the party that is willing to adopt will apply to the Child Welfare Agency in 1956. Registration can be done either by an Adoption Coordinating Agency (ACA) located in the capital city of each state, or by a Central Adoption Resource Authority (CARA) accredited agency in New Delhi.

After that, the agency performs a preliminary interview with the adopting couple to understand their purpose behind adoption and motivation.

Once the party decides the child they are going to adopt, they send the petition to the court of appropriate jurisdiction, where there is a court hearing on adoption (the court is required to hand down the adoption case within 2 months).

Once the decision is issued by the Court, approval is finalized.

CONCLUSION

An adoption is a noble act so it should be carried out on a large scale by the people because India is a country where there is too much population and there are a huge number of unwanted children.

Over the past few years, agencies and adoptive parents in India's adoption system have noted a growing preference for the girl child over boys. Adoption is one way of controlling and preventing the raging problem of female foeticides and crimes against women in India. And what better way of giving a nice so normal life to a kid who really needs it.

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Pundalik Dharmaji Katkar   25 Jun 2020 1:51pm
If a person has married- living children and still s/he wants to adopt a child , howcould it be possible? please suggest.
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