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  • Neha Mohanty

Adoption laws in India

Adoption is one of those concepts that have undergone radical changes in the

movement from primitive to the modern age. It basically refers to the transferring of

the rights and responsibilities and obligations of a child’s biological parents to their

adoptive parents. It is a legal procedure. It establishes a parent-child relationship

between those people who are not associated with birth. It is a legal act of

permanently placing a child under a parent and transferring all the rights upon the

adoptive parents. In India adoption has been legally accepted and also provides

legitimate rights to the parents to adopt as well the child. In this article, we will read

and analyze associated the comprehensive adoptions in India, the various laws

associated with it, The requisites of adoption, the eligibility criteria of the

persons. A detailed study about adoption laws in India.



REQUISITES OF A VALID ADOPTION:-

1) The person adopting should be capable and should have the capacity to take

the child for adoption. And such capacity exists when he is of sound mind and is also

competent which means he should have attained the age of majority. He should not

be a minor.

2) The person should be capable of adopting. When the father is alive he can

alone give in to adoption but he can only do so with the consent of his wife unless

his wife is not of sound mind or if she has renounced the world or cased to be

Hindu. The same goes with the mother she can also alone give in to adoption if her

husband is not alive and is of unsound mind or have ceased to be Hindu.

3) The child adopted should be below 15 years of age. A boy or a girl can be

adopted. Before it was that only males can be adopted but now daughters can be also

adopted. The child should be Hindu and should not be adopted previously by

anybody else.


CAPACITY OF INDIAN MALE AND FEMALE FOR ADOPTION

The two main legislations dealing with adoptions are:-

1) The Hindu adoptions and maintenance act 1956

2) Juvenile justice care and protection of children act 2000

Capacity under Hindu adoption and maintenance act 1956- capacity to adopt

children under Hindu adoption and maintenance act (HAMA) is discussed below in

section 7 and section 8 of the act.


HINDU MALE:-

According to Hindu adoption and maintenance act any male who is a Hindu can

adopt if he fulfills these conditions

1) He should attain the age of majority

2) He must be of sound mind and must be competent to contract

3) The person taking in adoption must not suffer from insanity

4) He should be capable enough to understand the provisions of the act

He shall not adopt any child if he has a wife living at that time except with her

consent unless and until the wife has renounced the world or has become unsound

mind.

In the case of divorce, consent is not required but in the case of judicial separation consent

is necessary.

If a person has more than one wife while adopting then the consent of all the wives

is necessary unless the consent of any of the wife becomes unnecessary for any of

the reasons specified.


HINDU FEMALE:-

According to section 8 of the Hindu adoption and maintenance act, any female can

adopt if she fulfills certain conditions

1) She should attain the age of majority after the age of 18, a woman gets the capacity to adopt even though she is not married.

2) She must be of sound mind and must be capable enough to understand the

provisions of the act.

3) She is unmarried or in case she is married and her husband has been dissolved

or no more or has been declared by the competent court as unsound mind

Capacity to adopt under juvenile justice care and protection act (CARA)

A couple or a single parent can adopt an orphan, abandoned, and surrendered child.

Nothing in this act shall apply to adoptions under HAMA. By virtue of section 37

of the JJ Act, 2015 and regulation 6 and 7 of AR,2017 child welfare committee

can declare legally an orphaned, abandoned, up to and surrendered child free from

adoption and also allows children up to the age of 18 for adoption.


The capacity of male and female under the Juvenile justice act, 2015 can be grouped

under umbrella term prospective adoptive parents as mentioned under section 57 of

the JJ act 2015. The prospective parents should be mentally sound, physically fit and they should be fully prepared to adopt the child and also should be ready to provide good upbringing.


In the case of married couples both spouses, consent is required. A single male is not eligible to adopt a girl child. No child shall be given to any couple until they have at least two years of stable marital relationships. The minimum age difference between the adoptive child and the parents should not be less than twenty-five years. Couples who have three or more children shall not be allowed for adoption except in special need as mentioned in regulation 2(12) of AR, 2017.





WHO CAN BE ADOPTED?

Under section 10 of the Hindu adoption and maintenance Act,1956,

A person can be capable of adoption until and unless he fulfills the conditions

mentioned below:

1) He or she shall be a Hindu

2) He or she shall not be adopted earlier

3) Only unmarried child can be adopted

4) He or she must be below the age of 15 years to be adopted

As per Juvenile Justice(care and protection of children) and Guardianship law:

A child may be adopted who is not a Hindu?

Who has not completed the age of 18 years that means he/she is a minor

An orphan or can be an abandoned child.


CARA ( central adoption resource authority):-

Cara is a statutory body under the ministry of women and child development,

Government of India. It functions as the central or nodal body of the adoption of

Indian children and monitors the in-country and inter-country adoptions.

Who can adopt:-

A single woman( unmarried, widow, divorcee) or married couple

An Indian - non-resident Indian

Foreign citizen

Who can give a child in adoption?

a) Both the parents/guardian of a child

b) One of them if the other has renounced the world or ceased to be Hindu or incase

has become mentally unsound.

c) If both the parents are dead or not competent in law then, in that case, the guardian can

give in adoption with the permission of the court.


Criteria/eligibility of the child to get adopted under CARA:-

1) The child must the be legally free of adoption

2) Two unrelated children cannot be proposed to a foreign family at a time.

3) A child can be placed in adoption before it reaches the age of 12.

4) The child consent has to be obtained wherever applicable


Conditions for adoptions

Under section 11 of the hindu adoption and maintenance act, 1956:

a) If a person is a male and the child he is adopting is a female then the father adopting should be at least 21 years older than the child.

b) If the person is female and the child adopting by her is a male then also the adoptive mother should be twenty-one years than the child.

However, there is no condition of age difference if the child to be adopted is of

same sex.

c) Clause 1 of section 11 if any adoption is of a son, the adoptive father or mother should not have earlier a Hindu son, son’s son whether by blood relationship or by adoption during adoption. A Hindu is not restricted from taking a son in adoption in presence of an illegitimate son Hindu.


If the adoption is of a daughter, then the parents adopting should not have a Hindu

daughter or son’s daughter whether by blood relationships or by adoption.

But if the daughter or son’s daughter has ceased to be a Hindu then the adoption is

not barred. If a daughter is suffering from any kind of disease or mental disability

then the parents cannot be allowed to adopt another child.

According to clause 5 of the section same child cannot be adopted by two or more

persons. The child adopted must be given and taken in adoption by the respective parents or guardian concerned or under their authority with the intention to transfer the child

from the family or in an case of abandoned child whose family is not known, from the

place it has been brought up to the family.


List of documents required for adoption

The following documents are required for the procedure of adoption

1) Proof of identity( voter id card, pan card, driving license, passport)

2) Proof of address indicating residence in India exceeding 365 days

3) Certificate of marriage

4) Three photographs of recent of the adoptive family

5) Two letters of recommendation from persons who know the family well. Such

type of recommendations should not be from immediate spouses

6) Written consent of adoptive/ biological child and if they are above 7 years of

age

Legal procedures of adoption:-

1) All the documents of the adoptive parents have to be submitted to the

an organization such as pan card, identity proof, medical report of

parents, counseling photographs, and consent of both parents

There are certain procedures are required for adoption:-


Home Inquiry and counseling of parents:- After the parents submit all their documents to the agency from where they have adopted the next step is some social workers from that particular organization come to the house of the parents to study the things and to check for their satisfaction that the parents are capable enough to adopt or not. And after that, they do counseling of the parents to know their strength, how prepared they are for adopting a child.

When everything is done after counseling then the organization shares the

medical reports and other relevant information about the child to the parents and

then give permission to parents to spend time with the children so that they can

create a bond with them.

A petition filed in the court:- The documents of adoption is handover to the lawyer

to present before the court for the process of adoption and then at the end of the

process parents sign the petition of the adoption.



ADOPTION PROCESS IN INDIA:-

STEP 1

Registration:-

Firstly the adoptive parents have to register their names with an authorized

agency. The parents can visit the agencies nearer to their area to register

themselves where a social worker will explain in detail all the necessary

documents, paperwork which is required.


Step 2

Home study and counseling:-

In this, the members of the organization or the agency will visit the house of the

adoptive parents to do a home study counseling. And sometimes the agency might also ask

the parents to attend the counselling session in order to understand the strengths, a needs weakness of the parents. According to CARA, the home study need to be completed within 3 months from the day which the parents registered.


Step 3

Referral of the child:- The agency shall inform the parents about the child when

ready for adoption. The organization shall share all necessary information like

about the child’s medical reports and all to the parents and also allow them to

spend time with the child to create a bond between them.


Step 4

Acceptance of the child:- Once the parents are comfortable after all the procedures

then they have to sign few documents related to it.


Step 5

Filing of the petition:-

All the important relevant documents are submitted to the lawyer who then

prepares a petition to be presented in court. Once it is all ready then the lawyer

informs the parents and they come to sign the petition in front of the officer.


Step 6

Pre-adoption foster care:- once the petition is signed in the court then the parents

can take the child to the pre adoption center for understanding properly the habits

of the child from the staff.


Step 7

Court hearing:- The parents have to attend the hearing in court which takes place

between the judge and the parents. The judge inquires and asks questions to the

parents and mentions the amount that has to be invested in the name of the child.


Step 8

Court orders:-

Once the receipt of investment is made shown then the judge finally passes the

adoption orders to the parents.


INHERITANCE RIGHTS OF THE ADOPTIVE CHILD:-

An adoptive child is treated the same as a biological child of his or her adoptive

parents. According to law, the adoptive child has the same legal rights to benefit

from the property as that of a biological child.

The adoptive child can claim stakes on their adoptive parents' property.

But according to the Hindu adoption and maintenance act, the adoptive child loses

rights from their biological parents once they are adopted. They cannot claim any

rights from their adoptive parents or coparceners

If the parent of the adoptive child is disqualified from any ancestral property in

general then in that case the child adopted cannot claim their stake on it.


CONCLUSION

In our country India every child has the right to get adopted. It is a legal process.

India the second highest population in the world still children are not given proper

care by their parents They are sent to orphanages, child care centers, agencies

because of the issues and differences that take place in their families. Sometimes

we see that many small children roaming on the roadside and begging for money,

food, dresses. And after witnessing such conditions of children people ignore them

and they don’t try to even feed them and help them when they have the capability

to do so. For these reasons maximum children in our country are left alone and

have no parents.


Through this process of adoption the childless parents can have a proper care

protection love and affection and can also have a bright future. Citizens of India

who are Hindus,Sikhs,jains and Buddhists are allowed to adopt a child. Earlier

hindu laws had many restrictions that it allowed only male to be adopted and

restrictions were placed on caste, religion. But now it has changed gender

discrimination has been reduced to a certain extent. In the modern hindu law every

male or female has the right to adopt a child provided he or she should attain the

age of majority.

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