Adoption Laws in India

Adoption is a noble and legal process through which a child becomes the legitimate child of adoptive parents, receiving the same rights, privileges, and responsibilities as a biological child. In India, adoption is more than just an act of charity; it is a legal responsibility, and the laws surrounding it ensure the welfare and protection of orphaned, abandoned, or surrendered children.

The legal framework for adoption in India primarily consists of the Hindu Adoptions and Maintenance Act, 1956 (Hindu Adoptions and Maintenance Act), applicable to Hindus, and the Juvenile Justice (Care and Protection of Children) Act, 2015 (Juvenile Justice Act), which is secular and applies to all citizens regardless of their religion. In addition, the Guardians and Wards Act, 1890 governs guardianship, particularly for Muslims and Christians, as their personal laws do not recognise full adoption.

This article provides a detailed analysis of adoption laws in India, their provisions, differences, and case laws that shape adoption rights.

Laws for Adoption in India

The Hindu Adoptions and Maintenance Act, 1956 

Hindu Adoptions and Maintenance Act is a personal law governing adoption for Hindus, Buddhists, Sikhs, and Jains. This Hindu law codifies and simplifies adoption for these communities, providing detailed provisions about who can adopt, who can give a child for adoption, and the legal impact of adoption.

Key Features of Hindu Adoptions and Maintenance Act

1. Applicability:
   • Applicable to Hindus, Buddhists, Sikhs, and Jains.
   • Not applicable to Muslims, Christians, Parsis, or Jews.
2. Scope of Adoption:
   • A child adopted under Hindu Adoptions and Maintenance Act is treated as a biological child.
   • Adoptive parents and children have full inheritance and legal rights.
3. Definition of Adoption: Adoption creates a permanent legal relationship between the child and the adoptive parents.

Conditions for a Valid Adoption (Section 6)

For an adoption to be valid, the following conditions must be fulfilled:

1. The person adopting must have the legal capacity and right to adopt.
2. The person giving the child for adoption must be legally competent to do so.
3. The child being adopted must be eligible for adoption.
4. The adoption must be formalised with the performance of “Datta Homam” or any other religious ceremony.

Who Can Adopt Under Hindu Adoptions and Maintenance Act?

• Hindu Male (Section 7):
  • Must be of sound mind and not a minor.
  • Requires consent of the wife unless she is:
    1. Dead,
    2. Declared of unsound mind, or
    3. Ceased to be a Hindu.
  • Consent from all wives is mandatory if there is more than one.
• Hindu Female (Section 8):
  • Must be of sound mind, not a minor, and capable of adopting.
  • A married woman can adopt if her husband:
    1. Is dead,
    2. Has renounced the world,
    3. Declared of unsound mind, or
    4. Converted to another religion.

Who Can Give a Child for Adoption? (Section 9)

1. Biological parents (both mother and father) with mutual consent.
2. A mother can give the child for adoption if the father is:
   • Dead,
   • Renounced the world,
   • Of unsound mind, or
   • Not a Hindu.
3. A guardian can give the child for adoption with court approval if:
   • Both parents are dead,
   • The child is abandoned, or
   • Parents are incapable of caring for the child.

Eligibility of the Child for Adoption (Section 10)

1. The child must be a Hindu.
2. The child must be under 15 years of age.
3. The child must not already have been adopted.

Impact of Adoption (Section 12)

• Once adopted, the child is treated as the biological child of the adoptive parents.
• The adopted child’s relationship with the biological parents ceases.
• The adopted child gets equal inheritance rights as a natural-born child.

Gender Considerations

• Section 11 prevents gender bias in adoption:
  • A male cannot adopt a girl unless he is 21 years older than her.
  • Similarly, a female cannot adopt a boy unless she is 21 years older than him.

Case Law: Malti Roy Chowdhury vs Sudhindranath Majumdar emphasised gender inequality, where married women were initially denied the right to adopt. However, subsequent amendments and judicial precedents addressed this disparity.

The Juvenile Justice (Care and Protection of Children) Act, 2015

The Juvenile Justice Act provides a secular legal framework for adoption in India. It enables adoption for non-Hindus and facilitates inter-country adoption, ensuring the welfare of abandoned, orphaned, or surrendered children.

Key Features of the Juvenile Justice Act

1. Applicability:
   • It is a secular law applicable to all citizens, irrespective of religion.
   • Governs the adoption of orphaned, surrendered, or abandoned children.
2. Adoptive Parents:
   • Can be single or married.
   • Single males cannot adopt a girl child.
   • Minimum 25 years of age difference is required between adoptive parents and the child.
3. Role of CARA (Central Adoption Resource Authority):
   • CARA is the nodal body responsible for regulating adoption processes in India.
   • It oversees in-country and inter-country adoptions.
4. Types of Adoption under Juvenile Justice Act:
   • In-Country Adoption: Adoption within India.
   • Inter-Country Adoption: Foreign prospective parents can adopt Indian children.

Eligibility for Adoption (Section 57)

1. Prospective adoptive parents must be:
   • Physically, mentally, and financially stable.
   • Motivated to adopt a child for their well-being.
2. Consent of both spouses is mandatory for married couples.
3. A minimum of two years of a stable marital relationship is required.

Adoption Process

1. Registration: Parents register with a recognised adoption agency.
2. Home Study Report: A social worker conducts a study of the home and family.
3. Referral of the Child: Medical and psychological reports of the child are shared.
4. Matching and Acceptance: Parents are matched with a child.
5. Pre-Adoption Foster Care: Parents spend time with the child before adoption.
6. Court Order: A court finalises the adoption.
7. Follow-Up: The adoption agency monitors the child’s welfare.

Role of Specialised Agencies

• State Adoption Resource Agency (SARA): Monitors adoption processes at the state level.
• Specialised Adoption Agencies (SAA): Ensure child welfare.
• District Child Protection Units: Address child rights and adoption-related issues.

Case Law: Shabnam Hashmi vs Union of India (2014) – The Supreme Court ruled that adoption under the Juvenile Justice Act is a fundamental right, overriding personal laws.

Guardians and Wards Act, 1890

The Guardians and Wards Act provides a legal framework for guardianship rather than adoption. This is particularly relevant for Muslims, Christians, Parsis, and Jews.

Key Features

1. Does not grant full legal adoption rights.
2. Establishes a guardian-ward relationship.
3. The ward can sever ties with the guardian upon turning 21.
4. Adoptive parents do not have inheritance rights under this Act.

Muslim Law

• Islam does not recognise adoption; instead, it allows “Kafala” or sponsorship.
• Under Kafala, a child is cared for but does not inherit property.
• Adoption by Muslims can be formalised under the Juvenile Justice Act or Guardians and Wards Act.

Case Law: State vs Ashabuddin – The Delhi High Court held that Muslims could adopt under the Juvenile Justice Act without violating their personal laws.

Differences Between Hindu Adoptions and Maintenance Act and Juvenile Justice Act

Challenges in Adoption Laws in India

1. Lengthy Process: Multiple steps such as court orders, home studies, and bureaucratic delays.
2. Lack of Uniformity: Different laws for Hindus, non-Hindus, and foreigners complicate the adoption process.
3. Gender Bias: Single males cannot adopt girls under the Juvenile Justice Act.
4. LGBTQ+ Adoption: LGBTQ individuals can adopt as single parents but are not allowed to adopt as couples.
5. Awareness Issues: Many prospective parents lack information about legal adoption processes.

Conclusion

Adoption in India is a progressive legal concept aimed at child welfare and family formation. While the Hindu Adoptions and Maintenance Act caters to Hindus, the Juvenile Justice Act bridges the gap for non-Hindus and foreigners, promoting inclusivity and secular adoption processes. However, challenges such as bureaucratic delays, lack of uniformity, and gender biases remain areas for reform.