Adoption is a profound act of love, offering a new chance at life and family to children who have faced abandonment, neglect or other challenging circumstances. In India, adoption is governed by the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereafter referred to as the JJ Act) and its subsequent amendments.
This legal framework aims to ensure the welfare and well-being of orphaned, abandoned or surrendered children by facilitating their adoption into loving families. In this comprehensive article, we will explore the adoption under the Juvenile Justice Act, its significance, eligibility criteria and the legal aspects surrounding it.
The Significance of Adoption under Juvenile Justice Act
Adoption is a remarkable institution with far-reaching societal impacts. It not only transforms the lives of the adopted children but also shapes the future of families and communities. The importance of adoption under the Juvenile Justice Act can be understood through various lenses:
- Child Welfare: At the heart of the JJ Act’s adoption provisions lies the welfare of vulnerable children. It provides a legal framework for ensuring that children without parental care receive the love, support and nurturing environment they need for healthy development.
- Right to Family: Adoption safeguards every child’s fundamental right to grow up in a loving family, providing them with a sense of belonging, stability and security.
- Empowering Prospective Adoptive Parents: The JJ Act opens the door for individuals, irrespective of marital status, to fulfil their dreams of parenthood. It encourages childless couples, single parents and even parents with existing biological children to adopt, expanding the pool of prospective adoptive parents.
- Promoting Social Inclusion: Adoption promotes social inclusion and breaks down societal stigmas associated with adoption. It underscores the idea that love, care and support are essential components of parenthood, regardless of biological connections.
The Juvenile Justice Act, enacted in 2000 and subsequently amended in 2006 and 2015, is the principal legislation governing the care, protection and rehabilitation of children in India. Its provisions related to adoption primarily focus on orphaned, abandoned or surrendered children.
These provisions are instrumental in streamlining the adoption process, safeguarding children’s rights and protecting prospective adoptive parents’ interests.
Adoption under Juvenile Justice Act – Section 56 of the JJ Act
Adoption serves as the means to ensure the right to a family for orphaned, abandoned and surrendered children, in accordance with the provisions of this Act, the rules established under it and adoption regulations set forth by the Authority.
Adoption of a child from a relative by another relative, regardless of their religion, can be pursued following the provisions of this Act and the adoption regulations prescribed by the Authority.
The provisions of this Act do not apply to the adoption of children governed by the Hindu Adoption and Maintenance Act, 1956.
All international adoptions must strictly adhere to the provisions of this Act and the adoption regulations established by the Authority.
Any individual who transfers a child’s care and custody to another person in a foreign country or participates in such an arrangement without a valid court order will be subject to penalties as outlined in Section 80.
Adoption is a means to secure the right to a family for children within the Organisation of American States (OAS), as stipulated in Section 56(1) of the JJ Act.
The primary consideration in all adoption proceedings is the best interests of the child, as specified in Regulation 3(a) of AR, 2017.
Child placement should ideally occur within the child’s own socio-cultural environment, in accordance with Regulation 3(b) of AR, 2017.
Every adoption must be officially registered on the CARINGS platform, as mandated by Regulation 3(c) of AR, 2017.
Strict confidentiality measures must be adhered to, as required by Section 74 of the JJ Act and Regulation 3(c) of AR, 2017.
- Domestic adoption of OAS children within the same country.
- International adoption of OAS children to foreign countries.
- Domestic adoption by relatives of the child.
- International adoption by relatives of the child residing abroad.
- Adoption by step-parents.
The JJ Act lays down specific eligibility criteria for prospective adoptive parents, ensuring that children are placed in secure and nurturing environments:
- Physical and Mental Health: Prospective adoptive parents should be physically fit, mentally sound and capable of providing a safe and caring environment for the child.
- Marital Status: The Act allows individuals, regardless of their marital status, to adopt. Married couples must provide their consent jointly.
- Single and Divorced Individuals: Single or divorced individuals can also adopt, subject to meeting the criteria and complying with the adoption regulations framed by the Authority.
- Gender Restrictions: Single males are generally not eligible to adopt female children. This provision is aimed at protecting the best interests of the child.
- Adoption Regulations: Prospective adoptive parents must adhere to the regulations for adoption under the Juvenile Justice Act, established by the Authority. These regulations cover various aspects of adoption, including documentation, procedural requirements and post-adoption follow-ups.
Section 41(5) of the Juvenile Justice (Care & Protection of Children) Act, 2000 outlines the requirements that must be met for a child to be offered for adoption:
- In the case of an abandoned child, the child can be considered legally available for placement if two members of the Committee declare so.
- For surrendered children, the child can be offered for adoption once the two-month period for reconsideration by the parents has lapsed.
- In the case of a child who is capable of understanding and expressing consent, their consent must be obtained for adoption under Juvenile Justice Act.
Procedure for Adoption by Indian Prospective Adoptive Parents Living in India – Section 58 of JJ Act
Indian prospective adoptive parents residing in India, irrespective of their religion, who wish to adopt an orphaned, abandoned or surrendered child, may submit their application to a Specialised Adoption Agency, following the procedures specified in the adoption regulations established by the Authority.
The Specialised Adoption Agency will conduct a home study report for the prospective adoptive parents. Upon determining their eligibility, the agency will refer a child who has been legally declared available for adoption to them. This referral will include the child’s study report and medical assessment, following the procedures outlined in the adoption regulations framed by the Authority.
Upon receiving the child’s acceptance from the prospective adoptive parents, along with the child’s study report and medical report signed by the parents, the Specialised Adoption Agency will place the child in pre-adoption foster care. Subsequently, the agency will file an application in court to obtain the adoption order, following the procedures laid out in the adoption regulations set forth by the Authority.
Upon receiving a certified copy of the court order, the Specialised Adoption Agency will promptly provide the same to the prospective adoptive parents.
The progress and well-being of the child within the adoptive family will be monitored and assessed in accordance with the guidelines specified in the adoption regulations framed by the Authority.
Before issuing an adoption order under Juvenile Justice Act, the court shall ensure that:
(a) The adoption is in the best interests of the child.
(b) Due consideration is given to the child’s wishes, taking into account the child’s age and understanding.
(c) Neither the prospective adoptive parents nor the Specialised Adoption Agency, nor the parent or guardian of the child in the case of relative adoption, has given or agreed to give, nor received or agreed to receive, any payment or reward in exchange for the adoption, except as allowed under the adoption regulations established by the Authority, such as adoption fees, service charges or child care contributions.
Adoption proceedings shall be conducted in camera and the court shall conclude the case within two months from the date of filing.
Any documentation and procedural requirements not explicitly provided for in this Act, concerning the adoption of orphaned, abandoned or surrendered children by Indian prospective adoptive parents residing in India, non-resident Indians, overseas citizens of India, persons of Indian origin or foreign prospective adoptive parents, shall be in accordance with the adoption regulations established by the Authority.
Specialised adoption agencies are responsible for ensuring that the adoption cases of prospective adoptive parents are concluded within four months from the date of receiving the application. The authorised foreign adoption agency, Authority and State Agency are required to monitor the progress of adoption cases and intervene when necessary to ensure adherence to the specified timeline.
A child who is the subject of an adoption order issued by the court shall legally become the child of the adoptive parents. The adoptive parents shall assume the legal status of the parents of the child as if the child had been born to them.
This legal transformation applies to all purposes, including matters of inheritance, starting from the date when the adoption order becomes effective. On and from this date, all familial ties of the child in the biological family shall be severed and replaced by those established by the adoption order within the adoptive family.
However, any property previously owned by the adopted child before the adoption order takes effect will continue to be owned by the adopted child, subject to any obligations associated with that property, including the responsibility, if any, to support relatives in the biological family.
Despite any provisions in other existing laws, information regarding all adoption orders under Juvenile Justice Act issued by the respective courts must be regularly forwarded to the Authority on a monthly basis. This should be done in accordance with the procedures outlined in the adoption regulations set forth by the Authority, enabling the Authority to maintain comprehensive adoption data.
Any individual or organisation that offers, gives or receives an orphaned, abandoned or surrendered child for the purpose of adoption without adhering to the provisions and procedures specified in this Act shall be liable to punishment. Such punishment may include imprisonment for a term extending up to three years, a fine of one lakh rupees or both.
In cases where recognised adoption agencies commit this offense, in addition to the penalties imposed on the responsible individuals, the agency’s registration under section 41 and its recognition under section 65 may be revoked for a minimum period of one year.
All reports related to the child and considered by the Committee or the Board shall be regarded as confidential. However, the Committee or the Board, at its discretion, may share the substance of these reports with another Committee or Board, the child, the child’s parent or guardian. It may also provide an opportunity for these parties to produce relevant evidence pertaining to the matters discussed in the report.
Notwithstanding any provision in this Act, the victim shall not be denied access to their case record, orders and relevant documents.
Previously, the Juvenile Justice Board was responsible for permitting child adoption instead of the court. However, the Juvenile Justice (Amendment) Act, 2006 intentionally replaced the term “Board” with “Court.” Therefore, in cases of adoption under Juvenile Justice Act, petitions should be filed under Section 41 of the Act before a Court.
It is essential to understand which specific court is meant by the Act to handle adoption matters concerning orphaned, abandoned and surrendered children since the Act does not define the term “court.” In this regard, the Model Rules established by the Central Government regarding adoption should be considered.
According to Rule 33(5) of the Central Rules under the Act, the term “Court” refers to a civil court with jurisdiction over adoption and guardianship matters. This may include the court of the District Judge, Family Court and City Civil Court.
However, the provision in these Rules that empowers the Family Court has faced criticism from the judiciary. In the case of Manuel Theodore D’Souza [II (200) DMC 292], the Bombay High Court observed that the right to adopt, being a fundamental right, must be enforceable through a civil court, as it falls under the ambit of Section 9 of the Civil Procedure Code.
It was also stated that District Courts or High Courts typically handle disputes regarding child custody, guardianship, etc. Applications for adoption by a guardian should be treated as miscellaneous applications under the Guardians & Wards Act.
A similar conclusion was reached by the Kerala High Court in the case of Andrew Mendez & others v. State of Kerala (2008), where it closely examined the term “Court” in the Juvenile Justice Act and the jurisdiction of the Family Court as mentioned in the Central Rules. According to Section 7(1)(g) of the Family Courts Act, the Family Court has the authority to address matters of guardianship.
This raises the question of whether a claim for adoption can be brought under any sub-clauses (a) to (g) of Section 7(1) of the Family Courts Act, making the Family Court the appropriate court for Section 41(6) purposes.
However, in the case of Vinod Krishnaan v. Missionaries of Charity [1997 (2) KLT 863], the Kerala High Court held that the Family Court cannot be authorised to deal with claims for adoption under Section 9(4) of the Hindu Adoption & Maintenance Act. Only the District Court with jurisdiction should handle such applications.
Building on this observation, the Kerala High Court in the Andrew Mendez case stated that Section 7(1)(g) is insufficient to empower the Family Court to consider an adoption application as incidental to guardianship and custody.
Another crucial point raised in this case is that Section 7(2)(b) of the Family Courts Act states that the Family Court shall have and exercise any other jurisdiction conferred on it by any other enactment. Although the Juvenile Justice Act is an enactment, it does not explicitly state that the Family Court shall be the court for the purposes of Section 41(6).
On the contrary, the Central Rules promulgated under Section 68 of the Juvenile Justice Act confer such jurisdiction on the Family Court but do not fall within the scope of an “enactment,” as explained by the High Court in the aforementioned case. Consequently, the Kerala High Court concluded that the Family Court does not have jurisdiction to entertain an application for adoption under Juvenile Justice Act by a guardian under Section 41(6) of the Juvenile Justice Act and it cannot be deemed the court specified under Section 41(6).
Instead, it is the District Court that has the jurisdiction to consider such applications under Section 41(6) of the Juvenile Justice Act, 2000, read in conjunction with Rule 33(5) of the Central Rules.
Adoption under the Juvenile Justice Act is a legal process that plays a pivotal role in ensuring the well-being and future of orphaned, abandoned or surrendered children in India. It upholds their right to a loving family and provides prospective adoptive parents with the opportunity to provide a nurturing home.
While challenges and controversies exist, the Act continues to evolve to address them, emphasising the significance of adoption in building strong families and inclusive communities. Adopting a child is not only a legal act but also a profound expression of love, compassion and the enduring human spirit.
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