ADOPTION IN INDIA

ADOPTION

An adoption is when an adult legally assumes the role of a parent for a child. Adoptions happen for numerous reasons, such as when the child’s birth parents are unable or unwilling to care for their child, when the birth parents are deceased, or when one birth parent remarries a spouse who wishes to assume legal parental rights.

Adoption can take place through a number of methods, ranging from adopting through an agency that places children with adoptive parents, adopting independently through an arrangement between the adoptive and birth parents, or adopting a child from another country.[1]

Terms to know about Adoption[2]

  • Birth parent – The genetic mother or father of a child.
  • Confidential adoption – An adoption in which the birth parents and adoptive parents never meet or exchange identifying information; also called a closed adoption.
  • Foster parent – An adult who acts as a parent or guardian without legally adopting the child
  • Hague Convention on Intercountry Adoption – An international treaty that governs how prospective adoptive parents can legally adopt children from other countries
  • Home study – A study of a prospective adoptive parent’s home in order to determine the household’s ability to properly care for and nurture an adopted child
  • Open adoption – An adoption in which the birth parents and the adoptive parents have contact with each other before and/or after the adoption becomes final; also called a cooperative adoption
  • Termination of parental rights – A legal process that permanently terminates a parent’s rights to care for his or her child

LEGAL ADOPTION means “to take voluntarily (a child of other parents) as one’s own child especially in compliance with formal legal procedures”.[3]

Adoption can be both legal as well as illegal.

Under Indian law adoption is legal coalition between the party willing for adoption and a child, it forms the subject matter of ‘personal law’ where Hindu, Buddhist, Jaina or Sikh by religion can make a legal adoption.

In India there is no separate adoption laws for Muslims, Christians and Parsis, so they have to approach court under the Guardians and Wards Act, 1890 for legal adoption.

IN INDIA ONLY LEGAL ADOPTION IS VALID AND RECOGNISED

WHAT IS LEGAL ADOPTION IN INDIA

According to section 2(aa) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, “adoption means the process through which the adopted child is permanently separated from his biological parent and becomes the legitimate child of his adoptive parents with all right, privileges and responsibility that are attached to the relationship”.[4]

WHO IS ALLOWED TO ADOPT A CHILD IN INDIA?

In India, an Indian whether he is married or single, Non-Resident Indian (NRI), or a person belonging to any nationality (foreigner) may adopt a child.

The guidelines and documentation process for each group of adoptive parents may differ.

Under THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 following category of people can make adoptions:

  • Acc to Sec 7 of the Act  “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).[5]
  • Acc to Sec 7 of the Act  “Any female Hindu (including Buddhist, Jaina or Sikh by religion) who is of sound mind, not a minor and  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”.[6]

CONDITIONS FOR ADOPTION BY HINDU COUPLES OR SINGLE PARENT (Acc to Sec 11)

  1. In case of adoption of a son by any Hindu male or female, there should not be any living son in the succeeding three generation of the party (whether by legitimate blood relationship or by adoption) at the time of adoption.
  2. In case of adoption of a daughter by any Hindu male or female, they should not have any daughter or son’s daughter at the time of adoption.
  3. Where there is an adoption of a daughter by a male then the adoptive father should be at least twenty-one years older than the child.
  4. Where there is an adoption of a son by a female then the adoptive mother should be at least twenty-one years older than the child.
  5.  The same child may not be adopted simultaneously by two or more persons.
  6. The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption. Provided that the performance of datta homan, shall not be essential to the validity of an adoption.[7]

 

CASE LAW

  • Provision of section 11 requiring age difference between adoptive mother and adoptive son to be at least 21 years is mandatory in nature. Word ‘must’ cannot be read as ‘may’. This breach is fatal to adoption Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang Narayan Kanse, [8]
  • The defendant’s father only wanted that he should be reared up by Sankar and Sasi after the mother’s death and there had been no formal ceremony of adoption nor were Sankar and Sasi unfit to have children of their own, thereby negativing the adoption Urmila Devi v. Hemanta Kumar Mohanta[9]
  • The age of the plaintiff was 30 years and that of the adoptive mother 48 years six months, thereby contravening the provisions of section 11(iv) as the difference between the plaintiff and mother was only 19 years and not 21 years; Nemichand Shantilal Patni v. Basantabai[10]

WHO CAN BE ADOPTED? (Acc to Sec 10)

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.[11]

WHO CAN GIVE A CHILD IN ADOPTION? (Acc to Sec 9)

  • Both the parents/guardian of child;
  • One of them if the other has renounced the world or ceased to be Hindu or incase has become mentally unsound.
  • 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.[12]

Personal laws of  Muslim, Christian, Parsis and Jews do not recognise complete adoption so if a person belonging to such religion has a desire to adopt a child can take the guardianship of a child under section 8 of the Guardians and Wards Act, 1890.

This statute only makes a child a ward, not an adoptive child. According to this statute, the movement child turns to the age of 21, he is no longer consider as a ward and treated as individual identity.

In  Mohammed Allahadad Khan v. Muhammad Ismail  it was held that there is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System. Acknowledgement of paternity under Muslim Law is the nearest approach to adoption.

However, an adoption can take place from an orphanage by obtaining permission from the court under Guardians and Wards Act. Christians can take a child in adoption under the Guardians and Wards Act, 1890 only under foster care. Once a child under foster care becomes major, he is free to break away all his connections from his adoptive parents.

Intercountry adoption:  In India, there is no separate act that governs adoption by foreign citizens or NRIs but it is covered under Guidelines Governing  Adoption of Children, 2015. Under these guidelines misuse or illegal use of the children through adoption is prevented.

As per the Supreme Court Guidelines for intercountry adoption a foreign parent can adopt an Indian child before he/she completes the age of 3 years. In the absence of any concrete Act on intercountry adoption, the provisions of Guardians and Wards Act, 1890 will be followed for adoption.[13]

In case of adoption of abandoned, abused and surrendered children all intercountry adoptions shall be done only as per the provisions THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 and the adoption regulations framed by the Authority.

Guardians and Wards Act, 1890 remains silent about the adoption of orphans, abandoned and surrendered children. Chapter VIII of the Juvenile Justice (Care and Protection of Children) Act, 2015 deals with adoption in such category of the child. Section 58 of this Act defines that any Indian citizen of India, irrespective of their religion, if interested to adopt an orphan or abandoned or surrendered child, may apply for the same to a Specialised Adoption Agency, in the manner as provided in the adoption regulations framed by the Authority.

Section 57 of this Act deals with eligibility of prospective adoptive parents. As per this Section, the adoptive parents should be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him and both partners must consent for the adoption. A single or divorced person can also adopt in accordance with the provisions of adoption regulations framed by the Authority but a single male is not allowed to adopt a girl child.

Capacity to adopt under Juvenile Justice (Care and Protection of Children) Act

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 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 the umbrella term prospective adoptive parents as mentioned under section 57 of the JJ act 2015 and regulation 5 of AR, 2017.

  • The prospective parents should be mentally sound, physically fit sand 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 atleast two years of stable a.martial 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.[14]

WHO CAN BE ADOPTED?

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.

CARA (Central Adoption Resource Authority)[15]

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;
  • A non-resident Indian;
  • Foreign citizen.

WHO CAN GIVE A CHILD IN ADOPTION?

  • Both the parents/guardian of child;
  • One of them if the other has renounced the world or ceased to be Hindu or incase has become mentally unsound.
  • 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 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.

PROCEDURE FOR A VALID ADOPTION

  • Under the Hindu Adoption and Maintenance Act, 1956 the party willing for adoption can make application to Child Welfare Agency. Registration can be done either an Adoption Coordinating Agency (ACA) found in each state’s capital city, or an agency certified by the Central Adoption Resource Authority (CARA) in New Delhi.
  • After this, the agency conducts a preliminary interview with the adopting couple in order to understand their intention and motivation behind adoption.
  • Once the party decides which child are they going to adopt they file the petition at the court of apt jurisdiction, where court hearing takes place regarding adoption (the court is required to dispose the adoption case within 2 months).
  • Once the Court issues the decree, the adoption is finalized.

Under the Guardianship and Wards  Act, 1890, the party seeking guardianship has to file application to the Court where they provide complete information on them, reasons behind to become guardian of a child and other information asked in the application. After admitting the application, the court will set the date of hearing where it will hear and view evidence, requirements and considering the interests of a minor, then the court will decide whether the guardianship of a minor should be given to such party or not.

There is a directive that adoption proceedings have to be completed within two hearings, and the petition has to be disposed of within two months of the filing of the petition. The certified copy of the order has to be obtained by the agency within 10 days. The agency must also obtain the birth certificate of the child, with the names of the adoptive parents.[16]

 

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 about all the necessary documents , paperwork  which are required.

Step 2: Home study and counselling

In this the members of the organization or the agency will visit the house of the adoptive parents to do a home study . And sometimes the agency might also ask the parents to attend the counselling session in order to understand the strengths, 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 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 centre 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 ask 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.

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.[17]

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 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.

HOW MUCH TIME DOES THE ENTIRE PROCESS TAKE?

Adopting a child in India is a long process. Earlier, parents who wished to adopt would go to the nearest agency and register. The agency would match preferences of the couple with the children available. The match may or may not happen, and would take months, even years. Now, all adoption agencies have to upload details and the Central Adoption Resource Authority (CARA) software will match preferences across the country. This has lessened the duration of an adoption.

Drawbacks

  • Very strict rules – Domestic adoptions adhere to stringent guidelines and the eligibility of the adoptive families is scrutinized very strictly.
  • Deal with sudden change of mind of the mother – The biological mother of the unborn child may suddenly change her decision to hand over her child. Although there are legal restrictions, but the hopeful adoptive parents are often faced with these swinging decisions.
  • Delay or termination of the adoption – These changes in moods or decisions, may lead to unprecedented delay and even termination of the adoption process. Most often it is observed that such situations arise right at the final stages of the adoption.
  • Availability might be limited – It may so happen that fewer children are available for adoption and adoptive parents may not inclined to adopt a child from the (any) minority group.

 

 

 

 

[1] Find’s law team of legal writer, What is Adoption Law, 2020, https://www.findlaw.com/hirealawyer/choosing-the-right-lawyer/adoption-law.html.

[2] Find’s law team of legal writer, What is Adoption Law, 2020, https://www.findlaw.com/hirealawyer/choosing-the-right-lawyer/adoption-law.html.

[3] Himani Gupta, rules of child adoption laws in india, 2017, https://www.centrik.in/rules-of-child-adoption-laws-in-india/

[4] Ajay Thakur, All you need to know about child adoption laws In India, 2017, https://blog.ipleaders.in/all-you-need-to-know-about-child-adoption-laws-in-india/

[5] Section 7, THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956.

[6] Section 7, THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956.

[7] Section 11, THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

[8] AIR 2006 Bom 123.

[9] AIR 1993 Ori 213.

[10] AIR 1994 Bom 235.

[11] Section 10, THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

[12] Section 9, THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

[13] Ajay Thakur, All you need to know about child adoption laws In India, 2017, https://blog.ipleaders.in/all-you-need-to-know-about-child-adoption-laws-in-india/

[14] Ajay Thakur, All you need to know about child adoption laws In India, 2017, https://blog.ipleaders.in/all-you-need-to-know-about-child-adoption-laws-in-india/

[15] http://cara.nic.in/Parents/eg_ri.html

[16] Ajay Thakur, All you need to know about child adoption laws In India, 2017, https://blog.ipleaders.in/all-you-need-to-know-about-child-adoption-laws-in-india/

[17] Ajay Thakur, All you need to know about child adoption laws In India, 2017, https://blog.ipleaders.in/all-you-need-to-know-about-child-adoption-laws-in-india/

[18] Mahek Arora, Child Adoption in India: Rules, Process and Laws, 2019, https://parenting.firstcry.com/articles/a-complete-guide-to-child-adoption-in-india/

 

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