Adoption laws in India

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Adoption

Aim- This article tries to explain different Adoptions laws in India such as Laws, Rules and Policy related to Adoption in Hindu Adoptions and Maintenance Act, The Juvenile Justice (Care and Protection of Children) Act, Guardians and Wards Act and will also talk about several International Conventions regarding the same.

Adoption is one of the few concepts that have undergone a radical change in the course of transit from primitive to modern age. Like most other social institutions, adoption is essentially a product of historical and evolutionary process.The Old Hindu Law saw reforms post-independence period and one of them was in guise of a codified law on adoptions, called as Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred as HAMA). It allowed any person who comes within the definition of the word ‘Hindu’ as defined under Section 2 of HAMA to be eligible to take a child for adoption. There were various progressive changes that this new codified law brought, like adoption by female Hindu, girl child being eligible for adoption etc. Owing to our multicultural, multi lingual and multi religious sentiments in the country, it has been a difficult task to identify all complexities and bring into force an effective adoption policy uniformly in the country. Adoption shall be resorted to for ensuring right to family for the orphan, abandoned and surrendered children[1] and with advent of civilization; secular as well as religious needs have effect of process of adoption. The main object of adoption has been to secure performance of one’s funeral rights and to preserve the continuance of one’s lineage[2]. In recent times, adoption has been the best means to restore family life to a child deprived of his or her biological family. Various international conventions on Human Rights also expressly mention the positive duty to provide protection and assistance to children[3]. Furthermore, Convention on Rights of Child, 1989 (CRC) is a reservoir of various valuable rights concerning children[4]. HAMA provides for adoption of Hindu children by the adoptive parents belonging to Hinduism. This is not applicable to other communities like Muslims, Christians and Parsis. They had recourse to Guardians and Wards Act, 1890 (hereinafter GAWA), wherein they become guardians of children.

The process makes the child a ward, not an adopted child. Under this law, when children turn 21 years of age, they no longer remain wards and assume individual identities. They do not have an automatic right of inheritance.
The aforesaid enactments (i.e. HAMA and GAWA) remain silent about the orphan, abandoned and surrendered children. There was no codified legislation dealing with the adoption of the children of these categories. As a result, several misconceptions or irregularities appeared in respect of the custody, guardianship or adoption of these types of children, which were prejudicial to the interest of the children.

Considering all the aspects mentioned above, laudable attempt was undertaken by the legislature to include adoption norms in the Juvenile Justice (Care and Protection of Children) Act, 2000. This enactment allowed secular adoption whereby without any reference to the community or religious persuasions of the parents or the child concerned, a right appears to have been granted to all citizens to adopt and all children to be adopted. As per Supreme Court’s directions, specific guidelines have been laid down by Central Adoption Resource Authority (hereinafter CARA), which is now the apex controlling body in matter relating to adoption in India under the Ministry of Women and Child Development (MWCD) for legal adoption. Based on judgment in Lakshmi Kant Pandey v. Union of India[5] and Section 41(3) of the JJ Act, CARA has framed a set of guidelines

Capacity of the Indian Male & Female for Adoption

As discussed above, the two main legislation’s dealing with adoptions are:

1. The Hindu Adoptions and Maintenance Act, 1956; and

2. The Juvenile Justice (Care and Protection of Children) Act, 2000

  • Model Juvenile Justice Rules, 2016
  • Adoption Regulations, 2017 (AR)

The capacity to adopt under the above mentioned two legislation’s will be discussed below:

Capacity under Hindu Adoption &Maintenance Act, 1956: Capacity of Hindu males and females to adopt is discussed under Section 7 and 8 of HAMA respectively.

Hindu Male

According to Section 7 of the HAMA, any male, who is a Hindu can adopt if he fulfills the following conditions:

1. He is a major.

2. He is of sound mind.

  • The person taking in adoption must not suffer from idiocy or insanity
  • He must have the basic capacity to understand the provision of the Act (i.e. HAMA)
  • There is a very strong presumption favoring soundness of mind[6].
  • Deaf and dumb but possessed with the capacity to express through signs and gestures, though not clearly, is to be taken as a person of sound mind[7]

3. 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 her Hindu religion or has become of unsound mind, as per the declaration of a competent Court

  • In the case of divorce the consent is not necessary but in the case of judicial separation, consent would be necessary.
  • The consent must be obtained prior to the civil adoption takes place and not later on where the proviso is disregarded adoption is not valid[8]

4. If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding provision.

  • In case of two wives, consent must be of both the wives despite the fact that one of them was not living under the same roof for a big job of twenty or thirty years[9]
  • In case of Bholooram& Ors. Ramlal& Ors.[10]the question raised was whether consent of all the wives is necessary, if a person has more than one wife living at the time of adoption? Held: if a wife has absconded to a unknown place, it cannot be construed as her death in eyes of law unless requirements of Section 107 of Evidence Act are fulfilled. So long as, woman continues to be a wife in eyes of law, her consent is necessary for validity of an adoption under Section 7 of Act.

Hindu Female

Section 8[11] of the HAMA, 1956, enumerates that any female, who is a Hindu, can adopt a child if she complies with the following:

1. She is a major;

  • After the completion of the age of eighteen, a woman gets the capacity to adopt even though she herself is unmarried.
  • Where after the adoption, she gets married, her husband would be stepfather and she herself would remain adoptive mother as earlier.

2. She is of sound mind

3. She is unmarried or in case married, her marriage has been dissolved or her husband is no more or has completely renounced the world as well as his Hindu religion or has been so declared by a Court of competent authority to be of an unsound mind.[12]

  • Adoption by an unmarried can also take place despite the fact that she is having an illegitimate child[13]

Capacity under Juvenile Justice (Care & Protection of Children) Act, 2015

A couple or a single parent can adopt an orphan, abandoned and surrendered (OAS) child[14]however, nothing in this Act shall apply to adoptions made under HAMA[15]. By virtue of Section 38 of JJ Act, 2015 and Regulation 6 and 7 of AR, 2017 Child Welfare Committee (CWC) can legally declare an OAS child free for adoption and this Act also allows Children up to the age of 18 to be adopted[16]

Capacity of male/female under JJ Act, 2015 can be commonly grouped under the umbrella term Prospective Adoptive Parent(s) (hereinafter PAP) and is illustrated under Section 57 of JJ Act, 2015 and Regulation 5 of AR, 2017 as:

1. The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him.

2. In case of a couple, the consent of both the spouses for the adoption shall be required.

3. A single or divorced person can also adopt, subject to fulfillment of the criteria and in accordance with the provisions of adoption regulations framed by the Authority.

4. A single male is not eligible to adopt a girl child.

5. No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship.

6. The age of prospective adoptive parents, as on the date of registration, shall be counted for deciding the eligibility and the eligibility of prospective adoptive parents to apply for children of different age groups shall be as under:-

Age of the child Maxium composite age of PAPS (Couple) Maximum age of Single PAP
Up to 4 years 90 years 45 years
Above 4 years and below 8 years 100 years 50 years
Above 8 years up to 18 years 110 years 55 years

7. The minimum age difference between the child and either of the prospective adoptive parents shall not be less than twenty-five years.

8.  The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by stepparent.

9.  Couples with three or more children shall not be considered for adoption except in case of special need children as defined in Regulation 2(12) of AR, 2017, hard to place children as mentioned in Regulation 50 of AR, 2017 and in case of relative adoption and adoption by step-parent.

10. The eligibility and suitability of the PAPs is ascertained through a Home Study done by the Specialized Adoption Agency (SAA)[17]

After fulfilling all the requirements as mentioned above, documents are submitted and all adoptions under JJ Act, 2015 get completed on obtaining the Adoption Order from the Court concerned in consonance with procedures described under Section 61 of the JJ Act, 2015, Rules 45 & 46 of the JJ Model Rules, 2016 and Regulation 12, 17 & 55 of AR, 2017.

Process for Adoption by Indian male & female

Process of Adoption under HAMA

Process for Adoption under CARA

For in– Country Adoptions

 

For Inter – Country Adoptions: Under Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (Hague Adoption Convention), 1993[18]

Under Juvenile Justice Act, 2005

Under JJ Act, 2015, procedure for inter-country adoption of an OAS is dealt under Section 59. It enunciates that if an OAS could not be placed with an Indian or non-resident Indian prospective adoptive parent despite the joint effort of the Specialised Adoption Agency and State Agency within sixty days from the date the child has been declared legally free for adoption, such child shall be free for inter-country adoption[19]. Apart from that, Inter-country adoption is similar to domestic adoption.  Both consist of the legal transfer of parental rights and responsibilities from a child’s birth parent(s) or other guardian to a new parent or parents.

Laxmi Kant Pandey v. Union of India & Ors.[20]is the most important case in the area of inter-country adoption. In 1982, a petition was filed under Article 32 of the Constitution by advocate Lakshmi Kant Pandey alleging malpractices and trafficking of children by social organizations and voluntary agencies that offer Indian children for adoption overseas. A relief was sought restraining Indian based private agencies “from carrying out further activity of routing children for adoption abroad” and directing the Government of India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian children by foreign parents. The Supreme Court laid down detailed principles and norms to be followed for the adoption of children by the people overseas. Many examples and references were cited while ‘discussing the issue, including the statutory provisions and the international standards. The Supreme Court of India has laid down that every application from a foreigner/NRI/PIO (as applicable) desiring to adopt a child must be sponsored by a social or child welfare agency recognized or licensed by the Government or a Department of the Foreign Govt. to sponsor such cases in the country in which the foreigner is resident. The foreign agency should also be an agency ‘authorized’ by CARA, Ministry of Social Justice & Empowerment, Govt. of India. No application by a foreigner/NRI/PIO for taking a child in adoption should be entertained directly by any social or child welfare agency in India.

Comparison between HAMA & CARA:

Suggestions for the improvement in CARA

CARA Guidelines and with latest amendment of 2017 did prove as a ray of hope for many parents looking for adoption of children. But the enthusiasm for becoming parents is also starkly contradicted by India’s dismal adoption rates. The statutory body that was incorporated to streamline the adoption process has proved to be otherwise.

It is pertinent to note that it took at least three decades and several incidents that were arbitrary in nature to lay down guidelines for adoption. In guise of Lakshmi Kant Pandey[21] judgment, the Hon’ble Supreme Court laid down guidelines for inter-country adoptions and few years after that, the JJ Act was enacted to finally codify a secular (emphasis added) statute for adoptions. In the researchers opinion, we as a nation are still divided and struggling with religious beliefs. So much so that a process as natural and giving as birth of children and then adoption is being dragged into the umbrella of religious politics. Adoption is a noble cause, which brings happiness to kids, who were abandoned, or orphaned. This gives a chance for the humane side of civilization to shine through. It’s a beneficial program where the child is treated as the natural born child and given all the love, care and attention. In case of adoption, the conspicuously different laws for Hindus and Non Hindus creates an emotional problem. The non-Hindu parents, who may want to adopt a child and treat him/her as their own are not legally allowed to call themselves the parents or claim the child as their own. Hence, there has been a cry for a uniform civil code with respect to adoption.

A uniform civil code in adoption laws will not violate fundamental right to religion. It should be remembered that directive principles of States policy mandate the state to bring uniformity in laws.

The delay in the process of adoption is another shortcoming of the guidelines under CARA and need to be addressed. In the researchers humble opinion, to streamline the process, we need to ensure that there is awareness about adoption procedures and there are sufficient adoption centers. Currently, there are more PAPs waiting to adopt legally available OAS children than what is required.In recent times, adoption has been the best means to restore family life to a child deprived of his or her biological family, but it is not the panacea for multiple problems that cause children to be orphaned or abandoned. We also need to understand the problem of over – population.

Edited by Sakshi Raje

Reference

[1] Section 56 Of The Juvenile Justice (Care And Protection Of Children) Act, 2015

[2]Inder Singh v. Kartar Singh (AIR 1966 Punj. 258)

[3] Article 10 of International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR)

[4]See Article 20 of Convention of Rights of Child, 1989

[5] AIR 1984 SC 469

[6]Babubarelal v. Gulzari Devi (1979 All LJ 1333)

[7]Ambrish Kumar v. Hatu Prasad(1981) HLR 781

[8]Badrilal v. Bheru 1986 (1) HLR 81

[9]Bhooloo Ram v. Ram Lal 1989 (2) HLR 162

[10] 1989 JLJ 387 (Madhya Pradesh High Court)

[11]Section 8of the Act has been amended in 2010, which serve the purpose of equality when it comes to taking consent with other spouse while adopting a child. Also See, Duni Chand v. Paras Ram (AIR 1970 Del. 202), R. Ashok & Anr. v. R. BhagvathiAmmal (Deceased) & Ors. (1993) 1 MLJ 492

[12]Dashrath v. Pandu (1977) Mah LJ 358

[13] Ashoka Naidu v. Raymond (AIR 1976 Cal. 272)

[14] As per Section 56(1) and 58(1) of JJ Act and Regulation 4(a) of AR, 2017

[15] Section 56(3) of JJ Act, 2015

[16] Section 2(12) of JJ Act, 2015

[17]Section 58(2) of the JJ Act and Regulation 9(13) of AR, 2017

[18] India signed this Convention in 2003

[19] Section 59(1) of JJ act, 2015

[20] W.P. (Crl.) No. 1171 of 1982

[21]Supra note 5