According to Cambridge Dictionary, the term adoption is defined as “the act of legally taking a child to be taken care of as your own”. In other words, adoption is nurturing a child as his/her non-biological parent. In family law, the adoptive parent has certain rights, power and duties towards the child. Likewise, the adoptive son or daughter has certain rights or duties towards the parent. The effect of adoption is that it legally defines the relationship between the child and the adoptive parent. The adoptive child shall be deemed to be the child of the adoptive father or mother.
Usually, the mother or father of the child are capable of giving up for adoption, however, in certain circumstances the guardian of the child can also provide for adoption. Though, there are different adoption laws under different religions. The Hindu law on adoption can be regarded as most perspicuous as the provisions related to adoption for Hindus are codified under the Hindu Adoption and Maintenance Act, 1956. On the other hand, the Muslim, Parsi and Christian doesn’t have clear adoption laws. However, the answer to the question whether the guardian can give a child for adoption is yes and is discussed as follows.
The provisions for adoption are stated under chapter II of the Hindu Adoption and Maintenance Act, 1956. Under Section 9 of the act, it mentions that only father or mother or the guardian of the child are capable of giving up the child for adoption. Further, it states that in the following circumstances a guardian can give up the child for adoption:
- When both mother and father are dead
- Or have renounced the world.
- Or are of unsound mind.
- Or the parentage is not known.
Although it is important for the court to be satisfied before granting the permission that the adoption is best for the welfare of the child. In such circumstances, a guardian is a person having the care of the person of a child or of both his person and property and includes-
(a) a guardian appointed by will of the child’s father or mother
(b) a guardian appointed or declared by a court
As mentioned earlier, the laws on adoption are not clear regarding adoption. Yet there are certain provisions mentioned for adoption that are provided under the Guardians and Wards Act, 1890 and Juvenile Justice Act, 2015.
- The Hindu Adoption and Maintenance Act, 1956 (No. 78), Act of Parliament, 1956.