Adoption refers to the process of transferring from its biological family to one’s own family which results in the permanent transfer of all the rights and responsibilities of the child from the biological parents to the adoptive parents. In India, this practice has been ancient. Many childless couples adopt children, especially sons, with a view that they will help attain spiritual salvation by performing the necessary funeral rites and also to fulfill parental needs and wishes. Adoption is of great importance as it gives new families to unfortunate children who cannot be, unfortunately, brought up by their own biological parents.
I. Adoption in ancient India:
Traditionally, adoptions in India were within the families itself and the members of a family came forward to help a childless couple to enjoy the joys of parenthood. A sister having three daughters giving one daughter to her elder childless sister or a man adopting his teenage brother-in-law when his own son died in an accident were common examples of adoption which were intra-families. According to the Smritis, adoption was parent based and not child based. Adoption of a son was more frequent as it was believed that a male could only perform the necessary funeral rites.
In recent years, however, the views on adoption have changed and it is moving in the direction of being child based and not parent based. A great amount of stress is laid to ensure the well being of the child in question and as a result of that, various laws have been enacted to oversee adoption process in India.
II. Adoption laws in India:
The citizens of India can adopt under three major legislations:
- The Hindu Adoptions and Maintenance Act, 1956
This act applies to all Hindus, Buddhists, Jains and Sikhs and it came into force on 21st December 1956. This act consists of 30 sections with sections 1-17 dealing with the adoption rules. A few major points of this Act are:
- Section 6 is the main section of this Act which puts down the requisites of a valid adoption. No adoption shall be valid unless the person adopting, the person giving in adoption and the person who is to be adopted have the capacity to do so.
- Section 7 says that any Hindu male who is a major and of sound mind can adopt and if he has a wife, he has to take the consent of the wife.
Section 8 says that any Hindu female who is a major and of sound mind can adopt and if she has a husband, she has to take the consent of the husband.
However, in both the cases, the consent of the wife/husband need not be taken if the wife/husband has completely and finally renounced the world, has ceased to be a Hindu or has been decided by a Court of competent jurisdiction to be of unsound mind.
- Section 9 talks about the capacity of the person to give in adoption. Only the mother and father can give in adoption and if they both are dead or have renounced the world or have been declared to be of unsound mind or have abandoned the child or the child’s parentage is not known, then the guardian of such child can give in adoption with prior permission of the Court.
- Section 10– a child can be given in adoption under this Act only if he/she is a Hindu, not already been adopted, not been married and not completed the age of 15 years.
- Section 11 enlists some other conditions of a valid adoption such as a person cannot adopt a son if he already has a living son, grandson or great grandson and cannot adopt a daughter if he already has a living daughter or granddaughter. Also, there must be an age gap of at least 21 years between a single man adopting a girl and between a single woman adopting a boy.
- Section 12– Children adopted under this Act get the same legal rights as a biological child might.
- Adoption under this act is irrevocable by virtue of Section 15.
- The Guardians and Wards Act, 1890
Prior to the Juvenile Justice (Care and Protection) Act, 2000, this was the only legislation which allowed non-Hindus (those not covered under the Hindu Adoptions and Maintenance Act 1956) to adopt.
- Here, the parent adopting is called a ‘guardian’ and the child is a ‘ward’ hence the child does not have the same rights as that of a biological child.
- Any child under the age of 18 can be a ward.
- Unlike the HAMA 1956 where adoption is irrevocable, the guardianship can be revoked by the courts or by the guardian himself. Also, here both spouses can legally be guardians whereas under HAMA a married man/woman cannot adopt without the consent of the wife/husband.
- Single people can adopt without any age difference restrictions.
- The Juvenile Justice (Care and Protection) Act 2000 (amended in 2006)
This act mainly deals with the care and rehabilitation of children irrespective of the fact that they are biological or adoptive. A tiny section was inserted with regards to adoption however by the amendment of 2006 this section was expanded. The major points of this act are:
- Any Indian citizen can adopt a child who is legally available for adoption.
- The person adopted gets the same rights as that of a biological child.
- The religion of the adoptive parents is not relevant- this is one of the most highlighted aspects of this Act.
- Single people can also adopt and adoption is irrevocable.
- While the Act covers all of India, it is only possible to adopt under this Act in areas where the Juvenile Justice Boards have been constituted. This is still an ongoing process and many states are in the process of issuing notifications for the constitution of these boards.