Adoption is a process where it allows the childless parents and parent less Or orphan child to establish bound of child and parents relationship like their own. In Adoption process , the parent less or orphan child is provided with parents, home, name and welfare of the adopted child is paramount within eyes of law and childless parents are provided with their own child.
There are some legal rules, rights, and capacity for adoption if it fulfilled then the Adoption is Valid but if fails than Adoption is Void.
In India there are three main laws made for child adoption and provide parents and child legal rights and Process for valid Adoption.
1. For Hindu, Buddhist, Jain, Sikh the law which govern for Adoption is “The Hindu Adoption and Maintenance Act, 1956”.
2. For Muslim, Parsi, Christian and Jews religion there is no personal law related to adoption but if non-Hindu parents are Interested to Adopt the child, then assisted by ” The Guardian and Ward Act of 1890”.
3. In 2010 Amendment there comes provision of Rehabilitation and social reintegration for orphan Children under “The Juvenile Justice Act of 2020” for care and protection of children.
1. Under the Hindu Adoption and Maintenance Act of 1956.
There are many criteria, required to fulfill for Valid Adoption such as who can adopt child, capacity to adopt child, who can be adopted, who can give in adoption and procedures.
A. Who can Adopt Child?
Any major and sound mind man or woman of Hindu religion can adopt Child.
B. Capacity for Adoption.
Person should be legally capable to adopt the child. Legally capable means major age and of sound mind.
C. Who can be adopted.
Any boy or girl below 15 years can be adopted but child should be unmarried.
D. Who can give child for adoption.
Only child mother and father can give their child for adoption with mutual consent? But if child parents renounced world completely then appointed Guardian can give child for adoption.
Necessary Requirement for a Valid Adoption under Hindu Adoption and Maintenance law are
i). The person who is adopting the child should be legally capable (major and sound mind)
ii). The biological parents who are giving child for adoption should be legally authorized.
iii). The child who is being adopted he/she should fulfill the criteria and legally capable for being adopted.
After the legal proceedings and fulfillment if all goes right and successful then adoption is Valid. At last, the child is physically transferred to the adopted family and under the Act the welfare of Child is paramount.
2. Under Guardian and Ward Act of 1890.
As per law there is no personal adoption law for Muslim, Christian and Parsi so if they desire to adopt child under The Guardian and Ward Act of 1890 they may proceed.
But this Act does not allow full or complete adoption. The relation between adopted child and adopter are of Ward and guardian only.
The Relation of Guardian and Ward are only till the child is minor that means when child becomes major which is age of 21 year then child Will not be Ward anymore.
Proceeding for Valid Adoption Under the Guardian and Ward Act, 1890.
i). The Person who wants to adopt child as Guardian need to fill application in the court.
ii). The filled application must provide whole information about Guardian and reason of adoption.
iii). After Application filled the court will further proceed for hearing and announce decision on basis of minor interest.
Under the Guardian and Ward Act, 1890 there is also provision of inter-country adoption.
Supreme Court held that if foreign parent want to adopt Indian child (girl or boy) than they can adopt child complete 3 year of Age.
3. Adoption Under Juvenile Justice Act of 2000.
Under this Act proper care and protection of child is considered as paramount. If biological parents cannot take care and protect the child than permanent solution is to give the child for adoption and adopted family need to complete the primary duty of protection and care of child.
And for Valid Adoption of child only the child welfare committee under the Juvenile justice Act can authorize to declare a child free for Adoption.
: Paras Diwan book on family law.
: Bare Act of Hindu Adoption and Maintenance Act 1956 and Guardian and Ward Act,1890, Juvenile justice Act 2000.