This Article is written by Himanshu Gupta, a Fourth-Year law student of CPJ College Of Higher Studies And School Of Law

INTRODUCTION

Adoption is a legal process that allows couples/ individuals to assume the parenting of a child (usually) from the biological parent(s), child welfare centers, and NGO’s. In legal adoption, all the ties of the child are cut from the biological family and all the rights/ responsibilities of that child are transferred to the adoptive family, from the date of adoption they are liable for the welfare of the child.

The legal framework of adoption laws in India is designed in a way that creates a balance between the rights of adoptive parents and the welfare of the child.[1]. These laws help the individual/ couple who are not able to/ don’t want to become a biological parent(s) to adopt a child.

Some prerequisite conditions are required to be fulfilled by the adoptive parent(s) to adopt a child legally. Once the child is adopted that child cannot go back to his/ her biological parents as all the ties with our biological family are broken during adoption.

Adoption procedure in India is designed to keep the welfare of children at utmost importance while not forgetting the rights of adoptive parents. It is checked to determine if adoptive parents are eligible to provide the child with basic amenities and a stable future.[2].

ADOPTION LAWS AND THEIR KEY PROVISIONS IN INDIA

1. HINDU ADOPTION AND MAINTAINANCE ACT, 1956 (HAMA)

Under this act, only individuals/ couples from Hindu, Jain, Sikh, and Buddhist communities can legally adopt a child. Any individual/ couple outside the above-mentioned community cannot adopt a child under this act.

KEY PROVISIONS OF THE HINDU ADOPTION AND MAINTAINANCE ACT, 1956

· Eligibility of adoptive parents

To legally adopt a child the Adoptive parent(s) should be of sound mind, Hindu, and major to be eligible to adopt a child. In cases, where the adoptive parent who wants to undertake adoption is married then he/ she has to get permission from the other partner before adopting a child. The consent is not needed if the other partner has renounced the world, and ceased to be a Hindu.

· Eligibility of adoptive child[3]

Under the provisions of this act, the first criteria for a child to be eligible for adoption is that he/ she should be less than 15 years of age and should not have been adopted early by anyone. If the customs allow then the adoptive parents can adopt a child greater than the age of 15.

In Prafulla Bala Mukherjee v. Satish Chandra Mukherjee[4], the Calcutta High Court[5] Held that a child can be either adopted by the adoptive mother herself or by any person authorized by her through a special power of attorney. All the formalities of giving and taking were performed between the natural parents of the child and the adoptive mother’s attorney. The Punjab and Haryana High Court held it to be a valid adoption.

Supreme Court also held that for a valid adoption, not only the person adopting should be capable of lawfully taking in adoption, but the person giving must be capable of lawfully giving in adoption and the person adopted must be capable of being lawfully taken in adoption.

· CONDITION FOR ADOPTION[6]

- Adoptive parents should not have a child of the same gender they want to adopt.

Example – If a couple has a boy alive at the time they want to adopt another boy, then in this situation provisions of the Hindu Adoption and Maintenance Act, 1956 won’t allow this. They are only eligible to adopt a girl child.

- There should be a minimum 21 years of age gap if an adoptive parent wants to adopt a child of the opposite gender.

Example- A male aged 28 years wants to adopt a girl child aged 10 years in this case according to the provision of the Hindu Adoption and Maintenance Act, 1956. He cannot adopt that girl child as the age gap between them is not sufficient.

PROCEDURE OF ADOPTION UNDER THE HINDU ADOPTION AND MAINTAINANCE ACT, 1956[7]

· CONSENT

The first step to adopting a child is to obtain consent for adoption from the parent(s)/ guardian of the adoptive child. It is the most basic requirement of legal adoption. Adoption without consent of the parent(s)/ guardian will be invalid.

· REGISTRATION

Once the consent is received from the biological parent(s)/ guardian of the child. The next step is to go to the sub-registrar office and get the adoption registered so it can be legally binding.

· LEGAL FORMALITIES

The adoptive parents are responsible for ensuring compliance with all the necessary legal formalities required to make the adoption legally binding.

2. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015

KEY PROVISIONS

· Eligibility of adoptive parents

Under this act, a person from any religion whether single or married is eligible to adopt a child. A single male cannot adopt a girl child according to the provisions of this act.

· Eligibility of adoptive child[8]

According to the provisions of this act, the child welfare committee (CWC) should declare the child to be free for adoption. The child can be abandoned, surrendered, or orphan. Without the declaration of the child welfare committee, any adoption done will not be considered valid.

In the Shabnam Hashmi vs. Union of India & Ors. (2014)[9], the Apex Court[10] Had indeed provided adequate relief to the petitioner which is by stating that the JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT of 2000 is a secular law. Under this Act, any person, irrespective of their religion, can adopt a child. However, there has been some criticism raised in the sense that it did not recognize the right to adopt as a fundamental right under Article 21 of the Constitution. Recognizing this right would have facilitated better access to justice, especially considering that JJ Act, 2000 may not be accessible to individuals across different communities.

PROCEDURE FOR ADOPTION UNDER JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015[11]

· REGISTRATION

The first step that adoptive parents need to undertake for legally adopting a child is to register themselves through the website of the Central Adoption Resource Authority (CARA).

· HOME STUDY

After registration on the website, a thorough check and research is done by the authorized social worker to check the suitability of parents. This is done to check whether the adoptive parents are capable of providing the child with a healthy future. It also helps in protecting the welfare of the child.

· REFERRAL

If the authorities consider the parents to be suitable and think that they can provide the adoptive child with a safe and healthy environment. The Central Adoption Resource Authority (CARA) provides referrals for children who are free to be adopted.

· ACCEPTANCE

Adoptive parents have the right to review the profiles referred to them by the central adoption resource authority and after choosing a profile they need to sign a child custody and medical examination report.

· PRE-APPLICATION FOSTER CARE

After acceptance, the child is placed in pre-adoption foster care with adoptive parents to check the suitability.

· COURT PROCEDURE[12]

The next step that the adoptive parents need to undertake is to file a petition for adoption within 30 days of selecting the child they want to adopt. It is the most necessary step as if the petition is not filed in due time then the adoption process cannot be completed without obtaining the adoption order from the court. The court will also check all the reports and documents before passing the adoption order.

· FOLLOW UP

This is the last step undertaken by the adoption agency for 2 years after the custody of the child is transferred to the adoptive parents to keep a check that the child is in safe hands and living in a healthy and safe environment.

3. GUARDIANSHIP AND WARDS ACT, 1890[13]

KEY PROVISIONS

· Under this act, there are no provisions for formal adoption instead this act provides the guardianship rights of the child are transferred to the person.

· Provisions of this act are beneficial for people who cannot adopt a child according to their laws like Muslims, Jews, Christians, and Parsis.

PROCEDURE

· APPLICATION

Any couple/ individual who wants to adopt a child under the provisions of this act needs to apply to the competent district court to appoint them as a guardian of that child.

· COURT REVIEW

After submission of the application, the court will conduct a background check and ask for different reports so that it can be ensured that the welfare of that child is not harmed and he gets a safe and healthy environment.[14]. The court also ensures that the couple/ individual demanding guardianship is competent enough to maintain the child.

· GUARDIANSHIP ORDER[15]

After the court review, if the court thinks fit can give a guardianship order keeping the welfare of a child at utmost importance. This will be the final order and custody of the child is transferred after getting this order.

CONCLUSION

Adoption laws in India are drafted to create a balance between the welfare of a child and the interest of the couple/ individual who wants to adopt that child. Several acts govern adoption and guardianship laws in India.

A child once adopted cannot be adopted again throughout his/ her lifetime. The adoptive child is eligible for the property owned by the adoptive parents. Adoptive parents should be eligible and must comply with required legal regulations.

REFERENCES

[1] meena neeraj, ‘Adoption Laws in India: Challenging Existing Law - Manupatra’ (manupatra) http://docs.manupatra.in/newsline/articles/Upload/E8EFE493-114B-4E5B-A014-682EB1729301.pdf accessed 17 September 2024

[2] ‘Adoption Laws in India’ (Legal Service India - Law, Lawyers and Legal Resources) https://www.legalserviceindia.com/legal/article-721-adoption-laws-in-india.html accessed 17 September 2024

[3] Drishti Judiciary, ‘Adoption under Hindu Law’ (Drishti Judiciary) https://www.drishtijudiciary.com/to-the-point/ttp-hindu-law/adoption-under-hindu-law accessed 17 September 2024

[4] AIR1998CAL86

[5] (Indian kanoon - search engine for Indian law) https://indiankanoon.org/ accessed 17 September 2024

[6] ‘Adoption Procedure’ (Cara) https://cara.wcd.gov.in/Parents/Eg_step_parents.html#:~:text=The%20prospective%20adoptive%20parents%20shall,as%20the%20case%20may%20be. accessed 10 September 2024

[7] ‘Vikaspedia Domains’ (Vikaspedia) https://vikaspedia.in/social-welfare/women-and-child-development/child-development-1/child-adoption/overview-of-child-adoption-process-in-india accessed 17 September 2024

[8] Kapoor V, ‘Maintenance of Children and Aged Parents under Hindu Adoption and Maintenance Act, 1956’ (iPleaders, 27 May 2024) https://blog.ipleaders.in/maintenance-of-children-and-aged-parents-under-hindu-adoption-and-maintenance-act-1956/ accessed 17 September 2024

[9] AIR 2014 SUPREME COURT 1281

[10] Garg R, ‘Shabnam Hashmi vs. Union of India & Ors. (2014)’ (iPleaders, 1 September 2024) https://blog.ipleaders.in/shabnam-hashmi-vs-union-of-india-ors-2014/ accessed 17 September 2024

[11] ‘Adoption in India’ (Adoption in India) https://www.indialawoffices.com/legal-articles/adoption-in-india accessed 10 September 2024

[12] Singh D, ‘Critical Analysis of Adoption Laws in India’ (kanoonjunction.com, 27 October 2023) https://kanoonjunction.com/critical-analysis-of-adoption-laws-in-india/ accessed 17 September 2024

[13] Chakravorty A, ‘Adoption Laws in India’ (IndiaFilings, 29 June 2020) https://www.indiafilings.com/learn/adoption-laws-in-india/ accessed 17 September 2024

[14] ‘Adoption Laws’ (Leges Juris Associates, 13 November 2021) https://www.legesjurisassociates.com/adoption-laws/ accessed 17 September 2024

[15] ‘Gjra: Global Journal for Research Analysis (GJRA)’ (World Wide Journal - GJRA) https://www.worldwidejournals.com/global-journal-for-research-analysis-GJRA/ accessed 17 September 2024