Table of Contents
“Adopting one child won’t change the world, but for that child, the world will change.”
Adoption of a child is the legal process of transferring the parental rights and duties from biological parents to adoptive parents. The concept of adoption and the laws relating to it varies in different religions
What are the Acts that govern the laws of adoption in India ?
-The Hindu Adoptions and Maintenance Act, 1956
-Guardians and Wards Act, 1890
-Juvenile Justice (Care and Protection of Children) Act, 2000
The Hindu Adoptions and Maintenance Act, 1956
According to the applicability of the act, Hindus do not only mean a person that follows Hinduism but also include other sub-religions of Hindus. Buddhism, Jainism, and Sikhism are considered to be sisters of Hindu law and hence this law applies to all of them but it does not apply to Christians, Parsi, Jew, and Muslims. It also applies to a child whose parents are Hindus or a convert from some other religion to Hinduism. So the Hindus can adopt a child with the fulfilment of certain criteria.
Who can give in adoption?
No person other than father or mother or guardian can give the child in adoption (section 9). The order of capability of giving in adoption is Father > Mother > Guardian.
Who can adopt?
-When a male or a female separately want to adopt a son, then they should not have a son living at the time of adoption. The son may be a legitimate or an illegitimate son.
-Same way, when a male or a Female Hindu wants to adopt a daughter, they should not have a daughter or son’s daughter living at the time of adoption.
-If a male wants to adopt a daughter, that male should be at least 21 years elder than the adoptive daughter.
-If a Female wants to adopt a son, she should be at least 21 years older than the son whom she is going to adopt
Apart from all of these, the person taking the child as his own must have the right and capacity to raise the child (section 7, section 8 and section 11)
Who can be adopted?
As pointed out by Hindu Adoption and Maintenance Act 1956, Section 10, a child should only be adopted according to certain conditions:
-The child ought to be Hindu.
-The child should not have been adopted previously.
-The age of the child should be under 15 years.
-The child ought not to be married
What is an adoption deed?
Adoption deed is the legal document which transfer the rights and liabilities of the biological parents to adoptive parents.
When is an adoption deed required?
An adoption deed is required to legalise the process of adoption which is in compliance with Hindu Adoption and Maintenance Act. Adoption taking place under Juvenile Justice Act, 2015 does not need a deed, only order copy is enough.
Should an adoption deed be registered?
Yes, an adoption deed must be registered to legalise it. It should be made and signed in the presence of two witnesses and then it should be registered in Sub-Registrar Office.
Section 16 of The Hindu Adoptions And Maintenance Act, 1956
‘Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.’
What are the matters that should be covered in an adoption deed?
-Details of Adoptive parents
-Details of the biological parents
-Consent of the biological parents to give the child on adoption
-Will of the adoptive parents to take the child in adoption
-Transfer of rights and liabilities over the child
-Date and place of adoption
-Signature of adoptive parents
-Signature of biological parents
-Signature of two witnesses
Is ceremony of adoption necessary?
The ceremony of giving and taking a child in adoption is necessary to make the adoption valid.
Section 11 (vi) of The Hindu Adoptions And Maintenance Act, 1956 states that
‘the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption.’
What are the documents required?
-Identity proof of both adoptive and biological parents
-Photographs of both adoptive and biological parents
-Family photo
-Medical certificate of adoptive parents and the child
-Financial statements
-In case of a single adoptive parent, a letter from relative stating that the parent will take care of the wellbeing of the child.
-In case of divorced single parent, Divorce or Legal Separation Decree
Guardians and Wards Act, 1890
The law relating to guardians and wards and the relationship between them is contained in the Guardians and Wards Act, 1890. It lays down that father’s right is a priority and no other person can be appointed when the father is fit to take care of the child. In the case of PT Chathu Chettiar vs. VKK Kanaran [AIR 1984 Ker 118], it was observed that if the father is alive and if he is not unfit in any manner as per law to be the natural guardian, and then the mother cannot claim to be the guardian of the minor.
What are the important features of Guardians and Wards Act, 1890?
-Under the Guardianship and Wards Act, the parents who adopt a child will get guardianship status, but the adopted child does not automatically get the right of inheritance.
-The guardians need to provide an investment plan for their child and also a certain amount of money in the name of the child for their future
-Under this act, the relationship between the guardian and the ward is established respectively.
-When the child turns 21 years of age, they are no longer wards and they are assumed to be individual identities.
How does it work?
A person gets guardianship when a person is appointed under the Guardianship and wards Act to make decisions on behalf of another person who cannot make decisions and who lacks the decision-making capacity due to any disability. The Guardians and Wards Act, 1890 was a law that superseded all other laws regarding the same. It was given under the act that any child who has not attained the age of 18 was considered to be a minor. So those children are to be taken care of by someone and hence the court appoints a guardian. Authority may be appointed by the court and they will decide on who would take place as the child’s guardian. The person who is willing to take care of the child under himself will make an application or may apply to act as a guardian. The application should contain all the details about the person willing to be a guardian that includes his interests as to why he/she is taking the child under their care and protection. These are the preliminary steps that have to be fulfilled.
Then the court will admit the application after a reasonable process. The court will look into the evidence produced before the court. After this process, the court decides on the case with its discretion. This act does not work according to other acts for adoption. Under this act, in case a minor has properties attached with him, then those properties can have more than one guardian. In all circumstances, the courts will give importance to the interest and welfare of the minor child. The details regarding his parent’s death, his age, and under what circumstances he requires a guardian may be analysed on a case to case basis.
Juvenile Justice (Care and Protection of Children) Act, 2000
JJ Act is a secular Act and a person of any religion can adopt under the provisions of the Act. In Shabnam Hashmi v. Union Of India & Ors case, the Supreme Court stated that
‘The Act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the personal law applicable to him. To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute.
Central Adoption Resource Authority (CARA)
CARA is a statutory body of The Ministry of Women & Child Development, Govt. of India. It is the nodal body regulating the inter and intra country adoption of Indian children.
Who can be adopted?
Only children who are legally free to be adopted, orphan, abandoned or surrendered child can be adopted through this Act
Who cannot be adopted?
Section 41(5) states that No child shall be offered for adoption-
-until two members of the Committee declare the child legally free for placement in the case of abandoned children,
-Till the two months period for reconsideration by the parent isover in the case of surrendered children
-Without the consent of the child in the case of a child who can understand and express his consent.
What are the eligibility criteria for prospective adoptive parents?
-Should be physically and mentally fit.
-Should not have any life threatening diseases.
-Should be financially stable.
-In case of married couple the consent of both the spouses for the adoption shall be required.
-The married couple should have at least two years of stable marital relationship.
-A single female can adopt a child of any gender
-A single male shall not be eligible to adopt a girl child
-The minimum age difference between the child and either of the adoptive parents should be at least twenty-five years.
– The maximum age difference between the child and the composite age of adoptive parents can be:
90 years (45 years in case of single parent) if the child is up to 4 years old
100 years (50 years in case of single parent) if the child is above 4 up to 8 years old
110 years (55 years in case of single parent) if the child is above 8 up to 18 years old
What are the documents required?
-Family photograph/ photograph of the couple or person adopting a child
-PAN Card of the prospective adoptive parents
-Proof of date of birth of the prospective adoptive parents
-Proof of residence
-Medical certificate of adoptive parents and the child
-Financial statements
-In case of a single adoptive parent, a letter from relative stating that the parent will take care of the wellbeing of the child.
-In case of divorced single parent, Divorce or Legal Separation Decree
Two reference letters from acquaintances or relatives in support of adoption.
-Consent of the older child/children in the adoptive family (if more than 5 years)
Steps to adopt a legally free child in India?
1. Registration
Prospective adoptive parents should register themselves in specialised agencies like Recognised Indian Placement Agencies (RIPA) and Special Adoption Agency (SPA)
2. Home Study and Counselling session
A social worker will be sent to the prospective adoptive parents’ home for a home study. The parents might be asked to attend counselling sessions for better understanding of parentage. The home study needs to be completed within 3 months from date of registration.
3. Referring a child
The agency will inform the interested couple when-ever there is a child ready for adoption. The agency will share the medical reports, physical examination reports and other relevant information to the couple and also allow the couple to spend time with the child
4. Acceptance of the Child
Once the parents get comfortable with the child, they have to sign a few documents to proceed with acceptance of the child.
5. Pre-adoption foster care
After signing the pre-adoption foster care undertaking, the child shall be taken in pre-adoption foster care by the adoptive parents within 10 days from the date of matching,
6. Court works – Filing, Hearing and Order
The Specialised Adoption Agency shall file an application in the court concerned, having jurisdiction over the place where the Specialised Adoption Agency is located, with relevant documents in original as specified in Schedule IX within ten working days from the date of matching of the child with the prospective adoptive parents and in case of inter-country adoption, from the date of receiving No Objection Certificate from the Authority, for obtaining the adoption order from court.
7. Follow-up of progress of adopted child
The Specialised Adoption Agency has to prepare the post-adoption follow-up report on 6 monthly basis for 2 years from the date of pre-adoption foster placement with the prospective adoptive parents.[i]
What is Inter-country adoption?
Adoption is the beautiful process of introducing a child to love and family. Love has no language or ethnicity, so why should adoption be restricted to one? Such a beautiful idea is what inter-country adoption is all about.Inter-country adoption otherwise known as transnational adoption is the process by which an individual or couple becomes the legal and permanent parent of a child who is a national of a different country.
Origin of Inter-country adoption
Post-World War II the practice of inter-country adoption became more prevalent as the world was left with many war orphans. Then the reason for inter country adoption slowly shifted towards poverty and high fertility rate in underdeveloped countries which lead to inability of biological parents to provide proper nourishment and care to their children. For these reasons there is abandonment of children on a large scale.
What are the International Conventions regarding Intercountry Adoption?
In international forum the intercountry adoption is dealt mainly by the Convention of Child Rights (CRC) and Hague Convention on the Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 also regulates transitional adoption. India is a signatory to both of them.
Convention of Child Rights (CRC) 1990
Article 21 of CRC sets the standards for adoption of a child . It gives predominant importance to the welfare of the child and makes sure that the adoption is not for any financial gain. Inter-country adoption is preferably considered when the required care cannot be found in the child’s own country.
Hague Convention
The Hague convention established two important principles regarding inter-country adoption .
Establishing of safeguards to ensure that transnational adoption is the best interest of the child.
To establish a system of cooperation between the contacting states to ensure that the safeguards are respected.
The convention demands the member countries to establish a central authority to be an authoritative source of information and point of contact in that country.
Around 90 countries are signatories to this convention. A lot of countries are not signatories of this convention. Thus, many inter-country adoptions take place outside this convention. The strictness of procedures of adoption in countries that are not signatories are comparatively lesser than that of the signatories.
International instruments other than Hague convention and CRC regarding intercountry adoption are European Convention on Adoption of Children, 1967, Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors, 1984, and the European Convention on the Exercise of Children’s Rights (ECECR)
Inter Country adoption in India
In Laxmi Kant Pandey v. Union of India, the Apex Court laid certain guidelines for governing inter-country adoption. It also suggested setting up of a central regulatory body and in pursuance of it, Central Adoption Resource Agency (CARA) was set up in 1989. This body plays an important role in laying down procedural and substantive law on inter-country and intra-country adoption.
. It can issue No Objection Certificate in all Inter-country adoptions. As per the guidelines of CARA, all Child Care Institutions (CCI) must be registered under Section-34 (3) of Juvenile Justice (Care and Protection of Children) Amendment Act, 2006. The State Government shall recognize suitable CCI’s as specialized adoption agencies under Section 41(4) of the Juvenile Justice Amendment Act, 2006 . The specialized adoption agencies can turn into agencies for inter-country adoption only after they have proper infrastructure for adoptable children and children with special needs, and have high-quality child-care services. In addition to these, they must comply with all the requirements of CARA.
The central government has eased inter-country adoptions under Hindu Adoptions and Maintenance Act (HAMA). The Women and Child Development Ministry in a notification issued has told that a NOC shall be given by CARA for Hague-Ratified countries. Previously parents who adopted their child through HAMA had to seek court’s No Objection Certificate to take their child abroad. Now, according to Adoption (Amendment) Regulations 2021, families adopting under the Act can receive a NOC from Central Adoption Resource Authority to take the child abroad[ii].
Problems with inter-country adoption
Child trafficking
One of the biggest problems in inter-country adoption is child trafficking. In many cases of inter-country adoption, the child becomes the victim of child trafficking. Especially in non-signatories of Hague convention, the procedures are less strict. They were sold using fake documents
Identity crisis
The child might eventually develop crisis if not proper care and counselling is provided. The children themselves find difference between them and the fellow members of their social groups.
Procedural issues
The parents have to complete the adoption procedure in the country where they are adopting the child from as well as their own country.
Post adoption negligence
In case of inter-country adoption, it is difficult to follow up. CARA has given guidelines to Indian diplomats, social workers and foreign accredited agencies on protecting children from post adoption negligence but it hasn’t been much of use .
Post adoption domestic succession
Though the process of adoption becomes a successful one, the child might not be a legal successor depending on the domestic laws of the country of the parents. Unfortunately, India has not entered any international treaty regarding this issue.
‘Family is not defined by our genes, it is built and maintained through love’
[i] http://cara.nic.in/parents/Guideline_RI.html
[ii] http://cara.nic.in/PDF/gazette%20notification.pdf