GUJARAT NATIONAL LAW UNIVERSITY

Family Law-I
Project on

“Adoption Laws in India”

Submitted by:

 A.S Kaushik Babu (12A001)

 Gaurav Singh (12A044)
 INDEX

 Acknowledgement

 Introduction

 Chapter 1: Adoption: Who, Why, When and How can adopt a child.

 Chapter 2: Critical Analysis of Adoption Laws in India

i. The Hindu Adoption and Maintenance Act, 1956

ii. The Guardians and Wards Act, 1890

iii. The Juvenile Justice (Care and Protection) Act of 2000, amended in 2006

 Chapter 3: Disparity in Adoption Laws

 Conclusion

 Bibliography

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 ACKNOWLEDGMENT

I would like to express my deepest appreciation to all those who provided me the possibility to
complete this paper. A special gratitude I give to, Mr. Sushil Goswami, whose contribution in
stimulating suggestions and encouragement, helped me to coordinate my project especially in
writing this analysis. He inspired me greatly to work in this project. His willingness to motivate
me contributed tremendously to my project. I would also like to thank him for showing us some
example that related to the topic of our project.

Furthermore I would also like to acknowledge with much appreciation the crucial role of the
staff of Gujarat National Law University, who gave the permission to use all required equipment
and the necessary material to complete the project.

I would like to express my love and gratitude to my beloved family members; for their
understanding & endless love, through the duration of my studies.

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INTRODUCTION

Not all people become parents by biologically conceiving a child; this doesn’t imply that they are
divested with the joys of parenthood. Therefore they adopt. Adoption is not recognized in
Mohemmedan law, 1nor is it recognized by Parsi law. It is recognized by the Hindu Law but
even in that system of law, there may be a family2, or caste3, or custom prohibiting adoption, and
if such custom is proved, effect will be given to it by the courts. During ancient civilizations
societies approved child adoption in India, though the origin of custom of adoption is lost in
antiquity. “Among the Hindus, a peculiar religious significance has attached to the son through
Brahminical influence, although in its origin the custom of adoption was perhaps purely
secular.”4 The texts of Manu include five kinds of adopted son out of which only two were
recognized. The practice of adoption can be crudely deigned as 'the admission of a stranger by
birth to the privileges of a child by a legally recognized form of affiliation.5 With the findings of
Rigveda the child adoption was done with the two major aspects one being spiritual by having a
son who would lit the funeral fire and other being having a heir 6. The custom of adoption in
ancient India was highly subjected to the male child. This practice took a new phase when kings
devoid of natural heirs adopted children to maintain their legacy. It was only till 1956 that
adoption was consider only for male child, female child were not adopted. Also inter caste
adoption was not permitted in Hindu community. Unlike Hinduism adoption is not recognized in
Islam, Christianity and Parsi Zoroastrian community. They permit guardianship with certain
conditions where the rights of the adopted child are restricted and he cannot inherit the property
or enjoy the same rights as vested in a biological child.

“Adoption comes from the heart but the adoption process comes from the law. You should
follow your heart but be sure you follow the law.”- Irina O’ Rear, Member, International
Bar Association, St. Petersburg, Russia.

1
Muhammad Allahabad v Muhammad Ismail, (1888) 10 All 289, 340
2
Fanindra v Rajeshwar, (1885) 11 Cal 463
3
Vera Bhai v Bai Hirabai, (1962) 3 SCR 641.
4
Amarendra Mansingh v. Sanatan Singh, 1933 AIR (PC) 155, this is amongst the first important cases on adoption
by privy council.
5
Article: ADOPTION LAW IN INDIA: NEED FOR A FRESH LOOK by Dr. Subhash Chandra Singh, Central
India Law Quarterly, http://indiankanoon.org/doc/966527/, last accessed on 25th September 2014, 1534 hrs
6
Part I, Adoption under Old Hindu Law, Commentary on The Hindu Adoption and Maintenance Act, 1956, 2 nd
Edition, 2010, By M.N. Srinivansan, Delhi Law House.

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With the changing scenario of the society, now adoption is a legalized process in India through
which a child’s parental rights are transferred to married couple or singles who agree to raise him
as their own child accepting all the responsibilities held against him. It is a creation of a new
permanent relationship between an adoptive parent and child. Adoption involves two critical
regulatory steps; the existing parents must relinquish the parental rights, and the adoptive parents
must accept them.7 On the other side of the coin there are many children deserted by their
parents, born out of unplanned pregnancies or their parents have died. They too deserve a healthy
childhood with all basic love and care which is only possible if they are adopted by someone.
Adoption not only nurtures the needs of a child but also complete ones family. It works for
society in every way round.

In India, currently there are three laws enforce dealing with adoption policies and process. The
legislature allows inter and intra community adoption in India, subjective to the religious policies
of one’s own religion. Apart from adoption to the Indian families our legislature recognize inter
country adoption through different guidelines brought up by the Supreme Court in the case of
L.K. Pandey vs. Union of India and Others.8The goal is to find a family for as many orphan
children as possible and to safeguard their interests as visualized in the UN Convention on Child
Rights and Hague Convention on Inter-country Adoption (both ratified by India).9

Through this paper the author looks forward to give the far reaching view of the adoption laws
governing in India, its ramification and irregularities, checks and control and conclusion drawn
out of this research.

7
Chapter 8, Adoption, Family Law Lectures, Family Law I, third edition 2011, By Prof. Kusum, Lexis Nexis
Students Series, LexisNexis, Butterworths Wadhwa Nagpur.
8
1987 AIR 232, 1987 SCR (1) 383
9
Chapter I, 1.2, Guidelines for Adoption from India-2006, Central Adoption Resource Authority, Ministry of
Women and Child Development, http://cara.nic.in/adoptionfromindia.htm#CHAPTER-I, last accessed on 22nd
September 2014, 1230hrs

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Chapter I
Adoption: Who, Why, When and How can adopt a child.

With legalization of adoption in India there are certain conditions laid down for the procedure.
As only Hindu community provides adoption with all rights of inheritance it is a coded law. For
other non Hindu communities the adoption is not codified but provided through precedence and a
general rule. In India married couples and single both can adopt children both girl and boy. Also
there is no such bar for inter community adoption. Adoption has changed considerably over the
centuries, now it’s more of family creation as compared to earlier where it was done for
inheritance. In modern times, adoption is a primary vehicle serving the needs of homeless,
neglected, abused and runaway children.10

Who may adopt a child?

 Married couples with Indian Nationality, Non Resident Indian (NRI) and Foreign
National.
 A single man or woman, who is not a minor and is either Indian National or Non
Resident Indian (NRI) or foreign national
 The adopter should be capable of taking care of the needs of the adoptive child.
 The adopter should be of sound mind.11
 A person with a living spouse can only adopt a child with his wife’s consent, unless his
wife has completely ceased to be a Hindu or is been proved insane.12
 For a man having more than one wife, consent from all wives is necessary for adopting a
child.13
 Adoption is permitted for divorcees and widows unless they are proved to be of unsound
mind.
 For a person adopting a child of opposite sex then the person should not be less than
twenty one years older to the adopted child.14
 One cannot adopt more than one child of same sex.15
10
The Encyclopedia of Child Abuse — Page 18, Robin E. Clark, Judith Freeman Clark, Christine A. Adamec - 2007
11
Sec 7, 8, HAMA
12
Ibid.
13
Proviso to Sec 7, Hindu adoption and maintenance Act, 1956
14
Section 3, 4 of Hindu Adoption and Maintenance Act, 1956

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  One cannot adopt a child of same sex as that of their natural child. Sec 11 of HAMA,
1956 states that a person can’t adopt a son/daughter if he/she already has a son/daughter.

The person to be adopted:

 Both male and female child can be adopted

 He/she should not have been already adopted.
 Generally he/she must not have completed fifteen years in age but there are customs that
allow the adoption of a person who is more than 15 years and where such custom
prevails, adoption of a child of the age of 15 or more than 15 will be valid.16But that
custom must be specifically pleaded and proved.17
 He/she should not be married at the time of adoption unless certified in the community
custom.18
 Earlier there was no provision related to the adoption of the orphans, foundling or
abandoned children19 but this set of law is obviously unsatisfactory in the modern
context. The fact of the matter is that it is the orphan whose need of the adoption greatest
so now there is provision in the HAMA, 1956 regarding the adoptions of orphans.

Who can give child for adoption?

 Father Mother or the Guardian of the child has the right to give the child for
adoption.20The expression ‘guardian’ includes both de jure and de facto guardians. When
the guardian exercises power of giving the child in adoption, prior permission of the court
is necessary.
 In case of either mother or father been proved insane or has been ceased to be Hindu,
then their counter-part has the right to give the child for adoption.
 In case of either mother or father been dead the counterpart has the right to give child for
adoption.

15
Sec 11(i),(ii) HAMA, 1956
16
Balakrishna v Sadashiv, AIR 1977 Bom 412
17
Bishan v Girish, AIR 1986 All 599
18
Maya v Jai, 1989 P & H 202
19
Paras Diwan, Adoption of an Orphan under Hindu Law (1963) XV The Law Review, 153-165
20
Sec 9, HAMA, 1956

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  Mother does not lose her right of giving the child in adoption on divorce but has to take
the permission of the court. The term ‘mother’ does not include adoptive mother or
stepmother and therefore both has no capacity to give the child in adoption.
 In case both parents of the child are dead or been proved insane, the guardian has the
right to give child for adoption with the permission of the court.

Procedure for In-Country Adoption21:

The CARA guidelines in accordance with the judgment of the Supreme Court in the Laxmikant
Pandey22 case, have created a multi-level scrutiny system composed of several authorities like
the voluntary coordinating agencies, scrutinizing agencies, etc, and armed all of them with wide
powers, thus creating a whole, complicated procedure which has to be undergone for an inter-
country adoption.23

1) A person desire for adopting a child has to register with the agency certified by the
Central Resource Adoption Authority of India.
2) Documents such as:
Application form
Certificate mentioning the reason for adoption
For couples marriage certificate
Proof of income and savings
Certificate of two other family members indicating their willingness to take care of child
in absence of adoptive parents are required for registering with the agency. The authority
can ask for certain more specific documents as required.
3) The agency provides pre adoption counseling to the adoptive parents and only after this
the application is processed.

21
As per the guidelines given by Chapter III Adoption Process of Central Adoption Resource Authority, Ministry of
Women and Child Development, Government of India. http://adoptionindia.nic.in/guideline-
family/Adoption%20Procedure.html, last accessed on 23 rd September 2014, 1533 hrs
22
1987 AIR 232, 1987 SCR (1) 383
23
Adoption Laws: Need for Reform, by S. Aarthi Anand and Prema Chandra, Economic and Political Weekly, Vol.
37, No. 38 (Sep. 21-27, 2002), pp. 3891-3893 http://www.jstor.org/stable/4412629, last accessed on 19 th September
2014, 2036 hrs.

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 4) Only those children are placed for adoptions that are certified as legally free to be
adopted by the Child Welfare Committee.
5) The agency then match the requirements of the adoptive parents that with a child and
then allow the adoptive parents to physically meet the child.
6) If the parents agree to adopt the proposed child they give their formal consent by signing
the child welfare report and medical report.
7) For child of the age of seven years or above the consent of the child is necessary.
8) In case of non acceptance the adoptive parents have to wait for three months for the next
matching of the child.
9) The child is then placed with the prospective parents under foster care. Only after foster
care the parents can legally file under the court for permanent custody.
10) After the permanent custody the post adoption services are held were authorities form the
agency visit the prospective home of the child on regular basis from two years of
adoption.
11) In cases of disruption of adoption, the Specialized Adoption Agency shall make efforts
for alternate rehabilitation of the child.

These are the basic guidelines followed during the process of adoption. These guidelines not
only serve the desire of the adoptive parents but also deeply looks into the needs and care due on
the child in their prospective home.24 The legislature intends to provide best facility and care to
each orphaned along with taking care of their rights.

24
L.K. Pandey vs. Union of India and Others, 1987 AIR 232, 1987 SCR (1) 383

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Chapter II

Critical Analysis of Adoption Laws in India

 The Hindu Adoption and Maintenance Act, 1956

Material and important alterations and modifications in the law relating to adoptions have been
brought about by legislation, embodied in the Hindu Adoption and Maintenance Act, 1956.
Overriding application has been given to this Act. Adoptions made after the commencement of
this Act must be in accordance with the provisions contained in it and any adoption made in
contravention of those provisions will be void. Validity of adoptions previously made is not
affected in any manner25. The rules in the following paragraphs of this chapter state the law
before coming into operation of this act.

He whom his father and mother give to another as his son is considered as a son given the gift
being confirmed by pouring water.26

But let no man give or accept an only son, since he must remain to raise up a progeny for the
obsequies of ancestors. Nor let a woman give or accept a son, until with the assent of lord.27

The aged parents, a virtuous wife, and an infant child must be maintained even by doing a
hundred misdeeds.28

The Hindu Adoptions and Maintenance Act have codified the law of adoption and maintenance.
The codified law has made several changes in the law of adoption equality in status is recognized
in the matter of adoption. The act provides adoption for boys as well as girls. A widow can adopt
a son or a daughter to herself in her own right under the changes circumstances, same goes for
single man or women. This act have introduced far reaching vital changes sweeping away and
cutting at the root of the old traditional and conservative notions and concepts of customary
Hindu Law.29 This act is applicable only for Hindus, Jains, Buddhists and Sikhs, under Sec 2 of

25
Satyajeet A Desai, Mulla Hindu Law, 24th ed., Lexis Nexis Butterworths Wadhwa Nagpur, Gurgaon, 2010: p 658.
26
Manu.
27
Vasistha.
28
Manu cited in Mitakshara.
29
Commentary on The Hindu Adoption and Maintenance Act, 1956, 2 nd Edition, 2010, By M.N. Srinivansan, Delhi
Law House.

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the act explains the religion of the child who is to be adopted by the prospective Hindu parents.
The act has the overriding effect and prevails over all other laws relating to Hindu maintenance
and adoption for which it has made provisions.30

The act gives significance to the giving and taking ceremonies held in one’s family during the
process were adoption is done between the family members. The performance of Datta Homan
or any other ceremony needs the presence of natural parents, adoptive parents and the
prospective child.31 For the adoption to be a valid the essential are:

o The person must be lawfully capable for adoption.

o The person giving must be in capacity to do so
o The person to be adopted should be capable of being adopted
o The adoption should have been regulated as per the other provisions of the
act.32

The act gives both male and females to adopt the child where they should be of sound mind and
has the capability of doing so. In case of adoption done by a man with his living wife the consent
of the wife is necessary unless she is renounced the world or being Hindu or declared to be
unsound33. Same is the case for woman with living husband. In cases where child is adopted by a
widow then in such cases the child belongs to the family of the deceased husband as after
marriage a woman belongs to the family of her husband and so does the adopted child. 34 A
Hindu female who is unmarried or a widow or a divorcee can also adopt a son to herself, in her
own right, provided that she has no Hindu daughter or son’s daughter living at the time of
adoption.35 If she is married she cannot adopt a son or a daughter during the lifetime of her
husband unless the husband is of unsound mind or has renounced the world.36 It is very rare of
single male adopting child, the first and foremost of single man adopting a child is the case that
of Sandip Soparkar, the well-known dance instructor, who adopted a two year old son being a

30
Essay in Classical and Modern Hindu Law, By J. Duncan M. Derrett, Volume I, Dharmashastra and Related
Ideas, TUTA SUB AEGIDE E. J.Briell 1976
31
Kashinath Rai V Mahadeo Rao, A.I.R. 1997, Pat.199
32
Sec 6, The Hindu Adoption and Maintenance Act, 1956
33
Siddaramappa v Smt. Gouravva, AIR 2004 Kant. 320.
34
Sawan Ram v Mst. Kalawanti, A.I.R. 1967 SC 1761
35
Sec 8, commentary(i), Capacity if female Hindu to adopt, The Hindu Adoption and Maintenance Act, 1956
36
Ghisalla v Dhapubai, AIR 2011 SC 644

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single unmarried parent. Sec 9 and 10 gives the fundamental of person capable of giving
adoption and person who may be adopted.

The adoption being the legalized process its effect counts from all the ties of the natural family
of the adopted child to be ceased right after the adoption as now he/she belongs to the adopted
family.37 The adopted child has all the rights vested as that of a natural child including the right
to inherit the property. Under Sec 14 of the act, for single man adopting a child after his marriage
his wife deems to be the mother of the adopted child, similar is the law for unmarried woman.
Also for man with more than one wife, the senior most deems to be the mother and rest as step
mothers. Once a valid adoption is done it cannot be cancelled by either parents or guardians or
by the child deserting his adopted parents, Sec 15. With a view to prevent trafficking of children
Sec 17 makes it mandatory to not to receive any payments with regard to adoption. Doing so is
punishable under law38.

 The Guardians and Wards Act, 1890

In India, adoption has been recognized for centuries, but being a part of personal laws, there is no
uniformity among the different communities. The variation range from treating an adopted child
exactly like a natural born child to not recognizing the status of adoption at all.39 Apart from
Hindus, who have a separate codified law, for other communities there is The Guardians and
Wards Act, 1890. This is a secular law for appointment and declaration of guardians and allied
matter, irrespective of caste, community or religion, though in certain matters the court will give
consideration to the personal laws of the parties.40 The act was passed with the intention to place
the persons and property of all minors with their guardians and giving guardians a larger power
with respect to providing education and basic care and facility to the minor, rendering accounts,
and forbidding them to sell or mortgage the minor’s immovable property without an order of the

37
Sec 12, Effects of Adoption, The Hindu Adoption and Maintenance Act, 1956
38
Sec 17, Prohibition of certain payments- contravening the provisions of the section leads to imprisonment upto six
months or fine or both
39
Family Law Lectures, Family Law I, 3rd edition 2011, By Prof. Kusum, Lexis Nexis Students Series, LexisNexis,
Butterworths Wadhwa Nagpur.
40
Chapter 7, Guardianship and Custody, Family Law Lectures, Family Law I, third edition 2011, By Prof. Kusum,
Lexis Nexis Students Series, LexisNexis, Butterworths Wadhwa Nagpur.

12 | P a g e
court.41 The Non Hindus (Muslims, Christians, Parsis and Jews) under the foresaid act can take
the custody of a minor (person under the age of 18) with the intention to provide welfare in the
interest of the minor. The guardian is entrusted with the custody of the minor and his property.
The guardianship cannot be treated as adoption as it is just as the custody of foster homes. The
minor once attains the majority is free to break the ties of custody. The rights of the minor in
such cases is not as that of the natural born child or adopted child. The child cannot take the
name of the guardians or inherit their property.

The Hindu Minority and Guardianship Act, 1956 provides with the codified law for minor
Hindus. Both in case of Hindus and Non Hindus the foremost right of guardianship is that of the
father. The Supreme Court interpreted that under Sec 19(b) of The Guardians and Wards Act,
1890 and Sec 6(a) of The Hindu Minority and Guardianship Act, 1956- if the father is not in
charge of the actual affairs of the minor, either because of his indifference, nor by virtue of
mutual understanding between the parents, or because of some mental or physical in capacity, or
because he is staying away from the place where the mother and the minor are living, then, in all
such situations, the father can be considered as “absent” under the provisions of above
mentioned statutes, and the mother, who in any case is the recognized natural guardian, can act
validly on behalf of the minor as guardian.42 The legislative intention is to keep the welfare of
the minor paramount.

For Muslims, under Shia law, the Hizanat i.e. the mother’s right to the custody of her minor’s
extend until a son is two year old and daughter seven years old.43 The Hanafi law gives a prolong
right to mother for the custody of minor son till the age of seven years and for daughter till she
attains puberty.44 This rule is not absolute and is subjective to the well being of the child, as
children cannot be treated as chattel or property, over whom legal rights should be asserted. For
Christians, Parsis and Jews too doesn’t recognize adoption and therefore the Guardians and

41
Introduction, Commentary on the Guardians and Wards Act, 1890, By K.R. Ramaswami Iyenger, 2 nd Edn, 2010,
Delhi Law House.
42
In case of Githa Hariharan v Reserve bank of India, AIR 1999 SC1149 where the petitioner was denied as the
guardian of the minor for investment purpose where it was contended that during the lifetime of father mother can’t
be regarded as guardian.
Chapter 7, Guardianship and Custody, Family Law Lectures, Family Law I, third edition 2011, By Prof. Kusum,
Lexis Nexis Students Series, LexisNexis, Butterworths Wadhwa Nagpur.
43
Mulla, Principles of Mahomedan Law, by M. Hidayatullah, 19 th Edition, 2009, LexisNexis Butterworth Wadhwa,
Nagpur.
44
ibid

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Wards Act is the sole codified secular law which enables the singles and couples from these
communities to have a guardianship of a ward. There had been a demand for uniform law for
adoption but is been struck down on the grounds of religious moralities.

 The Juvenile Justice (Care and Protection) Act of 2000, amended in 2006

In most of the cases the orphans and deserted children end up conflicting with the laws. The
Juvenile Justice system works for the rehabilitation of such children ensuring prevention and
treatment of juvenile delinquency, while providing a framework for the protection, treatment
and reclamation of children.45 The object of the act is to provide same rights and liberty to such
children as that of adopted children. Unlike The Hindu Adoption and Maintenance Act, 1956
Juvenile justice act delinks the process from the religious following and bring everyone equal
under the said law. The act permits adoption of children under the age of 18 years as the juvenile.
The Amendment Act of 2006 provided various progressive legislation being adoption as one of
them. The general principles of the act include providing education and basic needs of the child
temporarily or permanently deprived of his or her family.46 Sec 2(a(ia)) states “Adoption” as
means taking custody and responsibility permanently of a child covered by this Act, who will
have all the rights and privileges of a natural born child. Thus giving the child the right to follow
the religion of his adopted parents and succeed their property. Through this act any Indian citizen
married, single, divorcee or widow; irrespective of caste creed or religion can adopt a child who
is legally free for adoption. The process of adoption takes place as per the CARA guidelines.
Also the child adopted through such agency should not be deprived of their name, identity or
nationality unless and until is renamed by the adoptive parents or nationality being transferred.

Sec 54 raises the primary aim of adoption as to provide the child who cannot be cared for by his
or her own parents with a permanent family. The adoption should be done in the best interest of
the child and in case of siblings; they should be placed in same family or foster home. The act is
being in question in time and again, recent being the case where exemplary punishments were

45
Juvenile Justice: An Indian Scenario, By Sunil K. Bhattacharya, 2000 Edn. Regency Publications, new Delhi
46
Adoption vis-a-via Juvenile Justice act, Hindu law, Family Law Lectures, Family Law I, third edition 2011, By
Prof. Kusum, Lexis Nexis Students Series, LexisNexis, Butterworths Wadhwa Nagpur.

14 | P a g e
demanded for children (under the age of 18) committing heinous crimes like rape and murder
and are exempted from the laws considering them as juveniles.47

Chapter III

Disparity in Adoption Laws:

1,000 families in the capital waits for the happiness reaching doorstep while more than 30 lakhs
children waits for their future to arrive. This discrepancy can be well explained by the number of
inter country adoption as compared to in country adoption. Every year hundreds of childless
couples mostly from Europe and US ventures India to adopt Indian children. Though adoption
being legalized in India, the law surely doesn’t operate for poor families where 40 lakhs Indian
rupee paid in exchange of their child makes much more sense. For developing, populous and
poverty stricken countries like India selling away child for some lakhs is surely a great deal as
compared to find a daily wages employment not sufficing ones need.48

The extensive distortion over adoption which turned up nearly two decades ago in Lakhsmi Kant
Pandey's case still fails to accomplish the intended task. The setting up of Central Adoption
Resource Authority (CARA), the paramount body to govern in country and inter country
adoptions under Union Women and Child Development Ministry, turns a blind eye even though
it claims all rules are being enforced.49 By an estimate, about 600 to 800 Indian children are
adopted by foreigners every year despite allegations that these children are often abused after
adoption and that large-scale rackets fraudulently obtain consent from parents whose children are
taken away.50 The dearth of codified law for international adoption has led our people to settle
for things like selling away their own blood for couple of lakhs money. This has lead to the vast

47
Article: Should Juvenile Justice Act be Amended?, By Mohamed Imranullah, published 5 th Sept 2013, Madurai,
The Hindu.
48
Adoption Laws: Need for Reform, by S. Aarthi Anand and Prema Chandra, Economic and Political Weekly, Vol.
37, No. 38 (Sep. 21-27, 2002), pp. 3891-3893 http://www.jstor.org/stable/4412629, last accessed on 15 th September
2014, 1445 hrs
49
Article: 1,000 Indian families in queue to adopt a child, By Kira Spucys-Tahar : New Delhi,
http://archive.indianexpress.com/news/1000-delhi-families-in-queue-to-adopt-a-child/1076125/ last accessed on 25th
September 2014, 2108 hrs
50
Article: NGOs take on 'massive adoption racket': Foreigners are easily buying babies as Indian couples languish
on the waiting list, by By HARISH V NAIR.

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infant trafficking racket flourishing all over the country. The racket is huge and profitable. For
brokers regularly brush through villages looking for poverty stricken families with infants; they
accord with the families for couple of thousands rupees to give away their child.51 More sordid is
that often foetuses are 'booked' and brokers pay an advance for the nourishment of the pregnant
women and in turn, they earn a hefty commission of around Rs. 20,000 while the agencies
reportedly charge $ 3,000-5,00D for every child bought and shipped to other countries.52
NGOs like Advait Foundation and Sakhee launched a PIL demanding ban on foreigners adopting
children as they contend that post adoption children are facing abuse and are being kidnapped by
fabricating the legalized process. In India there no secular uniform codified law governing
adoption. The attempt of the legislature to come up with the uniform code is struck down time
and again to the subject of religious morality. Apart from Hindus rest all communities depend
upon the guardianship statutes for meeting their wishes of adoption. The Muslims, Parsis and
Jews can only have a lawful guardianship of a minor but cannot adopt, no inheritance right,
therefore people do not adopt. In the patriarchal society like ours Hindus mostly adopt male child
for more of religious and spiritual purpose, yet again slaying the object of the law. The report of
CARA shows that the children in most of the agencies working for adoption come from single
mothers who destitute their child for the sake of society and reputation. It’s the duty of agencies
to find suitable parents for the child within country and also outside the country. The U.N.
Commission on Human Rights drafted the convention on the Rights of the Child, which was
subsequently adopted by the General Assembly also recognizes that childhood is entitled to
special care and assistance.53 Likewise Indian Constitution under Article 15(3) and Article 24
provides state with powers to protect women and child along with prohibiting child labour in the
country. To the most decisive right provided under the constitution under Article 21- right to life,
facilitates the development of each orphan with respect to health, education, dignity, freedom
and infancy childhood.

51
Article: International Adoption’s trafficking problems, by Gina Kim, Harward Political Review,
http://harvardpolitics.com/world/international-adoptions-trafficking-problem/, last accessed on 15th September 2014,
2056 hrs
52
Economic and Political Weekly, May 5-11,2001, p. 1489
Article: ADOPTION LAW IN INDIA: NEED FOR A FRESH LOOK by Dr. Subhash Chandra Singh, Central India
Law Quarterly, http://indiankanoon.org/doc/966527/, last accessed on 26th September 2014, 1534 hrs

53
Supra 35

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Despite national and international commitments, the lives of children in the third world countries
are more deplorable; most third world children suffer "because of their country's lack of
resources for development as well as pronounced inequalities in the way available resources are
distributed" and they have a situation of absolute material deprivation.54 It is the time for India to
come out of the cocoon of disparities and come up with more stringent laws governing adoption
and guardianship of minors. Though a uniform civil code remains a difficulty but it’s time to
reevaluate our laws for good.

54
Ibid

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 Conclusion

Whether in slums or in orphan houses children suffer, the agony of not being loved, surviving
without basic amenities and even after adoption abused by many- the status of adoption laws in
India are still in clenched with the ancient dogma. Despite the statutory and constitutional
provisions problems like child abuse and child trafficking are hard to tackle with. On the other
hand the couples and single in desire to adopt a child are often jolted in the never ending saga of
hefty procedure and incompetency of the laws. The frail laws and cumbersome conduct often
leads one to go through illegal means. The inability of the existing groundwork and dearth of
Uniform Civil Code makes it further very complicated to deal with. The childless indigent
couples often fail to adopt child due to absence of pertinent statutory provision.
The failure of the Hindu Adoption laws to give symmetrical rights to women in case of adoption,
while receiving and giving adoption is violative of the right to equality under the Indian
Constitution. The absence of provision in relation to the revocation of adoption, limiting the
number of adoption and not taking the consent of the adoptee during adoption is aberrant and
bizarre. The provision in the personal for Muslims, Paris, Jews and Christians for not permitting
adoption leaves the childless and desirable people in mournful state. The policy of guardianship
doesn’t fulfill the purpose as guardianship gives restricted legal rights over the person but natural
rights can only spring through the adoption. In the process of guardianship the natural rights are
not transferred and therefore people dodge from such relations.
Very recently the Apex Court worked through this problem and gave a green signal for a Muslim
couple to adopt a child needless to what their personal law permits. The SC bench said the right
to adoption is conferred by a law and operation of this cannot be stultified by a personal law
dictate.55 The great move by the Apex Court to pierce through the veil of traditional law which is
not only discriminatory but also capricious is a way to the start of a new era. The shift in mindset
of the people that adoption is more than traditionally bringing in the child- to provide a home for
homeless is taking a new flight. The stable loving homes, caring parents, fulfilled needs of the
indigent people is what the law should conclude to. This is the need of hour and also the needs of
thousands of childless couples and millions of orphans. Though The Supreme Court is working

55
Article: Supreme Court gives Muslims Right to Adopt, reported by Dhananjay Mahapatra, 19 th Feb, 2014, The
Times of India, (The SC judgment comes on an 8 years old petition by Shabnam Hashmi who had approached the
apex court after being refused permission to adopt. ) http://timesofindia.indiatimes.com/india/Supreme-Court-gives-
Muslims-right-to-adopt-a-child/articleshow/30662143.cms?utm_source=facebook&utm_medium=referral, last
accessed on 25th September 2014, 1957 hrs.

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out to help the needy orphans and there are now legislations in this regard but we know a general
saying that Laws are meant to be broken. This certainly hails true for adoption legislature in
India. Presently it is reported that to avoid hefty procedures couples draw themselves into illegal
adoption which in later is resulting into child trafficking. The other problems faced are the long
wait listed Indian couples for adoption while foreigners given preference in the list due to heavy
amount paid by them. These are some difficulties which needs attention.

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 Bibliography

Statutes and Guidelines:

 The Hindu Adoption and Maintenance Act, 1956 (Act No.78 of 1956)

 The Guardians and Wards Act, 1890 (Act No. 8 of 1890)

 The Juvenile Justice (Care and Protection) Act of 2000, (Act No. 56 of 2000),
amended in 2006

 The Hindu Minority and Guardianship Act, 1956 (Act No.32 of 1956)

 GUIDELINES FOR ADOPTION FROM INDIA – 2006, CENTRAL

ADOPTION RESOURCE AUTHORITY, by Ministry of Women and Child
Development. http://cara.nic.in/adoptionfromindia.htm

 Child Adoption Resource Information and Guidance System (CARINGS) by

Central Adoption Resource Authority, Ministry of Women and Child
Development Government of India
http://www.adoptionindia.nic.in/parents/Guidelines-for-Adoption.html

Cases:

 Amarendra Mansingh vs. Sanatan Singh, 1933 AIR (PC)155

 Kashinath Rai vs. Mahadeo Rao, A.I.R. 1997, Pat.199
 Siddaramappa vs. Smt. Gouravva, AIR 2004 Kant. 320.
 Sawan Ram vs. Mst. Kalawanti, A.I.R. 1967 SC 1761
 Ghisalla vs. Dhapubai, AIR 2011 SC 644
 L.K. Pandey vs. Union of India and Others, 1987 AIR 232, 1987 SCR (1) 383
 Githa Hariharan vs. Reserve Bank of India, AIR 1999 SC1149
 Muhammad Allahabad v Muhammad Ismail, (1888) 10 All 289, 340
 Fanindra v Rajeshwar, (1885) 11 Cal 463
 Vera Bhai v Bai Hirabai, (1962) 3 SCR 641
 Balakrishna v Sadashiv, AIR 1977 Bom 412
 Bishan v Girish, AIR 1986 All 599

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  Maya v Jai, 1989 P & H 202

Books:

 Commentary on The Hindu Adoption and Maintenance Act, 1956, 2nd Edition,
2010, By M.N. Srinivansan, Delhi Law House.
 Commentary on the Guardians and Wards Act, 1890, By K.R. Ramaswami
Iyenger, 2nd Edn, 2010, Delhi Law House.
 Juvenile Justice: An Indian Scenario, By Sunil K. Bhattacharya, 2000 Edn.
Regency Publications, New Delhi
 Mulla, Principles of Mahomedan Law, by M. Hidayatullah, 19th Edition, 2009,
LexisNexis Butterworth Wadhwa, Nagpur
 Laws of Adoption in Ancient India; A Study on Economic Status, by Chakraborti
Dipanwita (banerjee), Publisher: Rajat Publications (2003)
 Family Law Lectures, Family Law I, third edition 2011, By Prof. Kusum, Lexis
Nexis Students Series, LexisNexis, Butterworths Wadhwa, Nagpur.
 The Encyclopedia of Child Abuse — Page 18, Robin E. Clark, Judith Freeman
Clark, Christine A. Adamec – 2007
 Essay in Classical and Modern Hindu Law, By J. Duncan M. Derrett, Volume I,
Dharmashastra and Related Ideas, TUTA SUB AEGIDE E. J.Briell 1976
 Paras Diwan, Adoption of an Orphan under Hindu Law (1963) XV The Law
Review
 Satyajeet A Desai, Mulla Hindu Law, 24th ed., Lexis Nexis Butterworths Wadhwa
Nagpur, Gurgaon, 2010

Articles:

 Adoption Laws: Need for Reform, by S. Aarthi Anand and Prema Chandra,
Economic and Political Weekly, Vol. 37, No. 38 (Sep. 21-27, 2002), pp. 3891-
3893 http://www.jstor.org/stable/4412629

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 Article: ADOPTION LAW IN INDIA: NEED FOR A FRESH LOOK by Dr.
Subhash Chandra Singh, Central India Law Quarterly,
http://indiankanoon.org/doc/966527/
 Article: NGOs take on 'massive adoption racket': Foreigners are easily buying
babies as Indian couples languish on the waiting list, by By HARISH V NAIR
PUBLISHED: 00:11 GMT, 9 February 2014
http://www.dailymail.co.uk/indiahome/indianews/article-2554843/Lawyers-blast-
massive-adoption-racket-Foreigners-easily-buying-babies-Indian-couples-languish-
waiting-list.html#ixzz2swJuhKx2
 Article: International Adoption’s trafficking problems, by Gina Kim, Harward
Political Review, June 20, 2012 12:52 am,
http://harvardpolitics.com/world/international-adoptions-trafficking-problem/
 Article: Should Juvenile Justice Act be Amended?, By Mohamed Imranullah,
published 5th Sept 2013, Madurai, The Hindu.
http://www.thehindu.com/news/cities/Madurai/should-the-juvenile-justice-act-be-
amended/article5095898.ece
 Article: 1,000 Indian families in queue to adopt a child, By Kira Spucys-Tahar :
New Delhi, Tue Feb 19 2013, http://archive.indianexpress.com/news/1000-delhi-
families-in-queue-to-adopt-a-child/1076125/
 Article: Supreme Court gives Muslims Right to Adopt, reported by Dhananjay
Mahapatra, 19th Feb, 2014, The Times of India,
http://timesofindia.indiatimes.com/india/Supreme-Court-gives-Muslims-right-to-
adoptachild/articleshow/30662143.cms?utm_source=facebook&utm_medium=ref
erral

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