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THE TAMIL NADU Dr.

AMBEDKAR LAW UNIVERSITY


Dr. AMBEDKAR GOVERNMENT LAW COLLEGE,
CHENNAI

LAW AND SOCIAL


TRANSFORMATION IN INDIA

PROJECT
ON

ADOPTION IN INDIA

Submitted by

KALAIVANI.D
PD17008
I YEAR LL.M.
(PROPERTY LAW)
INTRODUCTION
Though adoption is an age old practice, adoption laws have come into being only very
recently, with England passing the first laws in the year 1926. A legal framework was
established so as to protect the rights of the adopted child. In India, adoption falls under the
ambit of personal laws, and due to the incidence of diverse religions practiced in our country,
mainly two different laws operate. Muslims, Christians, Parsis and Jews are governed by the
Guardians and Wards Act, 1890, as formal adoption is not allowed in these religions. Hindus,
Sikhs, Buddhists and Jains on the other hand follow the Hindu Adoption and Maintenance
Act, 1956. This study focuses on the various adoption laws in India and emphasizes on the
need for a uniform civil code of adoption, instead of discriminating on the grounds of
religion.

Children are considered as bundle of joy and on whom the future of the country
depends. While on one hand children born in India are being pampered, taken care of and
given all the necessities for their all-round development, on the other hand there are over
60,000 children being abandoned per year in India.1 In some cases, these children become
victims of human trafficking and sexual violence. In fortunate cases, the abandoned children
are taken to any adoption agency and may hope for a better life while waiting to get adopted.
Such cases, of children being given a chance at a second life through adoption are on the rise.
In its simplest of senses, adoption is a process whereby a person assumes the parenting for
another and, in doing so, permanently transfers all rights and responsibilities, along with
filiations, from the biological parent or parents.

This paper on the Adoption Laws will trace the adoption practices in English law. A
brief description will be given about the history of adoption and its development to the
modern adoption laws as we know now. Apart from this, the areas where adoption is
discussed under many other jurisdictions is touched upon. Finally, the legal framework
governing adoption laws in India are extensively discussed. A comparison is made among the
differences cited in the adoption laws for different religions in India. The paper then
discusses about the need for uniform civil code regarding adoption. Lastly, this paper ends
with a short note on inter-country adoption.

1
Over 60,000 Children Abandoned Each Year in India: Report, International Business Times, India
“There are no unwanted children, just unfound families.”

Adoption has always been a sacred act performed by the humans. As per
the Merriam-Webster legal dictionary legal adoption means “to take voluntarily (a child
of other parents) as one’s own child especially in compliance with formal legal
procedures”.

Adoption can be legal as well as illegal. Under Indian law adoption is legal coalition
between the party willing for adoption and a child; it forms the subject matter of ‘personal
law’ where Hindu, Buddhist, Jains or Sikh by religion can make a legal adoption. In India
there is no separate adoption law for Muslims, Christians and Parsis, so they have to
approach court under the Guardians and Wards Act, 1890 for legal adoption. As we
mentioned above that in India only legal adoption is recognized and valid, so firstly we have
to understand that “what is legal adoption”?

According to section 2(aa) of the Juvenile Justice (Care and Protection of Children)
Amendment Act, 2006, “adoption means the process through which the adopted child is
permanently separated from his biological parent and becomes the legitimate child of his
adoptive parents with all right, privileges and responsibility that are attached to the
relationship”.2

ADOPTION UNDER ENGLISH LAW

The English Law started recognizing adoption during the latter half of the nineteenth
century. Legal adoption came into existence only during 1926. The purpose of this Adoption
Act was to prevent the biological parents from claiming back their children. A more
comprehensive Act was passed in 1950. This Act was modified in the year 1958. English law
of adoption is very similar to the Hindu Law of Adoption inasmuch as that it lays down that
the adopted child, for all intents and purposes, becomes like a natural child and the child’s
ties with his natural family are severed.

2
Section 2(aa) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006,
MODERN ADOPTION LAWS
The history of adoption traces back to ancient times. Examples of Moses being
adopted and the adoption of King Octavian Augustus. Modern adoption laws came into
existence only after the First World War. The main reasons were the influenza epidemic and
the aftermath of WW I. Many kids were abandoned by their parents, others were separated
from their biological families. The confusion and chaos caused due to the War influenced
many countries to enact new legislations or modify previously existing laws on adoption.

The first adoption laws were passed by England and Wales. It was the Adoption of
Children Act, 1926. Until that date adoption had not been recognized as a legal concept. This
law required the consent of both the biological parents and that of the adoptive parents.
Although the Act recognized that adopted children benefited from the same rights, duties,
liabilities and obligations as a birth child, it did not ensure the child’s full integration into the
adoptive family, nor were inheritance rights replaced in the birth family. A large number of
countries enacted new adoption laws in the aftermath of the World War II. Several
amendments were made to earlier legislations during 1940 – 1980. A number of countries
also modified existing legislation on adoptions to allow for new form of adoption.3

WHO ARE THE ONES WHO GENERALLY ADOPT A CHILD?

Married couples who have not had a child of their own, due to various reasons, who
now want to go in for adoption. Married couples who have their biological child/children and
yet desire to expand their family through adoption. Many couples these days want to remain
childless by choice, go in for adoption, regardless of their fertility factor, to give a loving and
caring home to a child in need. Those who are not married, but are desirous of mothering or
fathering a child can also adopt. Previously single men were barred from adopting a child, but
now it is allowed.

In India, an Indian whether he is married or single, Non-Resident Indian (NRI), or a


person belonging to any nationality (foreigner) may adopt a child. The guidelines and
documentation process for each group of adoptive parents may differ.

3
“Child Adoption: Trends and Policies”, Department of Economic and Social Affairs, UN, New York (2009)
Under THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 following
category of people can make adoptions:

 “Any male Hindu (including Buddhist, Jain or Sikh by religion) who is of


sound mind, not a minor and is eligible to adopt a son or a daughter”. But if such male has
living spouse at a time of adoption then he can adopt a child only with consent of his wife
(unless she has been declared incompetent to give her consent by the court).
 “Any female Hindu (including Buddhist, Jaina or Sikh by religion) who is not
married, or if married, whose husband is not alive or her marriage has been dissolved or her
husband has been declared incompetent by the court has the capacity to take a son or
daughter in adoption”.

CONDITIONS FOR ADOPTION BY HINDU COUPLES OR SINGLE PARENT

1. “In case of adoption of a son by any Hindu male or female, there should not be
any living son in the succeeding three generation of the party (whether by legitimate blood
relationship or by adoption) at the time of adoption.
2. In case of adoption of a daughter by any Hindu male or female, they should
not have any daughter or son’s daughter at the time of adoption.
3. Where there is an adoption of a daughter by a male then the adoptive father
should be at least twenty-one years older than the child.
4. Where there is an adoption of a son by a female than the adoptive mother
should be at least twenty-one years older than the child”.

Personal laws of Muslim, Christian, Parsis and Jews do not recognise complete
adoption so if a person belonging to such religion has a desire to adopt a child can take the
guardianship of a child under section 8 of the Guardians and Wards Act, 1890.

This statute only makes a child a ward, not an adoptive child. According to this
statute, the movement child turns to the age of 21, he is no longer consider as a ward and
treated as individual identity.
In “Mohammed Allahadad Khan v. Muhammad Ismail” it was held that there is
nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System.
Acknowledgement of paternity under Muslim Law is the nearest approach to adoption.

However, an adoption can take place from an orphanage by obtaining permission


from the court under Guardians and Wards Act. Christians can take a child in adoption under
the Guardians and Wards Act, 1890 only under foster care. Once a child under foster care
becomes major, he is free to break away all his connections from his adoptive parents.

INTERCOUNTRY ADOPTION: In India, there is no separate act that governs


adoption by foreign citizens or NRIs but it is covered under Guidelines Governing Adoption
of Children, 2015. Under these guidelines misuse or illegal use of the children through
adoption is prevented. As per the Supreme Court Guidelines for intercountry adoption a
foreign parent can adopt an Indian child before he/she completes the age of 3 years. In the
absence of any concrete Act on intercountry adoption, the provisions of Guardians and Wards
Act, 1890 will be followed for adoption.

In case of adoption of abandoned, abused and surrendered children all intercountry


adoptions shall be done only as per the provisions THE JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN) ACT, 2015 and the adoption regulations framed by the
Authority.

GUARDIANS AND WARDS ACT, 1890 remains silent about the adoption of
orphans, abandoned and surrendered children. Chapter VIII of the Juvenile Justice (Care and
Protection of Children) Act, 2015 deals with adoption in such category of the child. Section
58 of this Act defines that any Indian citizen of India, irrespective of their religion, if
interested to adopt an orphan or abandoned or surrendered child, may apply for the same to a
Specialized Adoption Agency, in the manner as provided in the adoption regulations framed
by the Authority.

Section 57 of this Act deals with Eligibility of prospective adoptive parents. As per
this Section, the adoptive parents should be physically fit, financially sound, mentally alert
and highly motivated to adopt a child for providing a good upbringing to him and both
partners must consent for the adoption. A single or divorced person can also adopt in
accordance with the provisions of adoption regulations framed by the Authority but a single
male is not allowed to adopt a girl child.

WHO CAN BE ADOPTED?

As per the Hindu law following child may be adopted namely-

 The child can either be a girl or a boy if he/she is a Hindu.


 He/ She has not been adopted before.
 The age of the child is below 15 years.
 The child should not be married.

As per the Guardianship law and The Juvenile Justice (Care and protection of children) ACT,
2015 following child may be adopted namely-

 Who is not a Hindu?


 Who is minor (not completed the age of 18 years).
 An orphan or abandoned or surrendered child.

NECESSARY PROCEDURE FOR A VALID ADOPTION

 Under The Hindu Adoption and Maintenance Act, 1956 the party willing for
adoption can make application to Child Welfare Agency. Registration can be done either
an Adoption Coordinating Agency (ACA) found in each state’s capital city, or an agency
certified by the Central Adoption Resource Authority (CARA) in New Delhi.
 After this, the agency conducts a preliminary interview with the adopting
couple in order to understand their intention and motivation behind adoption.
 Once the party decides which child are they going to adopt they file the
petition at the court of apt jurisdiction, where court hearing takes place regarding adoption
(the court is required to dispose the adoption case within 2 months).
 Once the Court issues the decree, the adoption is finalized.
Under The Guardianship and Wards Act, 1890 the party seeking guardianship has
to file application to the Court where they provide complete information on them, reasons
behind to become guardian of a child and other information asked in the application. After
admitting the application, the court will set the date of hearing where it will hear and view
evidence, requirements and considering the interests of a minor, then court will decide
whether the guardianship of a minor should be given to such party or not.

There is a directive that adoption proceedings have to be completed within two


hearings, and the petition has to be disposed of within two months of the filing of the petition.
The certified copy of the order has to be obtained by the agency within 10 days. The agency
must also obtain the birth certificate of the child, with the names of the adoptive parents.

OTHER ASPECT OF ADOPTION

PROCESS OF ADOPTION

Adopting a child in India is a long process. Earlier, parents who wished to adopt would go to
the nearest agency and register. The agency would match preferences of the couple with the
children available. The match may or may not happen, and would take months, even years.
Now, all adoption agencies have to upload details and the Central Adoption Resource
Authority (CARA) software will match preferences across the country. This has lessened the
duration of an adoption.

1. Under Hindu Adoption and Maintenance Act,1956 a child who has completed
the age of fifteen years shall not be given in adoption unless there is a custom or usage
applicable to the parties who is willing to make an adoption which permits them to adopt a
child above the age of fifteen years.
2. Under The Guardians and Wards Act any child who had not completed 18
years of age can be adopted.
3. An adoptive parent is allowed to ask for a child, as per their preferences. For
example a parent may ask for a child of a certain age, gender (if it is the first child in the
family), skin colour, religion, special features, health condition, etc. However, greater the
specifications, more difficult it is to find a child who conforms to them.
4. Since India has an overpopulation problem, with so many unwanted children,
there are various options for the adoptive parents. Depending on the adoptive parent’s desired
details, children are scrutinised to find a suitable match. When a child with the desired
characteristics is found, she is shown to the prospective parents. In case the parents are
unhappy with the selection, about two more children with the same characteristics may be
presented to the parents.

CAN A PERSON ADOPT A CHILD IF HE ALREADY HAS A CHILD?

Yes. The gender of the child becomes a factor here. The Hindu Adoption and Maintenance
Act, 1956 (HAMA, under which Hindus, Jains, Sikhs, Buddhists and Arya Samaj adopt)
allows only to adopt a child of the opposite gender to the adoptive parent which they already
have. There is no such problem under the other 2 adoption laws, namely the Guardians and
Wards Act, 1890 and the Juvenile Justice Act, 2015 which has enabled many Indians to adopt
a child of the same gender.

IS THERE A MINIMUM INCOME NEEDED FOR ADOPTING A


CHILD?

As per CARA, couples must have a minimum average monthly income of Rs. 3000.
Lower income may be considered considering other assets and support systems e.g. one’s
own house etc.

ADOPTION IN INDIA

The custom and practice of adoption in India dates back to the ancient times.
Although the act of adoption remains the same, the objective with which this act is carried
out has differed. It usually ranged from the humanitarian motive of caring and bringing up a
neglected or destitute child, to a natural desire for a kid as an object of affection, a caretaker
in old age, and an heir after death.4 But since adoption comes under the ambit of personal
laws, there has not been a scope in the Indian scenario to incorporate a uniform law among

4
Kusum, Family Law Lectures – Family Law I, Lexis Nexis Butterworths, Wadhwa, Nagpur (2ndedn., 2008)
the different communities which consist of this melting pot. Hence, this law is governed by
various personal laws of different religions.

Adoption is not permitted in the personal laws of Muslims, Christians, Parsis and
Jews in India. Hence they usually opt for guardianship of a child through the Guardians and
Wards Act, 1890. Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to
formally adopt a child. The adoption is under the Hindu Adoption and Maintenance Act of
1956 that was enacted in India as a part of the Hindu Code Bills. It brought about a few
reforms that liberalized the institution of adoption.

HINDU LAW

Hindu law is the only law in India which treats an adopted child as being equivalent
to a natural born child. The reason for this is mostly because of the belief that a son was
indispensable for spiritual as well as material welfare of the family. But it is significant to
note here that this role as a ‘deliverer of hell’ was only limited to the son. Under the old
Hindu Law, only a male could be adopted and an orphan could not be adopted. Then even if a
male was to be adopted, restrictions were imposed based on Caste and Gotra. A female child
could not be adopted under the Hindu Law. Under the old Hindu law, only the male had a
right to adopt and the consent or dissent of his wife to the proposed adoption was immaterial.

But such restrictions have changed in the course of time. Such gender biases have
been minimized in today’s modern society. Under the modern Hindu Law, every Hindu, male
or female has the capacity to make an adoption provided he or she has attained majority and
are of sound mind. Most of these laws, rules and regulations have been enumerated in the
Hindu Adoption and Maintenance Act of 1956.

HINDU ADOPTION AND MAINTENANCE ACT, 1956:

The Hindu Adoption and Maintenance Act was passed after Independence as part of
modernizing and codifying Hindu Law. The Act to some extent reflects the principles of
equality and social justice by removing several (though not all) gender based discriminatory
provisions. This Act deals with topics such as capacity to adopt, capacity to give in adoption,
effect of adoption, gender bias and such others.
CAPACITY TO ADOPT: In this Act it is said that any adult Hindu male who is of sound
mind can adopt a child. If the said man is married, the consent of the wife is necessary.5
Likewise, a female adult Hindu of sound mind could adopt a child if she is

1. Unmarried
2. Divorced
3. Widowed or
4. Her husband suffers from certain disabilities
1. Ceased to be a Hindu
2. Has renounced the World
3. Has been declared to be of unsound mind by the court.6

CAPACITY TO GIVE IN ADOPTION:

The section 9 of this Act states that only the father, the mother or the guardian can
make the decision of giving a child in adoption. The father can give the child in adoption only
with the consent of the mother, unless the mother has ceased to be a Hindu, has renounced
the world or is of unsound mind. The mother may give the child in adoption if the father is
dead or has completely and finally renounced the world or has ceased to be a Hindu or has
been declared by a court of competent jurisdiction to be of unsound mind.7

CONDITIONS TO BE SATISFIED FOR ADOPTING A CHILD:


 The couple should have been married for 5 years or more to go in for adoption.

 The couple needs to have a reasonable income to be able to bring up a child.

 The couple should have a good health status.

 The couple should be free of any criminal records.

 The composite age of the couple (i.e, their ages put together) should not exceed 90 to
adopt a young child or an infant. And the age of each of them should not be above 45 years.

 In case their composite age exceeds 90, they may go in for adoption of an older child.

 Singles who wish to adopt should be between the ages of 30 and 45 years.

5
Section 7, The Hindu Adoption and Maintenance Act, 1956
6
Section 8, The Hindu Adoption and Maintenance Act, 1956
7
Section 9, The Hindu Adoption and Maintenance Act, 1956
 Singles should have a family supporting them in this regard.

 Age difference between the single person and the child needs to be atleast 21.

 A girl child will not be given in adoption to a single male person.

 A child will not be given for adoption to same sex couples.

CHILDREN THAT ARE AVAILABLE FOR ADOPTION?


First of all the child should be legally free for adoption. Those who have
been surrendered by biological parents or by the unwed mother- due to various kinds of
prevailing life situations that make it difficult for them to bring up the child.
In cases of surrendered children, the agency generally gives the parent/s two months for a
change of mind. In the meanwhile they are offered counseling services to be able to think of
alternatives for the care and maintenance of the child. Abandoned children found by a third
party or police or by the child welfare committees or orphaned child found by anybody.

Destitute children – those who may run away from home and reach these institutions
through police or through the child welfare committees or those who may voluntarily join the
institution. In the above cases the police do their best to trace the parents and send the
children back home. If they cannot be traced, then they may be placed for adoption. In case of
older child, its consent is to be taken orally and in writing before placing for adoption. In case
of siblings, twins and triplets, care is taken not to separate the children and to give them to a
single family in adoption.

EFFECT OF ADOPTION:

When once a child has been adopted, that child severs all ties with his natural family.
All the right and obligations of natural born children fall on him. The wife of a Hindu male,
who adopts is deemed to be the adoptive mother. Where an adoption is made with the consent
of more than one wife, the senior most in marriage is deemed to be the adoptive mother and
the rest are given the title of step mothers. All laws relating to the adoptive parents and/or
step parents can be seen in ss. 12, 13 and 14 of the Hindu Maintenance and Adoption Act of
1956.
In this context, an issue came up. The case of Sawan Ram v. Kalavati8, brought out
the question as to whether, in the case of adoption by a widow, would the adopted child be
deemed to be the child of the deceased husband as well, so as to be his heir. The Supreme
Court held that the adoption would not only be by the female, but also to her deceased
husband. This argument was based on the words found in section 5(1) of the Act. Also, it has
to be noted that the adoptions once made by the parents cannot be cancelled by the parents,
nor can the adopted child renounce the adoptive family and go back to his/her birth parents.
Adoption is generally held to be permanent in nature, with neither parties going back on their
words. This has been stated in section 15 of The Act. But care has to be taken that the
adoption referred to in this section is a valid adoption.

GENDER BIAS IN ADOPTION:

Though after the enactment of the Act, it has been noted that the gender
discrimination has been eliminated but in actual sense it still exists. A married female cannot
adopt, not even with the husband’s consent, unless her husband dies or suffers from any
disability or renounces the world or so. On the other hand, a husband may adopt with the
consent of the wife. To clearly show the gender discrimination, two cases have been
referred.9 Similarly, in the matter of a giving a child in adoption, the Hindu male enjoys
broader rights than a corresponding female. The case of Malti Roy
Choudhury v. Sudhindranath Majumdar10 is oft referred to. In this case, the Appellant, Malti
had been adopted by the deceased mother. After her mother’s death, she became the sole
heiress and applied for estates and properties left behind by her mother. There were a lot of
evidences which have been presented by the appellant like proof of the ceremony of
adoption, natural parents handing over the child to the adoptive mother in the presence of her
husband and the priest; acknowledgement through school records; Malti being performed the
funeral ceremony of her mother. But however, the Court did not accept the argument and it
was held that, “under the provisions of the act, the husband alone can adopt, but here, it is an
admitted position that Malti was adopted by the mother Tripti not by the father and thereby,

8
AIR 1967 SC 1761
9
http://www.lawteacher.net/family-law/essays/adoption-in-hindu-law-and-muslim-law-law-essay.php
(last visited Oct. 15, 2017).
10
AIR 2007 Cal.4
rejected her appeal.”11 It is time that law, in this age of equality, takes cognizance of the same
and give equal rights to both men and women with regard to adoption. There is no reason to
give to the husband veto power to deny fulfillment of maternal instincts of his wife.

GUARDIANS AND WARDS ACT, 1890:

As the name itself suggests, the Hindu Adoption and Maintenance Act were mostly
the guidelines for the Hindu society. Another law had to be made which was sensitive to the
personal laws of other religions which did not come under the Hindu Adoption and
Maintenance Act of 1956. This gave rise to the Guardians and Wards Act of 1890. The
Guardians and Wards Act, 1890 was a law to supersede all other laws regarding the same. It
became the only non-religious universal law regarding the guardianship of a child, applicable
to all of India except the state of Jammu and Kashmir. This law is particularly outlined for
Muslims, Christians, Parsis and Jews as their personal laws don’t allow for full adoption, but
only guardianship. It applies to all children regardless of race or creed. Following is an
overview of the act.12 It was stated that any child who had not completed 18 years of age was
to be a minor. This child would be appointed guardians by the court or any other appointed
authority. They would decide who would take place as the said child’s guardian or by
removing another as a guardian. All these procedures took place only after an application had
been placed by the person who was willing to take a child under himself and to act as his
guardian. The applications should contain all the possible information that would have been
required, including the information about the guardian and any reason as such for the
guardianship. This was just the first step. Once the court admits the application, a date for a
hearing would be set. The court will hear evidence before making a decision. Unlike in the
procedures given in the Hindu Adoption and Maintenance Act, 1956, where a person once
adopted has a single set of parent, here a minor and his property could have more than one
guardian. It was required under these cases of guardianship that the court use its discretionary
power and considered the interests of the minor. His/her age, sex, religion, the compatibility
quotient with the guardian, the death of the parent, etc. must be taken into consideration. The
minor’s preference may also be taken into consideration.

11
Kusum, “Gender Bias in Adoption Law: A Comment On Malti Roy Choudhury v.Sudhindranath Majumdar”
Journal of Indian Law Institute, vol 49, 2007, pp 76 -80

12
http://www.childlineindia.org.in/Guardians-and-Wards-Act-1890.htm (last visited Oct. 15, 2017)
MUSLIM LAW
Adoption is a little different under Islamic law than the usual adoption practices that
are followed. The Islamic term for what is generally called adoption is kafala. Like
everything else in Islamic Law, the practice of adoption is highly regulated. A guardian/ward
role is played out rather than a parent. This relationship has specific rules. These rules are
mainly to preserve the integrity of the family line. Adoption is certainly not prohibited. What
is unlawful is to attribute one’s adopted child to oneself, as if there is a biological
relationship. This is because Islam seeks to safeguard biological lineage and not confuse
lineage.13

There are a few rules in Islam surrounding the concept of Adoption:

 An adopted child retains his or her own biological family name (surname) and does
not change his or her name to match that of the adoptive family.
 An adopted child inherits from his or her biological parents, not automatically
from the adoptive parents.
 If the child is provided with property/wealth from the biological family, adoptive
parents are commanded to take care and not intermingle that property/wealth with
their own. They serve merely as trustees.

These Islamic rules emphasize to the adoptive family that they are not taking the place of
the biological family — they are trustees and caretakers of someone else’s child. Their role is
very clearly defined, but nevertheless very valued and important.

It is also important to note that in Islam, the extended family network is vast and very
strong. It is rare for a child to be completely orphaned, without a single family member to
care for him or her. Islam places a great emphasis on the ties of kinship — a completely
abandoned child is practically unheard of. Islamic law would place an emphasis on locating a
relative to care for the child, before allowing someone outside of the family, much less the
community or country, to adopt and remove the child from his or her familial, cultural, and

13
http://en.islamtoday.net/quesshow-16-786.html.
religious roots. This is especially important during times of war, famine, or economic crisis
— when families may be temporarily uprooted or divided.14

CHRISTIAN LAW AND PARSI LAW


The personal laws of these communities also do not recognize adoption and here too
an adoption can take place from an orphanage by obtaining permission from the court under
Guardians and wards act. A Christian has no adoption law. Since adoption is legal affiliation
of a child, it forms the subject matter of personal law. Christians have no adoption laws and
have to approach court under the Guardians and Wards Act, 1890. National Commission on
Women has stressed on the need for a uniform adoption law. Christians can take a child
under the said Act only under foster care. Once a child under foster care becomes major, he is
free to break away all his connections. Besides, such a child does not have legal right of
inheritance.

The general law relating to guardians and wards is contained in the Guardians and
Wards Act, 1890. It clearly lays down that father’s right is primary and no other person can
be appointed unless the father is found unfit. This Act also provides that the court must take
into consideration the welfare of the child while appointing a guardian under the Act. 15 There
is no specific statute enabling or regulating adoption among Christians in India. In the
absence of a statutory or customary adoption recognized by courts, foster children are not
treated in law as children. On death of the foster parents, their estate is distributed among
legal heirs of the intestate, to the detriment of foster children. Christians in India can adopt
children by resort to section 41 of the Juvenile Justice (Care and Protection of Children) Act
2006 read with the Guidelines and Rules issued by various State Governments.16

ADOPTION REGULATING BODY IN INDIA


C A R A CENTRAL ADOPTION RESOURCE AGENCY is the governing body
in our country that regulates all matters involved in adoption. Its main objective is to find a
loving and caring home for every orphan / destitute / surrendered child. There are In-country
14
“Adopting a Child in Islam”, About.com – Islam, available at http://islam.about.com/cs/parenting/a/adoption.htm

15
Adoption: Under Hindu, Muslim, Christian and Parsi Laws, Legal Service India, available at
http://www.legalserviceindia.com/articles/hmcp_adopt.htm
16
http://en.wikipedia.org/wiki/Christian_law_of_adoption_in_India
adoptions and also Inter-country adoptions done through this Body. Usually
before considering a child for Inter-country adoption, it is first considered for adoption into
an Indian family residing in India.

All adoption placement agencies in India need to be registered under C A R A and


they must follow the guidelines set up by the State or Central Government. They are called
Licensed Adoption Placement Agencies or L A P A.

PROCEDURE FOR ADOPTION:

Those desirous of adopting a child need to first register themselves in any of the
registered Adoption Agencies, with documents like Income Certificate, Marriage Certificate,
Proof of Residence, health certificate, photographs of the couple, reference letters by
relatives/friends who can vouch for the suitability of the couple to take care of the child and
other such documents. A Home-study is done by a social worker appointed by the Agency.
The social worker will check the credentials and the suitability of the Parents desirous of
adoption. A Home-study Report is prepared and submitted to the Agency.

Pre-adoption counselling is done to apprise them of all the sensibilities involved in an


adoption. Then the child is shown to them keeping in mind the description desired by the
prospective parents. Whenever possible, care is also taken to match the child’s features as
close as possible to those of the parents so that there will not be too much of a mis-match and
the child can gel well with other members of the family. In case of an older child above 6
years, the child’s consent is also taken for adoption into this family.

Now petition will be filed in the court for obtaining orders for adoption from the
court. This may take 6 to 8 weeks.

In case of a surrendered child, the surrendering document would have been signed by
the parents or the unwed mother or in case of an unwed minor mother, other responsible
family member’s signature is taken. These documents are kept in a sealed cover and given to
the judge for his /her perusal. This document is kept by the agency in all confidence and can
be shown to the child only after attaining the age of 18, if he/she desires to know this
information.
There are three different laws that govern the adoption procedure and the adoptive
parents are given information about these laws and they can decide upon the law by which
the adoption that they go in would be governed.

Follow up visits by the social worker is done up to a year to check how the child is
being brought up. In case the parents require post-adoption counseling on any matter, that
would be available through the social worker. The visits by the social worker ends once the
agency feels satisfied with the adjustment happening between the child and the parent/s.

UNIFORM CIVIL CODE FOR ADOPTION:

Laws relating to crime and punishment are the same for all citizens in India, and so
are the laws relating to commerce, contracts and other affairs. But there are, as is evident
from the case laws and the authorities put forth above, that there are no uniform laws
regarding family matters in the Indian context. It has been requested since a long time for a
uniformity in such laws. To treat all citizens equally, one must have same laws for
everybody. In case of adoption, the conspicuously different laws for Hindus and Non Hindus
creates an emotional problem. The non-Hindu parents, who may want to adopt a child and
treat him/her as their own are not legally allowed to call themselves the parents or claim the
child as their own. Hence, there has been a cry for a uniform civil code with respect to
adoption. A uniform civil code in adoption laws will not violate fundamental right to religion.
It should be remembered that directive principles of States policy mandate the state to bring
uniformity in laws. India being signatory to CRC (Convention on the Rights of a Child), such
uniformity is necessary so that the rights of adoptive children can well be enhanced and
protected. Since Adoption is a salient feature of Hinduism, The Hindu Adoptions and
Maintenance Act, 1956 statutorily recognizes adoption. The Act brought about significant
changes to the law of adoption amongst Hindus and has improved the position of women in
this regard. It is absurd that Muslim and Christian Indians cannot legally adopt a child for
lack of a uniform code on adoption. If a Uniform Civil Code is enacted, like the Hindu
women, the women following other religions will also be allowed to adopt. With the coming
of a Uniform Civil Code, the status of Indian women will definitely improve in all aspects of
social life. One way to avoid conflict would be to give people the option to opt out of
classification based on religion. It should not be mandatory that there should be a set of
religious personal laws that govern a person’s life; instead, more laws to ensure basic human
rights are the need of the hour. If the Centre is unwilling to move forward, individual states
should take the lead. Goa is one state that has shown the way and other states may follow
suit. A secular India needs a uniform civil code. Apart from this, care has to be taken that the
uniformity that has been requested for breaks through the shackles of gender bias too. The
different rules regarding adoption for men and women must stop. Both must have equal rights
to adopt a child. Thus this issue also needs to be addressed.

INTERCOUNTRY ADOPTION:

Inter-country adoption is the process by which you:

1. Adopt a child from a country other than your own through permanent legal means;
and
2. Bring that child to your country of residence to live with you permanently.

Inter-country adoption is similar to domestic adoption. Both consist of the legal transfer of
parental rights and responsibilities from a child’s birth parent(s) or other guardian to a new
parent or parents.17

Lakshmi Kant Pandey’s case is the most important in the area of inter-country
adoption. In 1982, a petition was filed under Article 32 of the Constitution by advocate
Lakshmi Kant Pandey alleging malpractices and trafficking of children by social
organizations and voluntary agencies that offer Indian children for adoption overseas. The
petition was filed on the basis of a report in the foreign magazine called “The Mail”. The
petitioner accordingly sought relief restraining Indian based private agencies “from carrying
out further activity of routing children for adoption abroad” and directing the Government of
India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry
out their obligations in the matter of adoption of Indian children by foreign parents. By an
order- dated 6.2.1984 the Supreme Court laid down detailed principles and norms to be
followed for the adoption of children by the people overseas. Many examples and references
were cited while ‘discussing the issue, including the statutory provisions and the international
standards. While discussing the issue the court said: “When the parents of a child want to

17
Inter-country Adoption, Bureau of Consular Affairs, US, available at
http://adoption.state.gov/adoption_process/what.php
give it away in adoption or the child is abandoned and it is considered necessary in the
interest of the child to give it in adoption, every effort must be made first to find adoptive
parents for it within the country because such adoption would steer clear of any problems of
assimilation of the child in the family of the adoptive parents which might arise on account of
cultural, racial or linguistic differences in case of adoption of the child by foreign parents. If
it is not possible to find suitable adoptive parents for the child within the country, it may
become necessary to give the child in adoption to foreign parents rather than allow the child
to grow up in an orphanage or an institution where it will have no family life and no love and
affection of parents and quite often, in the socio-economic conditions prevailing in the
country, it might have to lead the life of a destitute, half-clad, half-hungry and suffering from
malnutrition and illness”.18

The Supreme Court of India has laid down that every application from a
foreigner/NRI/PIO (as applicable) desiring to adopt a child must be sponsored by a social or
child welfare agency recognized or licensed by the Government or a Department of the
Foreign Govt. to sponsor such cases in the country in which the foreigner is resident. The
foreign agency should also be an agency ‘authorized’ by CARA, Ministry of Social Justice &
Empowerment, Govt. of India. No application by a foreigner/NRI/PIO for taking a child in
adoption should be entertained directly by any social or child welfare agency in India.19

18
Dr. Subhash Chandra Singh, “Adoption Law in India: Need for a Fresh Look”, Cental India Law Quarterly
(Vol. 15, 2002)

19
Central Adoption Resource Authority, Ministry of Women and Child Development, Government of India,
available at http://www.adoptionindia.nic.in/guide_inter_country_chap4.htm
CONCLUSION
Adoption is a noble cause, which brings happiness to kids, who were abandoned, or
orphaned. This gives a chance for the humane side of civilization to shine through. It’s a
beneficial program where the child is treated as the natural born child and given all the love,
care and attention. At the same time, it fills the void in the parents who yearned for kids, their
laughter and mischief echoing off the walls of a home. Although a few changes could be
made to make all the laws regarding adoption a little, uniform.

‘Adopting one child won’t change the world: but for that child, the world will change.’
BIBLIOGRAPHY

 STATUTES:
o Hindu Adoption and Maintenance Act of 1956
o Guardians and Wards Act of 1890
o Juvenile Justice (Care and Protection of Children) Act, 2000

 BOOKS:
o Paras Diwan, “Law of Adoption, Minority, Guardianship and Custody”,
University Law Publishing Company, (4th, 2010)
o “Child Adoption: Trends and Policies”, Department of Economic and Social
Affairs, UN, New York (2009)
o Kusum, “Family Law Lectures – Family Law I”, Lexis Nexis Butterworths,
Wadhwa, Nagpur (2nd, 2008)
o Paras Diwan, “Family Law”, Allahabad Law Agency, (9th, 2009)
o “Child Adoption: Trends and Policies”, Department of Economic and Social
Affairs, UN, New York (2009)

 ONLINE SOURCES:
o Childline India Foundation (childlineindia.org)
o Islam Today (en.islamtoday.net)
o com – islam (islam.about.com)
o Legal Service India (legalserviceindia.com)
o Wikipedia (en.wikipedia.org)
o Central Adoption Resource Authority (adoptionindia.nic.in)
CONTENTS

 INTRODUCTION
 ADOPTION UNDER ENGLISH LAW
 MODERN ADOPTION LAWS
 WHO ARE THE ONES WHO GENERALLY ADOPT A CHILD
 CONDITIONS FOR ADOPTION
 INTER COUNTRY ADOPTION
 GUARDIAN AND WARDS ACT,1890
 WHO CAN BE ADOPTED
 NECESSARY PROCEDURE FOR A VALID ADOPTION
 OTHER ASPECTS OF ADOPTION
 PROCESS OF ADOPTION
 CAN A PERSON ADOPT A CHILD IF HE ALREADY HAS A CHILD
 IS THERE ANY MINIMUM INCOME REQUIRED FOR ADOPTING A CHILD
 ADOPTION IN INDIA
HINDU LAW
HINDU ADOPTION AND MAINTENANCE ACT
 CAPACITY TO ADOPT
 CAPACITY TO GIVE IN ADOPTION
 CONDITIONS TO BE SATISFIED FOR ADOPTION
 CHILDREN THAT ARE AVAILABLE FOR ADOPTION
 EFFECT OF ADOPTION
 GENDER BIAS IN ADOPTION
 MUSLIM LAW
 CHRISTIAN LAW AND PARSI LAW
 ADOPTION REGULATING BODY IN INDIA
 PROCEDURE FOR ADOPTION
 UNIFORM CIVIL CODE FOR ADOPTION
 CONCLUSION
 BIBLIOGRAPHY