COMPETENCY OF PERSONS IN ADOPTION PROCESS

1. INTRODUCTION: In the early days, the practice of adoption was shrouded in the secrecy, which was restricted in an Indian traditional family. The tradition at that time was that, childless couples adopt a child with a view to ensure the continuity of tradition and to avoid alienation of property. The cases of adopted child being changed as a biological child by means of various subterfuge was also significant in those days.

The Government of India is fully sensitized and committed to the rights and welfare of children. The Constitution of India under Article 24- Chapter on Fundamental Rights of the Citizens provides the right against exploitation of the children below 14 years. Article 45 of the Directive Principles of the State Policy in the Indian Constitution envisages for free and compulsory education of children. Although there is no general law of adoption, yet it is permitted by a statute amongst Hindus and by custom amongst a few numerically insignificant categories of persons. Since adoption is legal affiliation of a child, it forms the subject matter of personal law. The religion specific nature of adoption laws was a very conservative step. It reinforced practices that were unjust to children and hindered the formation of a Uniform civil code. Article 44 of the Indian Constitution declares that The state shall Endeavour to secure for citizens a Uniform Civil Code throughout the territory of India.

At the International level, India has ratified the convention on the Rights of Child and the Hague Convention on inter- country adoption of children. At national level, India has prepared a National Policy for children in 1974 under which Ministry of Social Justice and Empowerment (now known as Ministry of Women and Child Development) has got the mandate to enact laws regarding welfare of children. The Juvenile Justice (Care and Protection of Children) Act 2000 is a landmark in this regard. This Act has incorporated the provision of adoption of child as an alternative to institutional care.

Adoption provides a very important function in Indian society. India has long tradition of child adoption. In olden days, it was restricted within the family and was covered by social and religious practices. But with the changing times, adoption beyond the contour of family has been institutionalized and legalized.

2. WHAT IS AN ADOPTION?
Adoption means the process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship. Adoption of orphan, abandoned and surrendered children in India is governed by a set of guidelines notified by Government of India. The text of Manu governing the position states Adopted son shall never take the family (name) and the estate of his natural father, the funeral cake follows the family (name) and the estate; the funeral offerings of him who gives (his son in adoption) cease (as far as the son is concerned). Adoption is the transplantation of a son from the family in which he is born, to another family where he is given by the natural parents by way of gift. The adopted son is then taken as being born in the new family and acquires rights, duties and status there only, and his tie with the old family comes to an end. The concept of adoption is concerned with Hindus only. Concept of adoption can be traced even from Vedic times. The ancient texts Dattaka Mimamsa, Dattaka Chandrika, Manu, Yagnavalkya, Gautama, Baudhayana, and Kautilya etc well refer to this concept. The adoption is not an institution peculiar to Hinduism, but owes its origin to the social communism peculiar to the primitive races. In early times, children irrespective of their sex were taken in adoption. Manu defines an adopted son as follows A son equal in caste and affectionately disposed, whom his mother or father (or both) give with water at a time of calamity, is known as the Dattrima (Dattaka) son.

Adoption Law falls under Family Law and is mainly governed by the states in which the parent and child live. It encompasses the process by which a legal parent-child

relationship is created between individuals not biologically parent and child (adoption process). The biological parent gives up all parental rights and obligations, and these rights and obligations are assumed by the adoptive parents. These days, there are a lot more options available through the adoption process where adoptive families can adopt a child than ever were before. Currently, the adoption under Hindu Law is governed by The Hindu Adoption and Maintenance Act, 1956.The Hindu Adoption and Maintenance Act, 1956 extends to only the Hindus, which are defined under Section-2 of the Act and include any person, who is a Hindu by religion, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,or a Buddhist, Jain or Sikh by religion, to any other person who is not a Muslim, Christian, Parsi or Jew by religion. It also includes any legitimate or illegitimate child who has been abandoned both by his father and mother or whose parentage is not known and who in either case is brought up as a Hindu, Buddhist, Jain or Sikh. Adoption is recognized by the Hindus and is not recognized by Muslims, Christian and Parsi. The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to minority and guardianship. As in the case of unmodified law, it has upheld the superior right of father. It lies down that a child is a minor till the age of 18 years. Natural guardian for both boys and unmarried girls is first the father and then the mother. Prior right of mother is recognized only for the custody of children below five. In case of illegitimate children, the mother has a better claim than the putative father. The act makes no distinction between the person of the minor and his property and, therefore guardianship implies control over both. The Act directs that in deciding the question of guardianship, courts must take the welfare of child as the paramount consideration. Section 6 of the said Act, provides about the natural guardians of a Hindu minor. Section 7 of the very Act speaks about the natural guardianship of adopted son The main purpose of law of adoption is to provide consolation and relief to a childless person. Agreement not to adopt is invalid In kartar Singh v. Surjan Singh AIR 1974 SC 2012, it was held that, an agreement not to adopt is void being against public policy. An adoption made by a person having capacity to adopt, in breach of any such agreement, will be valid. Under the Act even when an

adoption is made in consideration of some pecuniary or proprietary benefit (irrespective of the fact whether consideration has passed or not), the adoption is valid, despite the fact that such an agreement is void.

Requirements for a valid adoption Section 6 enumerates the requisites of a valid adoption. It lays down that no adoption shall be valid unless the person adopting has the capacity as also the right to take in adoption; the person giving in adoption has the capacity to do so; the person adopted is capable of being taken in adoption, and the adoption is made in compliance with the other conditions mentioned in Chapter II. In the Hindu law the requirements for a valid adoption. The Act reads, I. II. III. The person adopting is lawfully capable of taking in adoption The person giving in adoption is lawfully capable of giving in adoption The person adopted is lawfully capable of being taken in adoption

The adoption is completed by an actual giving and taking and the ceremony called data homan (oblation to the fire) has been performed. However this may not be essential in all cases as to the validity of adoption?

3. COMPETENCY OF VARIOUS PERSONS

The law of adoption is explained through the following heads:

-Who may take in adoption: Section-7, Section-8 and Section-11 of Hindu Adoption and Maintenance Act, 1956 explains this concept of adoption. The sections explain the various provisions for adoption by Hindu male, Hindu female and restrictive conditions of adoption.

Section 7- Capacity of male

Section 7 of the Hindu Adoptions and Maintenance Act, prescribes the general capacity of a Hindu male to take a son or a daughter in adoption if he is of sound mind and not minor.

Similarly, section 8 of the Act empowers a female Hindu to take a son or daughter in adoption subject to the fulfillment of conditions prescribed in the Act.. The 1956 Act now provides for adoption of boys as well as girls. By virtue of the proviso to Section 7, the consent of wife has been made a condition precedent for adoption by a male Hindu. The mandatory requirement of the wife's consent enables her to participate in the decision making process which vitally affects the family. If the wife finds that the choice of the person to be adopted by the husband is not appropriate or is not in the interest of the family then she can veto his discretion.

Section 8- Capacity of female Any female Hindu who is of sound mind who is not a minor, and Who is not married, or if married, whose marriage has been dissolved or whose husband 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, has the capacity to take a son or daughter in adoption. Where the woman is married it is the husband who has the right to take in adoption with the consent of the wife. A female Hindu who is of a sound mind and has completed the age of eighteen years can also take a son or daughter in adoption to herself and in her own right. After the Personal laws (Amendment) Act 2010, a females right to adopt has been brought at par with the males rights.

No person except the father or mother or guardian of the child shall have the capacity to give the child in adoption. The father alone if he is alive shall have the right to give in adoption, but such right shall not be exercised except with the consent of the mother unless the mother 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. 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. Where both the father and mother are dead

or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is unknown - the guardian of the child may give the child in adoption with the previous permission of the court. The court while granting permission shall be satisfied that the adoption is for the welfare of the child and due consideration will be given to the wishes of the child having regard for the age and understanding of the child. The court shall be satisfied that no payment or reward in consideration of the adoption except as the court may sanction has been given or taken.

Section 11- Other conditions for a valid adoption The other requirement for the adoption to be rendered as valid are that while adopting a child one must take into consonance and consideration the following points. If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son living at the time of adoption If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter living at the time of adoption; If the adoption is by a male and the person to be adopted is a male, the adoptive father is at least twenty one years older than the person to be adopted;

-Who may be taken in adoption? Section-10 of Hindu Adoptions and Maintenance Act, 1956. Section 10 speaks about the persons who may be adopted. This section provides that a child male or female is capable of being taken in adoption if he or she is a Hindu and not already been adopt any male Hindu, who is of sound mind and is not a minor, has the capacity to take a son or daughter in adoption. Provided that if he has a wife living, he shall not adopt except with the consent of his wife, unless his wife 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. If a person has more than one wife living at the time of adoption the consent of all the wives is necessary unless the consent of one of

them is unnecessary for any of the reasons specified in the preceding provision deal elaborately with the qualification of the child to be taken in adoption. Under the modern law, the requirements are as under: WHO MAY ADOPTED No person can be adopted unless: he or she is a Hindu; he or she has not already been adopted; he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; he or she has not completed the age of fifteen years unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

THE DOCTRINE OF RELATION BACK In the Modern Hindu law, an adoption has the effect of transferring the adoptee from his natural family to that of his adopters conferring on him thereby the legitimate natural born sons right and privileges in the adopters family. On the other hand, the adopted child loses all rights and privileges of a natural born child in the natural family. Under the Old Hindu Law, a son adopted by her widow is deemed to be her husbands son and therefore adoption related back to the date of death of her husband. The radical change introduced by the Hindu Adoptions and Maintenance Act, 1956 is that the adoption comes into effect only from the date of adoption. Under old Hindu law, if a widow adopted a son, the son was considered to have been adopted on the date of the death of her husband and all the rights of the son would date back to the death of the deceased adoptive father. The fiction of relation back was in consonance with the old Hindu law as under its provisions a woman could not adopt to herself and where she could adopt, she could only do so with her husbands consent. Where a widow adopted, conforming, to the implied or expressed consent and authority of her deceased husband, the adoption was deemed to have taken place on the date of the death of her husband. This was essential in order to ensure continuity in the family line. Nevertheless, under the present Hindu law, women are authorized to adapt to

themselves so it was found that the doctrine of relation back caused considerable ambiguity and resulted in injustice in several cases. Thus, S.12 of the Act was introduced to put an end to the doctrine. In Kartar Singh v. Gurdial Singh (2008) 1 HLR 657 (P&H) where the respondent who was adopted by his maternal grandfather claimed property rights in the family of his birth, the court said that upon adoption no rights remain in the family of birth. Proviso (a) to this section contains a restriction on the marriage of adopted child with a person to whom he or she could not have married if he or she had continued in the family of his or her birth. Clause (b) of the proviso saves the vested right of the adopted child in the property subject to the obligations, if any, attached to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth. Likewise, clause (c) to the proviso lies down that the adopted child shall not divest any person of any estate vested in him or her before the date of adoption. Section16 which embodies a rule of presumption lays down that whenever any document registered under any law for the time being in force evidencing adoption and signed by the person giving and person taking the child in adoption is produced before any court, then it shall presume that the adoption has been made after complying with the provisions of the Act unless proved otherwise.

Thus, these are the rules and regulation prescribed for determining as to what is the capacity to adopt, to give in adoption and to be adopted.

4. CEREMONIES OF ADOPTION:
What are the conditions to be fulfilled by an adoptive parent? An adoptive parent should be medically fit and financially able to care for a child. A person wishing to adopt a child must be at least 21 years old. There is no legal upper age limit for parents but most adoptive agencies set their own benchmarks with regard to age. For a child who is less than a year old, the adoptive parents can have a maximum

combined age of 90 years. Also, neither parent must be older than 45 years.

In the case of adoption of older children, the age of the parents may be relaxed accordingly. For example, for a one-year-old child, the age limit is 46 years, for a twoyear-old child, it is 47 years and so on. The upper age limit for an adopted child is 12 years while for an adoptive parent it is 55 years. In the case of an adopted child with special needs, the age limit may be relaxed marginally by the state government, depending on the evaluation of the case. However, in all cases, the age of the parent cannot exceed 55 years. The question arises is: can a father exercise the power of giving in adoption his son born to him before adoption? A full bench judge of the Bombay High Court in Martland v. Narayan AIR 1939 Bom. 305 held that he can do so, as the father of the child. On the other hand, a full bench judge of the Nagpur High Court in Sarad Chandra v. Shanta Bai AIR 1944 Nag 66 took the view that he cannot do so, as the dattaka adoption implies a complete severance of the adoptee from his natural family and therefore has the right to give his son in adoption is lost after he himself goes in adoption in another family.

THE GUARDIAN AND WARD ACT (GWA), 1890 Personal laws of Muslims, Christians, Parsi and Jews do not recognize complete adoption. As non-Hindus do not have an enabling law to adopt a child legally, the people belonging to these religions who are desirous of adopting a child can only take the child in 'guardianship' under the provisions of The Guardians and Wards Act, 1890. The statute does not deal with adoption as such but mainly with guardianship. The process makes the child a ward, not an adopted child. Under this law, when children turn 21 years of age, they no longer remain wards and assume individual identities. They do not have an automatic right of inheritance. Adoptive parents have to leave whatever they wish to bequeath to their children through a will, which can be contested by any `blood' relative.

The aforesaid enactments remain silent about the orphan, abandoned and surrendered children. There was no codified legislation dealing with the adoption of the children of

these categories. As a result, several misconceptions or irregularities appeared in respect of the custody, guardianship or adoption of these types of children, which were prejudicial to the interest of the children. Personal law of Muslims, Christians, Parsi and Jews does not recognise complete adoption. As non-Hindus do not have an enabling law to adopt a child legally, those desirous of adopting a child can only take the child in 'guardianship' under the provisions of The Guardian and Wards Act, 1890. This however does not provide to the child the same status as a child born biologically to the family. Unlike a child adopted under the Hindu Adoption and Maintenance Act, 1956 the child cannot become their own, take their name or inherit their properly by right. This Act confers only a guardian-ward relationship. This legal guardian-ward relationship exists until the child completes 21 years of age. Foreigners, who seek to adopt an Indian Child, do so under this Act to assume legal Guardianship of the child, after giving an assurance to the court, that they would legally adopt the child as per the laws of their country, within two years after the arrival of the child in their country.

ADOPTION UNDER MUSLIM LAW Adoption is the transplantation of a son from the family in which he is born, into another family by gift made by his natural parents to his adopting parents. Islam does not recognize adoption. The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it. The Adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption applicable to all communities other than the Muslim community, was opposed by the Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt Parsis from the bill. The National Adoption Bill, tabled twice in Parliament in the seventies, adoption into our system of laws narrates a sad tale of inaction and action without conviction on the part of the legislature. In Mohammed Allahabad Khan v. Mohammad 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. The material difference between the two can be stated that in adoption, the adoptee is the known son of another person, while one of the essentials of acknowledgement is that acknowledges must not be known son of another. However an adoption can take place

from an orphanage by obtaining permission from the court under Guardians and Wards Act. The guardian/child relationship has specific rules under Islamic law, which renders the relationship a bit different than what is common adoption practice today. The Islamic term for what is commonly called adoption is kafala, which comes from a word that means "to feed." In essence, it describes more of a foster-parent relationship. ADOPTION UNDER PARSI LAWS: 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. However, there is a customary form of adoption prevalent among the parsis known as palak.

ADOPTION UNDER CHRISTIAN LAWS: 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 JUVENILE JUSTICE ACT, 2000 Adoption can be a most beautiful solution not only for childless couples and single people but also for homeless children. It enables a parent-child relationship to be established between persons not biologically related. It is defined as a process by which people take a child not born to them and raises it as a member of their family. Adoption as a legal concept was available only among the members of the Hindu community except where custom permits such adoption for any section of the polity. Only Hindus were allowed to legally adopt the children and the other communities could only act as legal guardians of the children. Article 44 of the Constitution declares that The

State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India. Over the years several attempts were made to formulate a general secular law on adoption. The attempts of Parliament in this direction did not bear fruit, all these went in vain on account of a number of reasons. The history of all such efforts does not bring credit to the secular credentials of the Indian polity. The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it. The Adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption applicable to all communities other than the Muslim community, was opposed by the Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt Parsis from the bill. The National Adoption Bill, tabled twice in Parliament in the seventies, has yet to enter the statute books. The history of attempt to bring in the concept of secular adoption into our system of laws narrates a sad tale of inaction and action without conviction on the part of the legislature. The existing legislations for adoption or taking a child in custody in India are following: The Hindu Adoptions and Maintenance Act (HAMA), 1956. This Act provides for adoption of Hindu children by the adoptive parents belonging to Hinduism. This is not applicable to other communities like Muslims, Christians and Parsis. They have to recourse to Guardians and Wards Act, 1890, wherein they become guardians of children. But the child does not have the status as it would have had, had it been born to its adoptive parents. One of features of this Act is that no Hindu person can adopt a son or daughter, if they already have a child of that sex. Often the intentions behind the law are good, but the methods adopted fall short. The HAMA provides that there should be an age difference of 21 years between the adoptive parents and the adopted child whenever they are of opposite sex. This is intended to prevent sexual abuse.

INTER-COUNTRY ADOPTION In India, an Indian, Non Resident Indian (NRI), or a foreign citizen may adopt a child. There are specific guidelines and documentation for each group of prospective adoptive parents. A single female or a married couple can adopt a child. In India, a single male is usually not eligible to be an adoptive parent. An exception to this rule is the noted dance instructor Sandip Soparrkar, who has recently adopted a young boy. This is a special case rather than the norm. A single man desiring to adopt a child may be eligible if he applies through a registered agency. However, he will still only be able to adopt a male child. A landmark case of Laxmikant Pandey vs. Union of India laid down few principles governing the rules for Inter-Country adoption. The case was instituted on the basis of a letter addressed to the court by a lawyer, Laxmikant Pandey alleging that social organisations and voluntary agencies engaging in the work of offering Indian children to foreign parents are indulged in malpractices. It was alleged that these adopted children were not only exposed to long horrendous journey to distant foreign countries at the risk of their life but they also ultimately become prostitutes and beggars. Supreme Court in this case expressed its opinion and framed certain rules for Inter-Country adoption. The Hon'ble Court asserted that, "while supporting Inter-Country adoption, it is necessary to bear in mind that the primary object of giving the child in adoption being the welfare of the people, great care has to be exercised in permitting the child to be given in adoption to foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the foreign country or the adoptive parents may not be able provide to the child a life of moral and material security or the child may be subjected to moral and sexual abuse or forced labor or experimentation for medical or other research and may be placed in worse situation than that in his own country ." It further went on to give the prerequisites for foreign adoption. It stated that In the first place, every application from a foreigner desiring to adopt a child must be sponsored by social or child welfare agency recognized or licensed by the government of the country in which the foreigner is a resident. No application by a foreigner for taking a child in adoption should be entertained directly by any social welfare agency in India working in

the area of Inter-Country adoption or by any institution or Centre or home to which children are committed by the juvenile court." The Supreme Court also insisted the age within which a child should be adopted in case of Inter-Country adoption. If a child is to be given in Inter-Country adoption, it would be desirable that it is given in such adoption before it completes the age of 3 years." Such a ruling was delivered by the Supreme Court because it felt if a child is adopted by a foreign parent before he/she attains the age of 3, he/she has more chances of assimilating to the new environment and culture. Another important rule framed by the Court during the course of judgment wasSince there is no statutory enactment in our country providing for adoption of a child by foreign parents or laying down the procedures which must be followed in such a case, resort had to be taken to the provisions of Guardian and Wards Act, 1890 for the purpose of felicitating such adoption.

Foreign citizens and NRIs are supposed to formally adopt their child according to the adoption laws and procedures in the country of their residence. This must be carried out within two years of the individual becoming a child's guardian. There is also a Juvenile Justice Act of 2000, a part of which deals with adoption of children by non-Hindu parents. However, this act is applicable only to children who have been abandoned or abused and not to those children who have been voluntarily put up for adoption.

Conclusion The legal consequences of adoption are several. In the past a valid adoption by a Hindu himself, his wife or his widow (with or without authority) resulted in the adopted boy being transferred from the family of his birth to the adoptive family as effectively as if the adoptive father had begotten him in a lawful wedlock. An adoption once made could not be cancelled by the parties thereto, nor could the adopted son renounce his status as such and return to his family. The adopted son might give up or modify his rights to property and inheritance in the adoptive family either before or after adoption. The clause (c) of S.12 has removed the ambiguity of the doctrine of relation back which was concerned with the problem of vesting and divesting of property, involving large amount of litigation. Adoption provides a very important function in Indian society. India has long tradition of child adoption. 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. Under this act, a single parent or married couples are not permitted to adopt more than one child of the same sex. Foreign citizens, NRIs, and those Indian nationals who are Muslims, Parsis, Christians or Jews are subject to the Guardian and Wards Act of 1890. Under this act, the adoptive parent is only the guardian of the child until she reaches 18 years of age. India has prepared a National Policy for children in 1974 under which Ministry of Social Justice and Empowerment (now known as Ministry of Women and Child Development) has got the mandate to enact laws regarding welfare of children. The Juvenile Justice (Care and Protection of Children) Act 2000 is a landmark in this regard. It is thus suggested that a proviso should be added to the Section 7 of the Act when a widow or a married woman makes an adoption, the adoption will also be filially related to her deceased husband or to the husband of the married woman, whose husband either

finally renounced the world or has ceased to be a Hindu or has been declared by a competent court of jurisdiction to be of unsound mind. These changes, if made, would ensure a safer home for the child to be adopted.

CASES REFERRED:
1. Kartar Singh v. Surjan Singh AIR 1974 SC 2102 2. Sarad Chandra v. Shanta Bai AIR 1944 Nag 66 (FB) 3. Martand v. Narayan AIR 1944 Bom 305 (FB) 4. Laxmikant Pandey v. Union of India 5. Kartar Singh v. Gurdial Singh

Bibliography: Websites Referred; 1. http://www.deccanherald.com 2. http://books.google.co.in/books 3. http://books.google.co.in 4. http://www.scribd.com 5. http://childadoptionbyhindus.blogspot.in/ 6. http://jurisonline.in Books Referred: