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Applicable for Hindus, Buddhists, Jains and Sikhs Not applicable for Muslims, Parsis, Jews Although adoption is the best resort for a child in absence of his natural parents, personal law of Muslims, Christians, Parsis and Jews does not recognize complete adoption. Thus, individuals belonging to these religions do not have an enabling law to adopt a child. They can take the child in 'guardianship' under the provisions of the Guardian and Wards Act, 1890
Definition
Transplantation of child from the family of his natural parents to another family by mutual consent of adopting parents and natural parents
Effects of adoption
The adopted child becomes a part of the adoptive family for all purposes with effect from the date of adoption and all ties with family of birth are severed except 1. the child cannot marry a person whom he or she could not have married, if he or she had continued in the family of birth 2. any property vested in the child before adoption shall continue to vest along with the obligations attached to ownership including obligation to maintain relatives 3. the adopted child shall not divest any person of any estate which vested in him or her before adoption
Attestation
Deed must be executed by giver as well as receiver and must be clearly attested as bond
Registration
Section 16 of Hindu Adoption and Maintenance Act 1956 requires registration of the adoption deed Stamp duty is also chargeable on adoption deeds under Article 3 Schedule1 of Indian Stamp Act
Couples from all religions can gain the status of adoptive parents under the Juvenile Justice (JJ) Act (Care and Protection of Children), 2000. An amendment brought about later to the JJ Act has allowed people following Christianity and Islam also to get the status which was denied to them till recently. They were only given the status of guardianship till the child attained 18 years.
JJA, 2000 has managed to legitimize uniform adoption, when previous attempts to pass the Adoption of Children Bill had failed. Section 41 of the Act deals with carrying out investigations and giving children up for adoption in accordance with the guidelines issued by the State governments. The CWC is to declare a child free for adoption in the case of abandoned children. Under this Act, a child may be given for adoption irrespective of the number of living biological sons or daughters. This is contrary to the provisions contained in the Hindu Adoption and Maintenance Act (HAMA). The HAMA permits a Hindu to adopt a child whose gender differs from the gender of the biological child. The provisions with regard to adoption under the new Act enable a Muslim, Parsi or Christian to take a child in adoption. A Hindu can adopt a child whose gender is same as that of the biological child .
Earlier, only the Hindu Adoption and Maintenance Act gave all the rights of a biological child to the adopted child and the status of adoptive parents. A number of couples in other religions are now going in for correcting the status of guardianship to adoptive parents under the provisions in the amendment brought about in 2006.
Flaws and loopholes of the Juvenile Justice (Care and Protection of Children) Act, 2000
Existence of a prior law relating to adoption for Hindus, The non-existence of adoption laws for non-Hindu communities, The prohibition of adoption in the religious laws of some communities, for example Muslims The silence of the Act on the issue of intercountry adoptions.
it is a well-settled principle of Jurisprudence that when there is a general and specific law on the same aspect of law, the latter has precedence over the former. Consequently, the Juvenile Justice Act is rendered fruitless and ineffective by the very presence of Hindu Adoptions and Maintenance Act, 1956, in case of Hindus.
The Muslims challenge the constitutionality of the provision (section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000) per se, since the concept of adoption runs contrary to the injunctions of the Holy Koran.