What Does Adoption in India Mean?

Children are regarded as a source of joy, and their future inextricably gets linked to the country. In the meantime, infants born in India are pampered, cared for, and provided with all their development needs, yet over 60,000 children are abandoned in India each year.

It is a terrible state of affairs that some children become victims of human trafficking and sexual abuse. Still, children are brought to an adoption agency and allowed to live a better life until adopted in many lucky situations. In this article, we learn about the procedures to adopt a child in India.

What is adoption?

Adoption is the permanent legal transfer where all parental rights get transferred from one individual to another or a couple. Adoptive parents possess the same rights as biological parents, and adopted children enjoy the same social, legal, emotional, and familial benefits as biological children.

Adoptions Laws in India

Adoption has been practised and customised in India from ancient times. Adoption was predominantly seen as a sacramental act. Though the goal of the act has changed, the act of adoption has not.

Muslims, Christians, and Parsis are among those who must go to court under the Guardian and Wards Act of 1890. They may only take one child into foster care at a time. Once a kid achieves the age of majority, i.e., 18 years old, he or she is free to dissolve any ties. In addition, such a child is not legally entitled to inherit.

Hindus, Jains, Sikhs, and Buddhists in India are permitted to adopt a kid legally. As part of the Hindu code bills, India adopted the Hindu Adoption and Maintenance Act 1956. It led to the implementation of some measures that liberalised the adoption process.

Child Adoption Under Hindu Law

Adoption is a sacramental rather than a secular act, according to Hindu Law. The adoption object can get divided into two parts:

• To ensure one’s descent’s continuance.
• To guarantee that his/her funeral rights get carried out.

Because of the idea that a son was necessary for the family’s spiritual and material well-being, Hindu law is the only legislation that treats an adopted kid as equal to a natural child.

Previously, Hindu law stipulated that only males could be adopted, with limits based on Caste and Gotra. So, female children could not get adopted under Hindu law. In addition, only the man had the right to adopt, and his wife’s objections were irrelevant.

Such limitations have evolved with time. In today’s contemporary culture, gender prejudices have been eliminated. Under current Hindu law, any Hindu man or female who has reached the age of majority and possesses a sound mind has the legal competence to adopt. The Hindu Adoptions and Maintenance Act, 1956, enumerates most of these laws, norms, and regulations.

Essentials of a valid adoption under Hindu Adoptions and Maintenance Act, 1956

The Hindu Adoption and Maintenance Act 1956 got established after independence as part of the process of codifying and reforming Hindu law. By embodying the ideals of equality and social justice, this act eliminates numerous gender-based discriminatory elements. There are many procedures for the adoption of a child within a family in India.

The Hindu Adoption and Maintenance Act, Sections 6 to 11, spell forth the adoption rules in India:

Section 6 of the Act, entitled “Requisites of a Legitimate Adoption,” declares that no adoption is valid unless it meets the following criteria:

• The adopting person has the capacity and the right to do so, as does the person who is adopting.
• Adoption is a possibility for the adopted individual. The other criteria make the adoption of the legislation.

Sections 7 and 8 define a Hindu’s competence to adopt a child.

Unsoundness of the mind gets linked to general mental health. Unsoundness of mind will encompass all forms of insanity, including epilepsy, stupidity, and lunacy.

A Hindu man or woman who has been married under the Special Marriage Act has the right to adopt. Whether a bachelor, widower, divorcee or married person, a significant Hindu male of sound mind can adopt.

A married Hindu man must seek his wife’s approval. If he has more than one wife, the permission of all spouses is required.

Without the agreement of the wife, adoption is null and invalid. The adoption is equally invalid if the wife’s permission to live with the husband is obtained but not the wife who lives apart.

Similarly, in the instance of adoption by wife, the act deviates significantly from previous law by allowing a Hindu female who is not a married woman to adopt herself in her own right.

A Hindu unmarried woman, widow, or divorcee is eligible to adopt under the legislation. In the case of Vijaya Laxman against V.B.T Shankar, the court decided that when a widow adopts a kid, she does not require the agreement of the co-widow since she adopts the child on her right.

Adoption is impossible for a married lady without her husband’s permission. As a result, under the following circumstances, a married woman cannot adopt:

• If her spouse is no longer a Hindu.
• If he has finally and entirely given up the world
• If he is mentally ill by a court of competent jurisdiction

The person capable of providing for adoption gets mentioned in Section 9 of the legislation. It stipulates that no one other than the child’s father, mother, or guardian has the authority to place the kid for adoption.

In the case of adoption, the father or mother must have an equal right to give the son or daughter in adoption. It further states that such rights may not be exercised by one of them without the agreement of the other unless one of them has ceased to be a Hindu or pronounced to be of unsound mind by a court of competent jurisdiction.

Both the father and mother are deceased, forsaken the world, abandoned the child, or declared insane by a court of competent jurisdiction. In that situation, the kid’s guardian may put the child up for adoption with the court’s consent.

While giving in adoption, the relevant property must guarantee that the child’s adoption is entirely for the child’s welfare and that suitable consideration for this purpose is given to the child’s request having respect to the kid’s age and undertaking, etc.

Section 10 identifies the person who may get adopted. The following are the child’s adoption conditions:

• It’s bound to be a Hindu child.
• An unadopted child
• He/she is not married unless the parties have a custom or usage that allows married or adopted individuals to marry.
• Unless there is a custom or usage relevant to the parties enabling persons who have completed 15 years of age to get adopted in adoption, the kid has not reached the age of 15.

Other requirements for a legal adoption get outlined in Section 11. So, as per the section, it’s essential to meet the following criteria for a valid adoption:

• If the adoption is for a boy, the adoptive father or mother must not have a Hindu son living at the time of the adoption by any relation (whether by genuine blood tie or adoption).
• If the adoption is for a girl, neither the adoptive father nor the adoptive mother must have a Hindu daughter alive at the time of the adoption.
• The age gap between the adoptive father and the daughter must be twenty-one years if a male adopts a female.
• The age gap between the adoptive mother and the son must be twenty-one years if a male adopts a female.
• Two or more people cannot adopt the same child at the same time.
• The adoption must be given and adopted by the parents or guardians involved, or under their authority, to transfer the child from the birth family to the adoptive family.

Who can adopt?

Some requirements are:

• Mentally, physically, and emotionally stable adoptive parents are required.
• The adoptive parents should have a good financial situation.
• There should be no life-threatening illnesses among the adoptive parents.
• Couples with three or more children are not eligible for adoption, except special needs children.
• A single female can adopt a kid of either gender; but, a single guy cannot adopt a girl child.
• A single parent’s maximum age restriction should be 55 years.
• The combined age of a couple should not exceed 110 years.
• Parent’s ages should be by CARA criteria at the time of registration.

Who can give a child for adoption?

The following persons are allowed to provide a kid for adoption under the Hindu Adoption and Maintenance Act, 1956:

• The father, with the mother’s permission (if she is alive)
• Only the father if the wife has totally and publicly forsaken the world, has left Hinduism, or been pronounced insane by the court.
• Only mother:
  • if her marriage gets annulled, or
  • if her husband has died, or
  • if he has entirely and openly forsaken the world, or
  • if he has quit Hinduism, or
  • if he has been pronounced insane by the court.
• With the consent of the relevant court, the legal guardian:
  • if both the child’s father and mother are deceased, or
  • have entirely forsaken the world
  • abandoned the kid, or
  • pronounced unsound in mind by the concerned court

  The court must get convinced that the adoption is justified in terms of the child’s welfare. And the adoptive parents will meet all of his/her wants and requests with relation to his/her age and age comprehension.

Who can be adopted?

• The Hindu Adoption and Maintenance Act of 1956 allows for the adoption of a child or person on meeting the following condition:
• He or she is a follower of Hinduism.
• He/she hasn’t been adopted yet.
• He or she is single (not married) unless he or she has a usage or custom that allows him or her to be adopted while married.
• He/she has not attained the age of 15 unless he/she has a use or custom that allows him/her to get adopted after 15 years of age.

The Guardian and Ward Act, 1980

India’s personal laws, such as Muslim Law, Christian Law, and Parsi Law, do not recognise full adoption. Non-Hindus in India do not have a legal right to adopt a child; they may only acquire a ‘guardianship’ under the Guardian and Ward Act, 1980.

Guardianship, on the other hand, does not provide the same status as a biological child. As previously stated, an adopted kid has no legal right to inherit property under the Hindu Adoption and Maintenance Act of 1956. This Act only acknowledges a guardian-ward relationship that lasts until the ward reaches the age of 21.

Adoption – Muslim Law

Adoption does not exist in Islam; Muslim law does not recognise it. It was stated in the landmark case Mohammed Allahabad Khan v. Mohammad Ismail that there is nothing in Muslim law that is equivalent to adoption as recognised by the Hindu system.

Under Muslim Personal Law, the closest thing to adoption is ‘Acknowledgement of Paternity.’ The distinction between the two is that in adoption, the adoptee is the known son of another person, whereas one of the requirements for acknowledgement is that the acknowledged is not the known son of another.

However, the courts under the Guardian and Ward Act of 1980 permits the adoption from an orphanage. Guardianship of a minor person entails overall control over the minor’s disposition. It involves the responsibility for the child’s care and well-being and the obligation to do so. It is more than just the child’s custody at a certain age. It is called Guardianship in Muslim Law.

Adoption in Parsi and Christian Law

In India, Parsis do not recognise the adoption, although, under the Guardian and Ward Act of 1980, they can adopt a kid from an orphanage with the consent of the appropriate court.

Adoption is also not acknowledged in Christianity.

Adoption is a personal law issue since it is a legal affiliation of a kid. Under the Guardian and Ward Act of 1980, Christians, like Muslims and Parsis, can adopt a kid from an orphanage with the consent of the relevant court.

According to the Act, a Christian can only take a kid into foster care. When the kid reaches the age of 21, he or she has the option of continuing to live with the guardian or severing all ties.

Furthermore, such a child has no legal claim to inherit the property.

Case study regarding Adoption in India

Case: In Re: Adoption Of Payal @ Sharinee Vinay Pathak And His Wife Sonika Sahay @ Pathak Vs. High Court of Bombay (India)

Facts

The first and second petitioners, both Hindus, married on June 29, 2001. Both are actors by trade, albeit the Second Petitioner is on sabbatical due to the care of two young children. The First Petitioner was born on July 27, 1967, and the Second Petitioner was born on January 19, 1977. They both have a daughter, who was born on February 4, 2003.

On April 13, 2005, the Petitioners sought appointment as guardians of a girl child in a Guardianship Petition Indian Guardianship Petition 83 of 2001 filed before this Court under the Guardians and Wards Act, 1890.

The child was born on November 12, 2004, to a woman whose identity will not get revealed for reasons of her privacy. On November 16, 2004, four days after the kid was born, the mother and her spouse signed a statement documenting the circumstances that led to their decision to surrender the child at the nursing facility where the child was born.

According to the declaration, a social worker at Bal Vikas, a placement agency recognised by the Government of India, counselled the mother and her spouse. They willingly consented to relinquish the kid.

At the bottom of the declaration, an Indian Council for Social Welfare Scrutiny officer endorsed having counselled the parents on the document’s contents and informing the mother that she had two months to reclaim the child, failing which the child would get placed in either adoption or guardianship.

The child’s parents have not stepped forward to claim him or her. On April 13, 2005, the managing trustee of Bal Vikas submitted an affidavit before this Court confirming the facts and expressing an opinion that it would be in the child’s best interests to place her under guardianship.

Judgement

The Hindu Adoptions and Maintenance Act, 1956, and the Juvenile Justice (Care and Protection of Children) Act, 2000, are interpreted differently in the Petition before the Court.

The Hindu Adoptions and Maintenance Act of 1956 modifies and codifies the legislation governing Hindu adoptions and maintenance and defines the requirements for legal adoption. If the child is a female, the father or mother must not have a Hindu daughter (or a son’s daughter) living with them at the time of the adoption.

The Parliament passed The Juvenile Justice (Care and Protection of Children) Act of 2000 to govern the law’s interaction with children in conflict with the law, to provide for the rehabilitation and social integration of orphaned, abandoned, or surrendered children.

Adoption is one of the methods approved by Parliament for assisting a rehabilitated person. The Juvenile Justice Act does not include a restriction prohibiting parents from adopting another child of the same gender if they already have one. Regardless of the number of live biological sons or daughters, the Act recognises the right of parents to adopt children.

The question before the Court is whether a Hindu spouse has their kid, as defined by the Hindu Adoptions and Maintenance Act of 1956, can adopt a child of the same gender under the terms of the Juvenile Justice Act of 2000. The problem highlighted has important implications for people and couples in India who want to adopt children from various religious and socioeconomic backgrounds.

The Juvenile Justice Act of 2000 is a secular piece of law. Orphaned and abandoned children’s human tragedies cut beyond socioeconomic and religious lines. The desire to adopt is a delicate manifestation of human nature.

Again, religious identification does not limit this need. The Court must reconcile personal law with secular law.

Conclusion

Adoption is a good endeavour since it provides happiness to children who have been abandoned or orphaned. Adoption allows humanity’s more compassionate side to come through.

Furthermore, it is a good programme where the kid gets treated as a natural-born child and lavished with love, care, and attention. It also fills the gap in the hearts of parents who long for children, their laughter and mischief booming off the walls of a home.

Even today, a few adjustments could be made to make all adoption laws more consistent.