This article is written by Divya Bhasin, a 2nd year student of Lloyd School of Law, Greater Noida

 

Abstract

The text explores the landscape of adoption in India , highlighting recent amendments, historical context, legal procedures, and drawbacks . Notably, a significant amendment shifts the issuance of adoption orders from the court to District Magistrates, aiming to expedite the adoption process. The discussion encompasses age limits, eligibility criteria, and legal capacities for adoptive parents, emphasizing the Hindu Adoption and Maintenance Act, 1956. The complexities within different religious laws, issues such as trafficking and emotional trauma, and suggestions for positive changes are also addressed.

Introduction

The introduction outlines the evolving scenario of adoption in India, marked by a recent amendment prioritizing District Magistrates in issuing adoption orders to address delays caused by a backlog of court cases. The context is set against the backdrop of a declining adoption rate, prompting the Supreme Court’s consideration of simplifying legal proceedings in April 2022. The narrative delves into the historical trajectory of adoption laws in India, emphasizing the 2015 empowerment of the Central Adoption Resource Authority (CARA) to centralize and streamline adoption processes. The ensuing text explores the intricacies of adoption laws, recent legislative developments, and challenges within the adoption landscape in India.

 

Concept of Adoption in India

Adoption in India refers to the legal process by which a child is taken into the permanent custody of a person or a couple who are not the biological parents of the child. The adoption process in India is governed by the Juvenile Justice (Care and Protection of Children) Act, 2015, which replaced the earlier legislation known as the Juvenile Justice (Care and Protection of Children) Act, 2000.

 

The concept of adoption in India has been introduced with the aim of providing a legal framework for the care and protection of orphaned, abandoned, and surrendered children. The main objectives behind the concept of adoption include securing the funeral rights of individuals, preserving the continuation of one’s lineage, and restoring family life to children deprived of their biological families.

 

Several international conventions on human rights, such as the Convention on the Rights of the Child (CRC) in 1989, emphasize the positive duty to provide protection and assistance to children. Adoption laws in India have evolved to accommodate the diverse religious communities in the country. While Hindus are primarily governed by the Hindu Adoption and Maintenance Act, 1956 (HAMA), Muslims, Parsis, and Christians often resort to the Guardians and Wards Act, 1890, as the concept of adoption is not directly applicable to them.

 

The Juvenile Justice (Care and Protection of Children) Act, 2000, has made a commendable effort to address the adoption needs of various communities, allowing for secular adoption irrespective of religious affiliations. The Central Adoption Resource Authority (CARA) has been established as the apex controlling body, following directions from the Supreme Court.

 

India’s Adoption Procedures

1. Adoption in India requires some mandatory paperwork.
2. A reliable identity document.
3. A legally binding marriage license.
4. A proof of legitimate address and proof of residency in India for more than one year.
5. Three newly taken family photos.
6. The adoptive child must give written approval if the youngster is older than seven years old.

Two letters of recommendation must be provided by anyone who knows the adoptive family.

 

Key aspects of the adoption process in india

Eligibility Criteria

Prospective adoptive parents (PAPs) must meet certain eligibility criteria, such as age limits, health requirements, marital status, and financial stability.

 

Adoption Agencies

Adoption in India is facilitated through specialized adoption agencies (SAAs) that are recognized by the Central Adoption Resource Authority (CARA) or by the State Government. CARA is the nodal body responsible for the regulation of adoption in the country.

 

 Registration

 Prospective adoptive parents need to register with an adoption agency and complete the required paperwork. The registration process involves background checks, home study reports, and other assessments.

 

 Matching and Placement

Once registered, the adoption agency matches the child with prospective adoptive parents based on various factors, including the child’s age, health, and the preferences of the adoptive parents.

 

 Legal Process

After the match is made, the legal adoption process begins. The court issues an adoption order, granting legal custody of the child to the adoptive parents. This legal process ensures that the adoption is recognized and binding.

 

 Post-Adoption Follow-up

Adoption agencies conduct post-adoption follow-ups to ensure the well-being of the adopted child and to provide support to the adoptive family.

 

Inter-Country Adoption

India also allows inter-country adoption, where children are adopted by foreign nationals. However, there are specific guidelines and procedures for inter-country adoption, and it is regulated by both the laws of the sending country and India.

 

Child’s Welfare

The primary focus of adoption laws in India is the welfare of the child. The best interests of the child are given paramount importance in the entire adoption process.

 

It’s important for prospective adoptive parents to be aware of and comply with the legal requirements and procedures outlined by CARA and the relevant adoption agencies. The adoption process is designed to ensure the well-being and rights of the child, as well as to safeguard the interests of the adoptive parents.

 

What is CARA?

The Central Adoption Resource Authority (CARA) is a statutory body in India that operates under the Ministry of Women and Child Development. It is the apex body responsible for promoting and regulating in-country and inter-country adoptions. CARA was established to ensure that the adoption process is streamlined, transparent, and in compliance with the relevant laws and guidelines.

 

Key functions and responsibilities of CARA include:

 

1. Regulation of Adoption Agencies

 CARA is responsible for recognizing and regulating adoption agencies across India. These agencies play a crucial role in the adoption process, facilitating the matching of adoptive parents with children in need of adoption.

 

2. Centralized Adoption Resource Information and Guidance System (CARINGS)

 CARA maintains a centralized online database called CARINGS, which contains information on children available for adoption, as well as information on prospective adoptive parents. This system helps in efficient matching and placement of children with suitable adoptive parents.

 

3. Formulation of Guidelines

 CARA formulates guidelines and procedures for adoption, ensuring that the process is in accordance with the laws and international standards. These guidelines cover various aspects, including eligibility criteria for adoptive parents and the documentation required.

 

4. Monitoring Adoption Process

 CARA monitors the entire adoption process to ensure that it is carried out ethically and legally. This includes conducting periodic inspections of adoption agencies to assess their compliance with regulations.

 

5. Promotion of Adoption

 CARA actively promotes the concept of adoption and works towards creating awareness about the adoption process. This includes organizing awareness campaigns, training programs, and workshops.

 

6. Inter-Country Adoption

 CARA is the designated authority for managing inter-country adoptions in India. It works in collaboration with the adoption authorities of other countries to facilitate the adoption of Indian children by foreign nationals.

 

7. Legal Framework

 CARA operates within the legal framework provided by the Juvenile Justice (Care and Protection of Children) Act, 2015. The Act sets out the procedures and guidelines for the adoption of children in need of care and protection.

 

8. Coordination with State Adoption Agencies

 CARA collaborates with State Adoption Agencies (SAAs) to ensure effective implementation of adoption programs at the state level.

 

Overall, CARA plays a crucial role in ensuring that the adoption process is child-centric, transparent, and adheres to ethical standards. It works towards the best interests of the child and provides a centralized mechanism to facilitate both in-country and inter-country adoptions in India.

 

Adoption under the Hindu Adoption and Maintenance Act, 1956 (HAMA)
Adoption under the Hindu Adoption and Maintenance Act, 1956 (HAMA) is governed by specific provisions that outline the conditions and procedures for the adoption of children by Hindu individuals. The HAMA applies to Hindus, Buddhists, Jains, and Sikhs, and it provides a legal framework for adoption within these communities. Here are the key aspects of adoption under HAMA:

Hindu Male Adoption (HAMA Section 7)

1. Must be a major and must be of sound mind.
2. Should not suffer from idiocy or insanity.
3. Should have the capacity to understand the provisions of the Act.
4. Consent of the wife is necessary unless she has renounced the world, her Hindu religion, or is of unsound mind.
5. Consent is not required in the case of divorce, but it is mandatory in the case of judicial separation.
6. If a person has more than one wife, consent from all wives is necessary.

 

Hindu Female Adoption (HAMA Section 8)

1. Must be a major 
2. Must be of sound mind.
3. Can adopt if unmarried or if married, under specific conditions such as dissolution of marriage, death of husband, renouncement by the husband, or declaration of husband’s incompetence by the competent court.

 

The Guardians and Wards Act, 1890

The Guardians and Wards Act, 1890, is an Indian law that deals with matters related to the appointment of guardians for the care and custody of minor children. The primary purpose of the Act is to ensure the welfare of minors by providing a legal framework for the appointment of guardians in situations where the natural parents are unable to fulfill their responsibilities.

 

Key features of the Guardians and Wards Act, 1890

Guardianship of Minor Children

 The Act applies to the appointment of guardians for minor children. A minor is generally defined as a person who has not attained the age of 18 years.

Welfare of the Child

The paramount consideration in appointing a guardian is the welfare of the minor. The court is required to consider the moral and ethical upbringing of the child and make decisions that are in the best interests of the minor.

Types of Guardianship

 The Act recognizes both natural guardians (such as parents) and appointed guardians. Natural guardianship is generally the right of the child’s parents, but in certain situations, a court may appoint a guardian if it deems it necessary for the welfare of the child.

Court’s Jurisdiction

The Act empowers the court to appoint or declare any person as a guardian of a minor. The court has the authority to make decisions regarding the custody and education of the minor.

Custody Orders

 The court can pass orders regarding the custody of the minor, specifying whether the custody should be given to one or both parents or any other person deemed fit.

Revocation of Appointment

The court also has the authority to revoke or modify the appointment of a guardian if it finds that such a decision is in the best interests of the minor.

 

The Guardians and Wards Act, 1890, is an important legal instrument to protect the rights and well-being of minors in India. It provides a legal framework for resolving disputes related to the custody of children and ensures that decisions are made with the child’s welfare as the paramount consideration.

 

The Juvenile Justice (Care and Protection of Children) Act, 2015
The Juvenile Justice (Care and Protection of Children) Act, 2015, is a comprehensive legislation enacted by the Government of India to address the issues related to juvenile justice and the care and protection of children. This Act replaced the Juvenile Justice (Care and Protection of Children) Act, 2000, and it focuses on a child-centric approach, emphasizing the rights and welfare of children in conflict with the law as well as those in need of care and protection.

 

 Capacity Under Juvenile Justice Act, 2015

1. If a child is orphaned, abandoned, or surrendered, a couple or a single parent can adopt.
2. Provisions of the Hindu Adoption and Maintenance Act do not apply in such cases.
3. Child Welfare Committee can declare a child free for adoption.
4. Children above the age of 18 years can be adopted.
5. Prospective Adoptive Parents should be physically fit, financially sound, highly motivated, and mentally alert.
6. Consent of both spouses is required for couples, and a single male is not eligible to adopt a girl child.
7. Only stable couples in a marital relationship for at least two years are eligible to adopt.

 

The adoption process involves submitting required documents, obtaining an adoption order from the court, and completing the procedures described under Section 61 of the Juvenile Justice Act, 2015.

 

Major drawbacks of the adoption procedure in India

While the adoption procedure in India has evolved to address the needs of orphaned, abandoned, and surrendered children, there are still some challenges and drawbacks in the system. Some of the major drawbacks include:

 

1. Lengthy and Complex Process

 The adoption process in India can be lengthy and complex, involving multiple stages such as registration, documentation, home study, and court procedures. The bureaucratic nature of the process can lead to delays.

 

2. Inconsistencies Across States

 Adoption procedures may vary across different states, leading to inconsistencies in the application of adoption laws. This can create confusion for prospective adoptive parents.

 

3. Limited Availability of Children for Adoption

The demand for adoption often exceeds the supply of available children. Some prospective adoptive parents may face challenges in finding suitable matches within a reasonable timeframe.

 

4. Preference for Male Children

 In some regions and communities, there may still be a preference for male children, leading to challenges for prospective adoptive parents seeking to adopt female children.

 

5. Stigma and Social Taboos

Despite efforts to raise awareness, there may still be social stigmas and taboos associated with adoption. This can discourage some families from considering adoption as an option.

 

6. Limited Information on Children

 Prospective adoptive parents may have limited information about the child’s background, health history, and genetic factors. This lack of information can be a concern for parents wanting a comprehensive understanding of the child’s medical and family history.

 

7. Challenges in Inter-Country Adoption

 While inter-country adoption is permitted, there can be challenges related to coordination with the adoption authorities of other countries, and the process may be more complex than domestic adoption.

 

8. Age and Eligibility Restrictions

 There are age and eligibility criteria for prospective adoptive parents, which may restrict some individuals or couples from adopting. Single men are generally not eligible to adopt female children.

 

9. Limited Resources and Support

 Some adoption agencies and State Adoption Resource Agencies (SARAs) may face resource constraints, leading to a lack of support services for adoptive families.

 

10. Post-Adoption Support

 While there is recognition of the importance of post-adoption support, there may be limitations in the availability of such services for adoptive families dealing with issues like adjustment, bonding, and parenting challenges.

 

Efforts are continuously being made to address these drawbacks and improve the adoption process in India. Legal reforms, awareness campaigns, and the use of technology are some measures aimed at making the adoption system more efficient, transparent, and supportive for all parties involved.

 

 Conclusion

While there have been significant improvements in adoption laws for Hindus, challenges persist for Muslims and other religions due to the absence of a uniform civil code on adoption. Implementing a uniform civil code could address these challenges, allowing parents from all religious backgrounds to legally adopt children. This would not only improve the legal status of adoption but also contribute to the well-being and future prospects of parent-less children, ensuring they receive proper care, protection, and education.

 

References

1. This article was written by  Qwerty9729 published on Legal Service India E-journal WEBSITE https://www.legalserviceindia.com/ 
2. This article was written by   Satarupa Ghosh  published on Legal Service India E-journal WEBSITE https://www.legalserviceindia.com/ 
3. This article was published on India Law Office WEBSITE https://www.indialawoffices.com/