This article has been written by Gaurangi, a 3rd year BA.LL.B student from LLOYD LAW COLLEGE

 

INTRODUCTION

Adoption is a legal process where individuals or couples assume the parenting responsibilities for a child and become their legal parents. It’s a way of providing a permanent family and home for children who, for various reasons, cannot be raised by their biological parents. Adoption can be a beautiful and rewarding experience for both the adoptive parents and the child, creating a new and loving family for children in need. India’s adoption landscape reflects years of advocacy and child welfare efforts, evident in government laws and policies. These concerted initiatives showcase a commitment to creating a supportive framework for adoption, emphasizing the importance of providing stable and loving homes

 

HISTORICAL VIEW ON INDIAN ADOPTION

Adoption in India boasts a rich history spanning thousands of years, deeply intertwined with the fabric of Hinduism, the predominant religion. Ancient texts such as the Ramayana and Mahabharata narrate tales of saints and royals engaged in adoption—highlighting its cultural significance. In a historical context, when faced with a lack of male heirs, couples turned to adopting male children, securing a legal lineage and inheritance. Hindu tradition places immense importance on progeny, believing that a deceased parent’s soul can attain salvation only through the presence of a son to perform memorial ceremonies.

The concept of adoption in Hinduism extends beyond mere familial continuity; it is intricately linked to spiritual practices. The lighting of the memorial service fire, a ritual performed by a son, is seen as essential for the deceased parent’s journey to the afterlife. Moreover, the perpetuation of familial heritage and ancestral rites is entrusted to the adopted children, who are expected to provide the necessary offerings and rituals.

Delving into the historical adoption practices of two ancient civilizations reveals a profound motive behind adoption—a commitment to lineage, heritage, and spiritual continuity. The stories embedded in these ancient texts serve as a testament to the enduring cultural and religious significance of adoption in India, reflecting a timeless acknowledgment of the importance of family, legacy, and the interconnectedness of generations.

As per Manu, “An adopted son shall not at all take the family name and property of his natural father, the burial ceremony goes after the family name and the property the burial sacrifice of him who gives the son in adoption quit as far as that son is worried.”

ADOPTION UNDER ENGLISH LAW:-

English law began identifying adoption in the 19th century but legal adoption came into existence in 1956 the objective of this adoption act was to stop biological parents from asserting their children. English law of adoption is very close to Hindu law of adoption as it also lies that the adopted child, for all intention and motive, becomes like a natural born child.

 English law of adoption is very close to the Hindu Law of Adoption insofar as that it puts down that the adopted child, for all the intention and motive, becomes like an organic child and the child’s binds with his natural family are received. It also recollects the intercountry adoption and approval by the International Convention on Adoption.

MODERN ADOPTION LAWS

The inception of modern adoption laws traces back to the aftermath of the First World War. Numerous children, either abandoned by their parents or separated from their biological families due to war-related events, faced adversity. The pioneering adoption legislation emerged in England and Wales with the Adoption of Children Act 1926. Mandating consent from both biological and adoptive parents, the law granted adopted children comparable rights to those of biological offspring but fell short of ensuring their complete integration into adoptive families or securing inheritance rights within birth families. Post-World War I, countries globally enacted adoption laws, often amending existing legislation from the 1940s to the 1980s. Some nations revised adoption laws to accommodate novel forms of adoption, reflecting evolving societal perspectives on family structures and child welfare.

ADOPTION LAWS IN INDIA:

Hindu Adoption and Maintenance Act, 1956: Adoption in Indian Law falls under personal laws and is governed by various legislations. The Hindu Adoption and Maintenance Act, 1956, specifically applies to Hindus, including Buddhists, Jains, and Sikhs, but excludes Muslims, Parsis, Jews, and Christians. Eligibility for adoption includes a mentally sound, non-minor male Hindu, capable of adopting a child with the mandatory consent of his spouse if married. Unmarried or legally separated females, as well as those whose husbands are deceased or declared incompetent, can adopt a child.

If there’s an existing biological child in the family, adopting a child of the opposite sex is allowed. In cases of a female adopting a male child, the female must be at least 21 years older than the son, and in cases of a male adopting a female child, the male must be at least 21 years older than the daughter. The adopted child holds the same rights as a biological child, and adoptions under this Act are irrevocable.

 

Guardians and Wards Act, 1890 : In India, there is no overarching law for adoption, and personal laws for individuals following religions such as Islam, Christianity, Parsi, and Judaism do not recognize complete adoption. Instead, under this Act, individuals seeking parenthood can become guardians of a child until the child turns 21. However, this act does not grant adoptive rights, establishing only a Guardian-Ward relationship between the child and the guardian. Unlike the Hindu Adoption and Maintenance Act, 1956, this Act does not bestow the adopted child with the status of a biological child.

The Juvenile Justice (Care and Protection of Children) Act, 2000: To safeguard the interests of vulnerable children, India’s Parliament enacted the Juvenile Justice (Care and Protection) Act in December 2000. Amendments, reflecting increased sensitivity to children’s needs and rights, have been incorporated. The 2006 version expanded the definition of children in need of care and protection, encompassing abandoned, surrendered, begging, street, and working children. Notably, there is no religious barrier to adoption under this Act. Applicable to all Indian citizens, the legislation aims to facilitate adoptions in a child-friendly manner.

Central Adoption Resource Authority (CARA).: CARA, established on June 20, 1990, operates as an autonomous body under the Ministry of Social Justice and Empowerment, Government of India. Its primary mandate is to oversee all matters related to adoption in India. Functioning as the Central Authority for inter-country adoptions, CARA regulates both in-country and inter-country adoption processes for orphaned, abandoned, and surrendered children through recognized adoption agencies. It operates by the Hague Convention on Inter-country Adoption, ratified by the Government of India in 2003.

WHO CAN ADOPT A CHILD?

According to section 7 of the Hindu Adoption and Maintenance Act, 1956, any Hindu male can adopt a child:

1.  Who is a major
2. Who is of sound mind.
3. He shall adopt any child only with the consent of his wife, if living at that time, In the case of divorce consent is not necessary but in the case of judicial separation, consent would be necessary.
4. The consent must be obtained before the civil adoption takes place.
5. 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 any one of them is unnecessary for any of the reasons specified in the preceding provision.

In the case of Bholooram & Ors. Ramlal & Ors AIR 1989 MP 198 The question raised was whether the consent of all the wives is necessary if a person has more than one wife living at the time of adoption.

The ruling established that if a wife has disappeared to an undisclosed location, it cannot be considered her legal death unless the conditions outlined in Section 107 of the Evidence Act are met. As long as a woman is recognized as a legal wife, her consent remains a requisite for the legitimacy of adoption according to Section 7 of the Hindu Adoption and Maintenance Act (HAMA).

AAccording to section 8 of the Hindu Adoption and Maintenance Act 1956, any Hindu female can adopt a child:

1. Who is a major
2. She is of sound mind.
3. To adopt a child she must be unmarried or in case if married, then her marriage should have been dissolved or her husband is no more or has completely renounced the world.
4. Which therefore brings into place the gender biases in the adoption laws.
5. Adoption by an unmarried can also take place even though she is having an illegitimate child.

The conditions for who can be adopted are as under:

1. he or she is a Hindu

 

2. he or she has not already been adopted;

3. he or she has not been married, unless there is a custom or usage applicable to the parties that permit persons who are married to be taken in adoption;

4. he or she has not completed the age of fifteen years unless there is a custom or usage applicable to the parties which permit persons who have completed the age of fifteen years to be taken in adoption.

MAJOR CHALLENGES IN ADOPTION IN INDIA:

There are a lot of challenges that are faced by people while adopting a child in India. Some of the major challenges are:

1. Lengthy and complex adoption process: Adoption in India can be a prolonged and overly bureaucratic process. According to CARA, more than 30,000 hopeful parents are awaiting adoption, yet only 2,131 children are legally available. Additionally, about two-thirds of these children have special needs, and it typically takes an average of three years to finalize the adoption process.

1.  Illegal and unregulated practices: India has witnessed troubling cases of illicit adoption practices, such as the trafficking and sale of babies. Unregistered adoption agencies have taken advantage of vulnerable children and biological parents. A noteworthy example occurred in 2018 when Mother Teresa’s Missionaries of Charity faced accusations related to a “baby-selling racket.”

1. Returning Children after adoption: India has witnessed a concerning pattern of adoptive parents returning children they had previously adopted. According to CARA’s 2020 report, more than 1,100 children adopted nationwide were returned to childcare institutions by their adoptive parents within the last five years.

 

1.  Disability and adoption: Children suffering from disability are not being adopted by the people. Data shows that only 40 children were adopted in 2018-19 with a disability, which is 1% of the total adoption. Annual trends reveal that the adoption of children having special needs is dwindling every passing year.

 

WAY FORWARD:

1. Children need to be prioritized: The primary purpose of giving the adoption of the child is to provide him/her a family and family rights and his/her welfare. CARA and the ministry need to prioritize the overlooked and at-risk community of children silently enduring hardships within our institutions.
2. Strengthening the adoption laws: There is no universal law in India. India should reconsider and modernize adoption laws to enhance transparency and efficiency. This may include simplifying paperwork, minimizing delays, and addressing any ambiguities or loopholes in the current legislation.
3. Post-Adoption Services: Establishing thorough post-adoption support services is essential to aid both adoptive parents and adopted children. These services could encompass counseling, educational assistance, healthcare access, and guidance for navigating challenges that may arise throughout the adoption process.

1. Awareness and adoption: Raising awareness about adoption as a viable means of forming families is vital. This involves educating the public about the advantages, processes, and legal facets of adoption. It’s crucial to foster positive perspectives on adoption and debunk any misconceptions or stigmas linked to it.

1. Adoption process needs to be simplified: Simplifying the adoption process requires a thorough review of the regulations governing the procedure. The ministry should collaborate with experts in the field to gather feedback on the practical challenges faced by prospective parents.

CONCLUSION:

Child adoption in India plays a crucial role in offering children nurturing homes and prospective parents the chance to create families. Despite its noble intent, the adoption process grapples with challenges, including its complexity and instances of illegal practices. Recent strides, exemplified by the Adoption Regulations-2022, indicate positive steps toward improvement. However, a more extensive reform is imperative to safeguard the child’s best interests throughout the adoption journey.

The multifaceted challenges encompass bureaucratic intricacies and instances of illegal adoption practices, such as trafficking and child-selling. The Adoption Regulations-2022 present a positive move, potentially addressing some procedural concerns. Yet, a comprehensive overhaul is essential to streamline the process, enhance transparency, and mitigate delays. This involves simplifying paperwork, addressing ambiguities in legislation, and ensuring stringent measures against illegal practices.

Moreover, promoting awareness about adoption is crucial, dispelling misconceptions and fostering positive attitudes toward this alternative family-building method. Collaborating with experts to understand and alleviate the practical difficulties faced by prospective parents can further refine the adoption landscape. Ultimately, ongoing efforts are vital to create an adoption framework that prioritizes the welfare and best interests of the children involved, paving the way for more seamless and ethical adoptions in India.

REFERENCES:

Bare Acts:

Hindu Adoption and Maintenance Act, 1956

Guardian and Wards Act, 1890.

The Juvenile Justice (Care and Protection of Children) Act, 2000

Central Adoption Resource Authority (CARA).

 

ARTICLES:

https://www.legalserviceindia.com/legal/article-5828-adoption-issues-and-challenges.html

https://www.drishtiias.com/daily-news-analysis/child-adoption-in-india/print_manually

https://blog.ipleaders.in/adopting-child-hindu-law/

https://www.ejusticeindia.com/child-adoption-in-india-issues-and-challenges/