This Article has been written by Ms. Ziya Praveen, a third year law student of Unity Pg & law College Affiliated by University of Lucknow

ABSTRACT

This document aims to give a general review of the adoption regulations that are in place in India. The Hindu Adoption and Maintenance Act, 1956 was the only law at first that controlled adoption procedures and laws in India for Jains, Buddhists, Sikhs, and Hindus. On the other hand, the Guardianship and Wards Act of 1890 granted guardianship of a child to Muslims. The government introduced the Juvenile Justice (Care and Protection) Act later in 2000 in an effort to streamline the process of adoption as a whole.

n order to assist discarded neglected, or abandoned children with a suitable family, the JJ Act of 2015 established many updated by the government, regarding the adoption process. The Hindu Adoption and Maintenance Act was superseded by the JJ Act’s adoption rules, which did not replace it. Additionally, this article attempts to describe the entire process of a valid adoption as well as additional procedures that must be taken. Even with the government’s ongoing efforts, there are still gaps in India’s adoption legislation. Here, the shortcomings of India’s current legal system and adoption procedure are examined.

INTRODUCTION

In the legal process of adoption, an individual or a couple can legally adopt a child who is not their biological relative. In addition to giving a child a secure and loving home, adoption may be a rewarding experience for the adoptive parents.

The Hindu Adoption and Maintenance Act, 1956 (HAMA) and the Juvenile Justice Act, 2015 (JJA) are the primary legislation that control adoption in India. Depending on the religion, nationality, and marital status of the adoptive parents and the child, these laws have varying adoption eligibility requirements and procedures.

 In addition to not having any other living biological or adopted children of the same gender, the adoptive parents must be at least 21 years older than the child. Unless the spouse is found to be incapable by the court, married individuals must obtain their spouse’s consent. The biological parents or a close relative must give and take the child for adoption; the youngster must be under 15 years old. Once the adoptive parents carry out a ritual known as Datta Humam, which moves the child from the biological family to the adoptive family, the adoption is considered final.

All Indian nationals who wish to adopt a child who has been abandoned, relinquished, or is an orphan must comply with JJA, regardless of their religious beliefs. Foreign nationals and non-resident Indians (NRIs) who wish to adopt a child from India must also abide by JJA. JJA permits adoption by both single and married individuals, but only up to a total of two children. The adoptive parents must be older than 55 years old, and they must be at least 25 years older than the child. Unless they are ordered to be separated by a court order, married people must obtain their spouse’s consent. The child must be less than eighteen and the Child Welfare Committee must declare them legally free for adoption. Once the adoptive parents receive a court decree from the appropriate authority granting the adopted kid the rights and obligations of a biological child, the adoption is considered finalized.

Even though the adoption procedure in India can be difficult and drawn out, its goal is to protect the child’s welfare and best interests. The Central Adoption Resource Authority (CARA) webpage is where adoptive parents must register. CARA is the central organization for adoption in India. They must submit a number of documents and go through a home study conducted by a professional adoption agency. They must select a child from the waiting list and have a face-to-face meeting with the child. They need to get the required permissions and certificates, as well as finish the legal requirements. Until the adoption completes, they must follow up with the agency and the authorities.

HINDU ADOPTION AND MAINTANCE ACT, 1956 (ADOPTION BY A MAN, HAMA SECTION 7)

A man who satisfies the requirements listed below may adopt a child in accordance with section 7 of the HAMA. if the man is a major, only. The guy should only be free from lunacy or stupidity if he is of sound mind.   Before adopting a kid, the man needs his wife’s approval. In the event of a divorce, the male does not need his wife’s consent; but, in the event of a judicial separation, the man must obtain her approval., Before he can proceed with the civil adoption, the consent must be acquired. Unless the court finds that the spouse is incapable of giving informed consent, the spouse’s permission is required.

(ADOPTION THROUGH A FEMAL, HAMA SECTION 8)

A woman who meets the requirements listed below is qualified to adopt a child under section 8 of the HAMA. The woman can only adopt a kid if she is a major, regardless of her marital status. In the event that a woman marries after adopting a kid, she continues to be the child’s biological mother and her spouse takes on the role of stepfather, if she is of sound mind, that is a woman wishes to adopt a kid, she must be single, have a dissolved marriage, or have completely given up on life. Even though she is the mother of an illegitimate child, an unmarried woman can adopt a child. as a result, the requirements listed above must be met in order for the adoption to be considered legitimate.

ADOPTION IN ACCORDANCE WITH HAMA, THE HINDU ADOPTION AND MAINTENANCE ACT OF 1956

The Hindu Adoption and Maintenance Act of 1956 governs the adoption procedure for Hindus, including Sikhs, Jains, and Buddhists. But the HAMA does not apply to other religions, like Christians, Muslims, or Parsis. These are the people who are able to adopt and be adopted.

Under this Act, an adopted Childrens have rights are equivalent to those of a biological child. A parent may adopt a child of the opposite gender if they already had a biological child. The International Law Journal states that if a woman adopts a male child, she must be 21 years older than the adopted child. However, any male parent adopts a female child, they must be at least 21 years older than the adopted child. Adoption is regarded as irrevocable under this Act.

THE GUARDIANS AND WARDS ACT,1890

The regulations of the personal faiths of Muslims, Jews, Christians, and Parsis do not apply to the notion of adoption. A person who wishes to become a parent may do so under the Guardians and Wards Act, and the guardianship will last until the kid turns 21. Therefore, the parents are not granted full adoption rights under this Act. The Act only grants the parent and kid the connection of guardian and ward. This act does not grant the parents any biological rights to their kid, in contrast to the HAMA.

THE JJ ACT, ALSO KNOWN AS THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000

This Act’s Section 2(aa) discusses the definition of adoption. In 2000, the parliament passed the JJ Act, which offers safeguards and protections for children. All religious groups, including Christians, Jews, Sikhs, Buddhists, Parsis, Hindus, Muslims, and Jains, are covered by the provisions of this Act.

 The JJ Act had numerous amendments in 2006, 2015, and most recently in 2021, resulting in significant modifications to the parent Act. The JJ Act, which was passed in 2015, gave India’s adoption laws entirely new aspects. The Hindu Adoption and Maintenance Act, 1956, and the Guardians and Wards Act were not superseded by the adoption provisions outlined in the JJ Act didn’t replace the Guardians and Wards Act of 1890 and the Hindu Adoption and Maintenance Act of 1956, but it did surpass them.

THE CENTRAL RESOURCE AUTHORITY FOR ADOPTION (CARA) 

An independent authority was established by the Indian government to handle adoption-related issues in the country. On June 29, 1990, the Ministry of Social Justice and Empowerment established the organization, CARA is in charge of handling both domestic and international adoption. CARA primarily handles the adoption of abandoned, relinquished, and orphaned children.

 As a certified Central Authority, this autonomous agency operates in accordance with the guidelines outlined in the 1993 Hague Convention on Inter-Country Adoption, which the Indian government corrected in 2003.

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 365 days.
5. Three newly taken family photos.
6. The adoptive child must give written approval if the youngster is older than seven years old.
7. Two letters of recommendation must be provided by anyone who knows the adoptive family. Spouses shouldn’t be the ones writing the letters.

CASE LAWS

SAWAN RAM VS KALAWANTI 

In this instance, the departed left his widow with a number of properties and a little portion of his wealth. Following her husband’s death, the widow donated some of her holdings to his grandniece and mortgaged others to a private party. The appellant filed a complaint, claiming that as he is a close cousin of the dead, the property should have been awarded to him and that the transfer of the land and the mortgage were unlawful. But since the widow adopted a kid while the case was still underway, the lawsuit was unsuccessful.

Following the widow’s passing, the appellant filed a new application for the property shares, claiming that the child’s adoption was fictitious and that he doesn’t have all property rights. The court decided that an adopted kid of a widow would be regarded as a member of the deceased husband’s family under Hindu adoption law. In the same way that an adopted child loses all rights from their biological family, they also get privileges and rights from their adoptive family. As a result, the court dismissed the appellant’s case.

MUHAMMAD ALI KHAN VS. MUHAMMAD ISMAIL KHAN

In this instance, the court ruled that the adoption systems under Hindu and Muslim law differ significantly. Recognizing one’s fatherhood is seen as the closest thing to adoption in Muslim law.

 CONCLUSION

Adoption is a thoughtful and compassionate deed that has the power to change the lives of adoptive parents and adopted children. Nonetheless, adoption regulations in India vary widely throughout tribes and faiths. This presents difficulties on a legal and social level for both the adopted children and the potential adopters, particularly in instances of international and interreligious adoption. Furthermore, India’s adoption regulations do not adhere to international agreements and guidelines regarding the welfare and rights of children. In order to protect the best interests of the adoptive parents and the child, a consistent civil code for adoption is required, regardless of the adoptive parents’ ethnicity, caste, or religion. A code like this can also stop unethical and illegal child trafficking, abandonment, and as well as abuse. A unified civil law.

References

 Acts & Statues:

1. The Guardianship and ward Act, 1890.
2. The Juvenile Justice (Care and Protection of Children) Act,2006.
3. The Juvenile Justice (care and Protection of children) Act,2015.
4. The Hindu Adoption and Maintenance Act of 1956 
5. Act of 2006 Concerning Juvenile Justice (Care and Protection of Children).

Books:

1. Dr, Paras Diwan Hindu law (Allahabad Law Agency)
2. Prof Kusum, Family Law (LexisNexis Publication,4th edition)

Article& Website

1. Issue and challenges, at: http://www.legalserviceindia.com/legal/article-adoption-issues)
2. The following link provides all the information you require about Adoption and Maintenance under Hindu Laws: https://blog.ipleaders.in/hindu-adoption-maintenance/ (March 22, 2023) visited.
3. Accessible at https://blog.ipleaders.in/procedure-for-adoption-under-the-juvenile-justice-care-and-protection-of-children-act-2015/, the Juvenile Justice (Care and Protection of Children) Act, 2015 was last visited on March 23, 2023.
4. The Hindu Adoption and Maintenance Act of 1956 
5. Adoption: Problems and Difficulties, accessed on March 21, 2023, from https://www.legalserviceindia.com/legal/article-5828-adoption-problems-and-challenges.html.