Child Adoption in India: A Comprehensive Study

By | July 23, 2021
Child-Adoption-in-India-A-Comprehensive-Study-LBA

Child adoption is bliss, having a child is the greatest joy a parent can have. Adoption appears to be the most efficient method of obtaining this happiness. It seems like a cure for those who desire to alleviate the situation of children.

Adoption may be a wonderful choice not only for single parents and childless couples but also for children, i.e. the children who are homeless. It permits the formation of a parent-child bond amongst people who have neither met before nor are genetically connected.

The Hindu Adoption and Maintenance Act, 1956(hereinafter referred to as ‘HAMA’) is the sole personal legislation in India governing adoption. Other personal laws, such as Muslim, Parsees, and Christian, have no allowance for adoption. This article sheds insight on further clauses of legislation pertaining to adoption, as well as the gaps and flaws in such acts, also describes the role of the courts in influencing the adoption landscape in India.

Introduction

Section 5, The Hindu Adoptions and Maintenance Act,1956

Adoption is the lawful transfer of a child. In general, new couples want to adopt a kid rather than have a child of their own. As we can see, orphanages in India are overcrowded with orphans who have no parents to care for them. Today, several parents are giving birth to a baby girl and then toss her away without a second thought.

This type of crime is becoming more prevalent by the day. People in today’s age, too, do not see the importance of a girl child despite having a high level of education. Half of the world’s children are orphans, without legal parents to care for them. Adoption is the most effective approach to provide children with a happy life.It also contributes to the country’s population stability.

Hence, new couples of our generation are working on this matter by adopting the child and give them a better life. Although there are several requirements that both the biological and adoptive parents must meet, failing to do so renders the adoption null and void.

There are prerequisites for both: Who can adopt a child? And Who is eligible for taking in adoption?

Section 7, The Hindu Adoption and Maintenance Act,1956

Section 7 of HAMA defines that, any Hindu male, can adopt a child if he fulfills the following conditions:

  1. He is a major.
  2. He is of sound mind, which means he is not insane or psychotic.
  3. He may only adopt a child with the approval of his wife, if she is still alive at the time. Approval is not required in the event of divorce, but it is required in the case of judicial separation.
    • Prior to the civil adoption, the permission must be acquired.
    • If a person has more than one wife living at the time of adoption, the permission of all spouses is required unless any one of them is superfluous for any of the reasons described in the preceding article.

In the case Bholooram & Ors. v. Ramlal & Ors.[1], if a person has more than one wife living at the time of adoption, the question was raised as to whether the permission of all spouses is required.

It was therefore decided that if a woman absconds to an unknown location, it cannot be interpreted as her death in the eyes of the law unless the conditions of Section 107 of The Indian Evidence Act, 1872 are met. Section 7 of the HAMA requires a woman’s permission for the adoption to be legitimate as long as she remains a wife in the eyes of the law.

Section 8, The Hindu Adoption and Maintenance Act, 1956

Section 8 of the HAMA, any Hindu female can adopt a child if she satisfies the following requirements:

  1. She is a major.
    • A woman gains the ability to adopt after the age of eighteen, even if she is unmarried.
    • If she marries after the adoption, her spouse will become her stepfather, and she will continue to be the adoptive mother as before.
  2. She is of sound mind.
  3. To adopt a kid, she must be single or, if married, her marriage must have been dissolved or her spouse must be deceased or have fully forsaken the world.

As a result, gender biases in adoption laws are introduced.

Adoption by an unmarried woman is also possible, despite the fact that she is the mother of an illegitimate child.

Who is eligible to Adopt a Child in India?

  1. An Indian citizen, an NRI, or a foreign citizen can adopt a child in India. The adoption process differs for each of the three.
  2. Anyone, regardless of gender or marital status, is able to adopt.
  3. If a couple is adopting a child, they must have been married for at least two years and have reached a common decision to adopt the kid.
  4. The child’s and adoptive parents’ ages should not be fewer than 25 years apart.

When can A Child be Eligible To Be Adopted?

  1. According to the Central Government of India’s rules, any orphan, abandoned, or surrendered child who has been officially proclaimed free for adoption by the child welfare committee is eligible for adoption.
  2. When a child lacks a legal parent or a guardian, or when the parents are no longer capable of caring for the child, the child is said to be an orphan.
  3. When a child is deserted or unaccompanied by parents or a guardian and the child welfare committee declares the child to be abandoned, the child is deemed abandoned.
  4. A surrendered child is one who has been relinquished due to physical, social, or emotional factors beyond the control of the parents or guardians, as determined by the child welfare committee.
  5. A child must be “legally free” in order to be adopted.

When the District Kid Protection Unit receives an abandoned child, it publishes a notice in state media with the child’s image and details and asks the local police to locate the parents. Only when the authorities have issued a report declaring that the kid’s parents are untraceable is the youngster deemed legally free for adoption.

How to Adopt a Child in India?

The adoption process in India is controlled by a number of laws[2]and compliance is monitored by the Central Adoption Resource Authority (CARA)[3].

The processes for adopting a child in India are as follows:

Step 1 – Registration

Prospective adoptive parents must register with an approved agency. The agencies that are permitted to make such registrations in India are Recognized Indian Placement Agencies (RIPA)[4] and Special Adoption Agencies (SAA)[5]. Prospective adoptive parents can go to their local Adoption Coordination Agency, where a social worker will explain the procedure and walk them through the legalities, paperwork, and general preparation necessary for registration.

Step 2 – Home Study and Counselling

A social worker from the registration agency will conduct a home study at the potential adoptive parent’s home. The agency may also need potential parents to undergo counselling sessions in order to understand their motivation, preparedness, strengths, and shortcomings.

According to CARA regulations, the home study must be completed within three months after registration. The findings of the home study and counseling sessions are subsequently presented to the court.

Step 3 – Referral of the Child

When a child is prepared for adoption, the agency will notify the prospective parents. The agency will provide medical records, medical examination results, and other pertinent information with the parents, as well as let them spend time with the child after they are satisfied with the information provided.

Step 4 – Acceptance of the Child

Once the parents feel at ease with a child, they will be required to sign a few paperwork related to the child’s acceptance.

Step 5 – Filing of Petition

All required documents are sent to a lawyer, who writes a petition to be submitted to the court. When the petition is complete, the adoptive parents must appear in court and sign it in front of a court officer.

Step 6 – Pre-Adoption Foster Care

After the petition is signed in court, the adoptive parents can take the child to a pre-adoption foster care center and learn about the child’s habits from the nursing staff before taking the child home.

Step 7 – Court Hearing

The parents, along with the child, must appear in court. The hearing takes place in a closed room with a judge present. The court may ask a few questions and specify the sum that must be invested in the child’s name.

Step 8 – Court Order

The judge will issue adoption orders after the receipt for the investment is produced.

Step 9 – Follow Up

Following the adoption, the agency is required to make follow-up reports to the court on the child’s well-being. This might last for 1-2 years.

Can Parents Ask for a Specific Child?

Adoptive parents cannot request the adoption of a specific child, therefore if you are just searching for newborn infant adoption, it may be impossible. They may, however, express their choices, which may include:

  • Age
  • The child’s gender
  • Skin tone
  • Condition of health (parents can specify if they want to adopt a child with a physical or mental disability)
  • Religion

When preferences are provided, it may take longer to match a child of your choosing because the conditions restrict the pool of children available for adoption.

Child Adoption Laws In India

  1. Hindu Adoption And Maintenance Act, 1956:-
    • In this Act only Hindu, Jain, Sikh, and Buddhist parents can legally adopt their child and grant them complete rights to inherit property. There is only one disadvantage: they cannot adopt a child of the same sex as their own.
    • In actuality, the Hindu Adoption and Maintenance Act applies to anybody living in India who is not a Christian, Muslim, Parsees, or Jew.
  2. Guardianship And Wards Act, 1890:-
    • GAWA is applicable to Parsees, Christians, and Muslims since they do not have personal laws, and as a result, they cannot adopt the child but are just the guardian in this act, and the child has no right to inherit the property.
    • Furthermore, when he or she reaches the age of 21, he or she is deemed to have a separate identity.
  3. Juvenile Justice (Care & Protection of Children) Act, 2000:-
    • This Act[6] is applicable to all Indian nationals. It grants the status of parents rather than guardians, although, in this situation, the child must get particular care in order to be reformed as a good citizen of the nation.

Adoption under Muslim Law

Adoption is the transplantation of a boy from his birth family into another family by a gift given by his natural parents to his adoptive parents. Adoption is not permitted in Islam. It was decided in Muhammed Allahabad Khan v. Muhammad Ismail[7] that there is nothing in Mohammedan law that is comparable to adoption as recognized in the Hindu system.

Under Muslim Law, acknowledging paternity is the closest thing to adoption. The primary distinction between the two is that in adoption, the adoptee is the known son of another person, but one of the requirements of acknowledgement is that the acknowledgee not be the known son of another.

However, an adoption from an orphanage can take place with the consent of the court under the Guardians and Wards Act.

Adoption under Parsees and Christian laws

Personal laws of these regions do not recognize adoption, but an adoption from an orphanage can take place by getting authorization from the court under the Guardians and Wards Act. A Christian does not have adoption legislation. Adoption is an issue of personal law since it is a lawful relationship of a child. Christians do not have adoption laws and must go to court under the Guardians and Wards Act of 1890.

The National Board on Women has emphasized the need of having a consistent adoption legislation. Christians can only take a child into foster care under the stated Act. When a kid in foster care reaches the age of majority, he is free to cut all ties. Furthermore, such a child has no legal right to inherit.

Conclusion & Suggestions

As a result, unlike Hindus, Christians, Buddhists, and Sikhs, groups comprised of Muslims, Parsees, and any other community cannot adopt a child since they lack personal law governing adoption. Adoption is a procedure in which a child receives parents and a parent who is childless receives a child.

After the adoption is finalized, the adopted child has full rights in the adoptive parents’ household, a portion of the property comparable to that of the biological child, and no rights to interfere with the biological parents’ affairs or property rights. Furthermore, once an adoption is finalized, it cannot be reversed.

The Hindu Adoption and Maintenance Act of 1956 addresses all aspects of adoption and imposes criteria on a person, only after which a kid can be adopted by a male/female/or both. The statute makes it clear who can adopt a child and who can be adopted.

From an examination of the HAMA, it is obvious that several parts of the act are prejudiced towards women, since it does not enable a Hindu married woman to adopt a child even with the approval of her husband, but a husband can do so with the consent of his wife.

This clause is relatively discriminatory towards women; while there have been numerous developments and changes in this legislation, gender prejudice still exists in adoption regulations. Along with the elimination of gender prejudice, there is a need for universal adoption rules so that there is no religious discrimination in adoption and that all people have equal status and equal rights.


Reference

[1] Bholooram & Ors. v. Ramlal & Ors., AIR 1989 MP 198

[2] Central Adoption Resource Authority Guidelines, Available Here

[3] Central Adoption Resource Authority, Available Here

[4] Recognized Indian Placement Agencies, Available Here

[5] Special Adoption Agencies, Available Here

[6] The Juvenile Justice (Care & Protection of Children) Act, 2000, Available Here

[7] Muhammed Allahabad Khan v. Muhammad Ismail (1886) ILR 8 All 234


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