CHILD ADOPTION LAW IN INDIA – A STEP BY STEP GUIDE
Children are believed to be a cluster of joy and the future of the country depends on them. Meanwhile children born in India are being pampered, taken care of and given all the necessities for their all-round development, whereas on the other hand there are over 60,000 children being abandoned per year in India. It is a very sad state that in some cases, these children become victims of human trafficking and sexual violence cases, whereas in many fortunate cases children are taken to an adoption agency and they may hope for a better life while waiting to get adopted.
In this blog, I shall discuss about the child adoption law in India and its step by step guide.
WHAT IS ADOPTION?
The permanent legal transfer of all parental rights from one person to another person or couple is called Adoption. There is no difference between the rights of adoptive parents and the biological parents and an adopted children have all of the social, legal, emotional and kinship benefits of biological children.
ADOPTION IN INDIA
The practice and custom of adoption in India dates back to the ancient time. Though the objective with which the act is carried has differed but the act of adoption still remains the same. Predominantly, adoption was considered as a sacramental act. There has been an acute controversy not only among the writer but also among the judges whether adoption is having a secular motive which predominates or the religious motive predominates.
Under the old Hindu Law, there were many rules relating to adoption which could be supported only on the basis that adoption was a sacramental act. In the presence of submission Hindu Adoption & Maintenance Act, 1956 has starred of clearly from all the religious and sacramental aspects of adoption and has made adoption a secular institution. All adoptions after 1956 are secular and valid and for the validity must confirm the requisite of the act.
Moreover, adoption is not permitted in the personal laws of Muslim, Christian, Parsi’s and Jews in India. Perhaps, they usually opt for guardianship of a child through the Guardianship and Wards Act, 1890.
Citizens of India who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a child. The Hindu Adoption and Maintenance Act of 1956 was enacted in India as a part of the Hindu Code Bills. It resulted into bringing a few reforms that liberalized the institution of adoption.
Hindu law is the only law which addresses an adopted child as being compeer to a natural child because of the belief that a son was indispensable for spiritual as well as material welfare of the family.
Earlier, Hindu law allowed only male to be adopted and restrictions were imposed on Caste and Gotra. Under Hindu law, female child could not be adopted. Moreover, only the male had a right to adopt and the dissent of his wife was immaterial.
With the passage of time, such restrictions have changed. Gender biases have reduced to a great extent in today’s modern society. At present, under modern Hindu law, every Hindu male or female has the capacity to make an adoption provided he or she has attained majority and are of sound mind. Mostly, all of these laws, rules and regulations have been itemized in the Hindu Adoptions and Maintenance Act of 1956.
The Hindu Adoption and Maintenance Act, 1956 is a part of codifying and modernizing Hindu law and was passed after independence. This acts removes several gender based discriminatory factors by reflecting the principles of equality and social justice.
Section 6 to Section 11 of Hindu Adoption and Maintenance Act states clearly the essential conditions for the valid adoption.
Section 6 of the Act i.e. Requisites of a valid adoption states that no adoption shall be valid unless:-
· The person adopting has the capacity and also the right to take in adoption.
· The person giving in adoption has the capacity to do so.
· The person adopted is capable of being taken in adoption.
· The adoption is made with the other conditions of the act.
Section 7 and Section 8 of the act states the capacity of a male and female Hindu to take in adoption. General condition of mind relates to unsoundness of mind. All condition of insanity including epilepsy, idiocy and lunacy will come under the unsoundness of mind. A Hindu male or female married under the Special Marriage Act has also the capacity to adopt. A major Hindu male of sound mind can adopt whether he is a bachelor, widower, divorcee or a married person. For a married Hindu male, it is obligatory to obtain the consent of the wife. In case he has more than one wife, consent of all wives is necessary.
An adoption made without the consent of wife is void. If the consent of the wife living with the husband is taken but consent of wife living separately is not taken, the adoption is equally void.
Similarly, in case of adoption by wife the act makes a fundamental departure from the old law by empowering a Hindu female though not a married woman to adopt to herself in her own right.
Under the act, a Hindu unmarried woman, widow or divorcee has the capacity to adopt. It has been held in Vijaya Laxman Vs V.B.T Shankar that where a widow adopts a child, she need not take the consent of the co-widow because she adopts the child in her own capacity. A married woman has no capacity to adopt. She cannot adopt eve with the consent of her husband. So, the position is that a married woman totally lacks capacity to adopt except in following cases:-
· If her husband has ceased to be a Hindu.
· If he has finally and completely renounced the world.
· If he has been declared by a court of competent jurisdiction to be of unsound mind.
Section 9 of the act specifically mentions the person capable of giving in adoption. It states that no person except the father or mother or the guardian of the child shall have the capacity to give the child in adoption. The father or mother in case of adoption shall have equal right to give the son or daughter in adoption. It also provides that such rights shall not be exercised by either of them saved the consent of the other unless one of them has ceased to be a Hindu or has been declared by the court of competent jurisdiction to be of unsound mind.
Both the father and mother are dead or has renounced the world or has abandoned the child or has been declared by the court of competent jurisdiction to be of unsound mind. In that case, the guardian of the child may give the child for adoption by the permission of the court.
While giving in adoption, the appropriate property must ensure that the adoption of the child is absolutely for the welfare of the child and due consideration for this purpose is to the wish of the child having regard to the age and undertaking of the child, etc.
Section 10 states that the person who may be adopted. These conditions for the child being given in adoption:-
· The child must be a Hindu.
· The child has not already been adopted.
· He or She is not married unless there is a custom, a usage applicable to the parties which permits person who are married or been taken in adoption.
· Child has not completed the age of 15 years unless there is a custom, a usage applicable to the parties which permits persons who have completed the age of 15 years to be taken in adoption.
Section 11 states some other conditions for a valid adoption. In every adoption, the following conditions must be complied with:-
· If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son by any relation(whether by legitimate blood relationship or by adoption) living at the time of adoption;
· If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter by any relation living at the time of adoption;
· If a female is to be adopted by a male, the age difference between the adoptive father and the daughter must be twenty-one years;
· If a male is to be adopted by a female, the age difference between the adoptive mother and the son must be twenty-one years;
· The same child cannot be adopted simultaneously by two or more persons;
· The adoption must be given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption.
Section 12 states the effects of adoption and under Hindu law (both old and new) the adoption of a child means that the child is totally uprooted from the natural born family and transplanted to new family.
The only tie that he retains with the natural family is that he cannot marry any person in his natural family whom he could not have married before adoption.
Provided being, Section 12 of the act provides that any property which vested in the adoptive child before the adoption shall continue to vest in such a person subject to the obligation if any attaching to the ownership of such property including such provisions to maintain the relation in the family of his/her birth. For instance, two brother X and Y inherited property from their mother. Subsequently was given in adoption by his father. X will continue to be the owner of the property inherited by him before adoption.
Adopted son can divest a person in hope property is vested prior to adoption. The adopted child is deemed to be the child of the adopter for all purposes. His position for all interest purposes is that of natural born son. He has same rights, privileges and obligation in the adoptive family. Both the adoptive and natural child will inherit equally.
Section 12(c) specifically lays down that the adopted child shall not divest any person of any estate which vesting in him/her before the adoption.
Section 13 states the right of adoptive parents to dispose of their properties which says that an adoption does not the adoptive father or mother of the power to dispose of his or her property by any means.
Section 14 states the Determination of adoptive mother in certain cases as such:-
Section 14(1) determines that a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother.
Section 14(2) states that if the adoption is made with the consent of more than one wife, the senior most among them shall be deemed to be the adoptive mother and the others to be step-mothers.
Section 14(3) states that if a widower or a bachelor adopts a child, then the wife he subsequently marries shall be deemed to be the step-mother of the adopted child.
Section 14(4) states that if a widow or an unmarried woman adopts a child, then the husband she subsequently marries shall be deemed to be the step father of the adopted child.
Section 15 states that valid adoption not to be cancelled and thus no adoption which has been validly made can be cancelled by the adoptive parents or any other person and also the child cannot renounce his or her status and return to the family of his or her birth.
Section 16 states Presumption as to registered documents relating to adoption which thereby explains that any document registered under any law for the time being in force is produced before any court to record an adoption made and is signed by the person giving and the person taking the child in adoption and in this case the court shall presume that the adoption has been made in compliance with provisions of this act and until it is disproved.
Section 17 prohibits any kind of payment or other reward in consideration of the adoption of any person, and no person shall give or agree to give to any other person any payment or reward.
STEP BY STEP GUIDE FOR ADOPTION
There are certain rules and regulations which govern the adoption of a child in India, as across many other countries of the World.
WHO IS ELIGIBLE TO ADOPT A CHILD IN INDIA?
Central Adoption Resource Authority (CARA) is the nodal agency to monitor and regulate in-country and intra-country adoption and is a part of Ministry of Women and child care.
Following are the certain essential conditions in order to be eligible to adopt a child:
· The procedure for adoption is different in case of Indian citizen, NRI or a foreign citizen and a child can be adopted by any of the three.
· Irrespective of their gender or marital status, any person is eligible to adopt.
· Provided that a couple is adopting a child, they should have completed two years of stable marriage and both should agree for the adoption.
· 25 years should be the minimum age difference between the child and the adoptive parents.
WHEN CAN A CHILD BE ELIGIBLE TO BE ADOPTED?
· Any orphan, surrendered or abandoned child is legally declared free for adoption by the child welfare committee as per the guidelines of the Central Government of India.
· A child without a legal parent or a guardian or the parents are not capable of taking care of the child anymore is said to be an orphan.
· When a child is deserted or unaccompanied by parents or a guardian and the child welfare committee has declared the child to be abandoned, a child is considered to be abandoned.
· Renounce on account of physical, social and emotional factors that are beyond the control of parents or the guardian is called a surrendered child as declared by the child welfare committee.
· In case of adoption, a child requires to be “legally free”. A child is considered to be legally free if even after trying their level best the police fails to find the true parent or guardian of the child.
WHAT ARE THE NORMAL CONDITIONS TO BE FULFILLED BY PARENTS?
· The adoptive parents need to be mentally, physically and emotionally stable.
· The adoptive parents should be financially stable.
· The adoptive parents should not be suffering from any life- threatening diseases.
· Apart from cases of special needs children, couples with three or more kids are not allowed for adoption.
· A single female is allowed to adopt a child of any gender but a single male is not allowed to adopt a girl child.
· The maximum age limit of a single parents should be 55 years.
· In case of couple, the cumulative age should not be more than 110 years.
· On the date of registration, the age of parents should be as per CARA guidelines.
HOW TO ADOPT A CHILD IN INDIA?
STEP 1- REGISTRATION
Adoptive parents requires to get registered with an authorized agency where the social workers will explain the process and will take you through the legal formalities, paperwork and general preparation required for registration.
STEP 2- HOME STUDY AND COUNSELLING
The social worker of registration agency will visit the home of the adoptive parents in order to do a home study. The agency may also need the adoptive parents to attend counselling sessions in order to make them understand the preparation motivation, strengths and weaknesses of the adoptive parents.
The home study needs to be completed within 3 months from the date of registration and then can proceed to counselling session and then reported to the honorable court.
STEP 3- REFERRAL OF THE CHILD
The agency shall adumbrate the interested couple when there is a child ready for adoption. It is the responsibility of agency to share medical reports, physical examination reports and other relevant information with the couple and when they are comfortable with the details shared, they are given some time to spend with the child.
STEP 4- ACCEPTANCE OF THE CHILD
Provided that the parents are comfortable with the child, they need to sign certain documents pertaining to acceptance of the child.
STEP 5- FILING OF PETITION
The necessary documents are submitted to a lawyer who prepares a petition which is to be presented to the court. After the completion of the petition, the adoptive parents needs to visit to the court and sign the petition in front of the court officer.
STEP 6- PRE-ADOPTION FOSTER CARE
After the petition is signed in the court, the child is taken to pre-adoption foster care center by the adoptive parents to understand the habits of the child before taking the child home.
STEP 7- COURT HEARING
Along with the child, the parents have to attend a court hearing which is held in closed room with a judge where the judge might ask a few questions and mentions the amount which needs to be invested in the name of the child.
STEP 8- COURT ORDER
The judge will pass the adoption orders once the receipt of investment made is presented in front of the judge.
STEP 9- FOLLOW UP
After the post- completion of the adoption, the agency henceforth needs to submit follow up reports to the court on the child’s well- being which may continue for 1-2 years.
CAN PARENTS ASK FOR A SPECIFIC CHILD?
The adoptive parents cannot ask for the adoption of a specific child. Therefore, if adoptive parents are looking forward for a new born baby adoption it may not completely be possible.
Nevertheless, they can give their preferences such as:
· Gender of the child
· Skin color
· Health condition
In case of preferences specified, adoption may take more time to match the choices and thus will reduce the pool of kids available for adoption.
GUARDIANS AND WARDS ACT, 1890
Hindu Adoption and Maintenance Act were mostly the guidelines for the Hindu society and thus arose a need to make a law which was sensitive to the personal laws of another religion which were not mentioned under the Hindu Adoption and Maintenance Act, 1956 and therefore the Guardians and Wards Act of 1890 were made.
The Guardian Wards Act, 1890 was a law to replace all other laws regarding the same. It was the only non-religious universal law regarding the guardianship of a child and is applicable to all India except the state of Jammu and Kashmir. This law is particularly applicable for Muslims, Christians, Parsi’s and Jews as because their personal laws do not permit full adoption. It is applied to all children regardless of their race or creed.
Adoption brings happiness to kids, who were abandoned, or orphaned and thus is a noble cause. Adoption gives a chance for the humane side of civilization to shine through. Moreover it is a beneficial program where the child is treated as the natural born child and given all the love, care and attention. And also, it fills the void in the parents who yearned for kids, their laughter and mischief echoing off the walls of a home. Even now a few changes could be made to make all the laws regarding adoption a little, uniform.
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