“Adoption of children, in one form or another, is as old as human history.”
-Barbara A. Moe
India has a long tradition of child adoption. Adoption provides a very important function in the society. In olden days, it was restricted within the family and was covered by social and religious practices. But with the passage of time, adoption has been legalized beyond the contour of family. But still most the religions don’t allow adoption which includes Muslims, Christians etc. They usually opt for guardianship of a child through the Guardians and Wards Act, 1890. There are two legislations in India which deals with adoption i.e. Hindu Adoption and Maintenance Act, 1965 and the Juvenile Justice (Care and Protection of Children) Act, 2015.
Indian citizens who are Hindus, Jains, Sikhs or Buddhists are allowed to formally adopt a child under the Hindu Adoption and Maintenance Act, 1956. The Juvenile Justice (Care and Protection of Children) Act provides secular provisions for adoption i.e. people of every religion and caste can adopt child under this Act.
Who can adopt a child?
In India any persons whether he/she is married or single, Non-Resident Indian (NRI) or foreigner may adopt a child. There is a different process and guidelines for different categories of persons for adopting a child.
Under the Hindu Adoption and Maintenance Act, the following persons can adopt a child:
- Any major Hindu male of sound mind can adopt child.
- If male is married then consent of his wife is mandatory, in case of more than one wife then consent of all wives is required. Consent can be avoided in the following cases if :-
- Wife has renounced the world.
- Has converted the religion.
- Declared to be of unsound mind by the court.
- Any major Hindu unmarried female of sound mind can adopt child or if married then in following conditions she can adopt a child if:-
- She is divorcee.
- Her husband has died.
- Her husband has renounced the world.
- Her husband has converted the religion.
- Her husband is declared to be of unsound mind by the court.
Conditions for adoption:
There are certain conditions under the Act for adoption of a child. These are:-
- In case of adoption of a son by Hindu male or female, there should not be any living son in the succeeding three generation of the party at the time of adoption.
- In case of adoption of daughter by Hindu male or female, they should not have any daughter or son’s daughter at the time of adoption.
- Where there is an adoption of a daughter by male then the adoptive father should be atleast 21 years older than the child.
- Where there is an adoption of a son by a female than the adoptive mother should be at least 21 years older than the child.
- Two or more persons can’t adopt the same child.
Under the Juvenile Justice (Care and Protection) Act, the following persons can adopt the child:-
- Married couples with at least 2 years of stable relationship.
- The composite age of the married couples does not exceed 110 years.
- Single female can adopt a child of any gender.
- Single male can’t adopt girl child.
- Age of single parent doesn’t exceed 55 years.
- Prospective adoptive parents with 3 or more children are not eligible to adopt abandoned, orphan and surrendered child. However they can adopt child with special needs, step child or child of relative.
In case of married couples adopting a child, consent of both spouses is mandatory. Prospective adoptive parents must be physically, mentally and emotionally stable. Financial soundness is also a relevant factor in adoption of child.
Who can be adopted?
As per Hindu Adoption and Maintenance Act, any person can be adopted if:-
- He/she is Hindu.
- He/she has not already been adopted.
- He/she has not been married, unless there is a custom which permits the adoption of married person.
- He/she has not completed the age of 15 years, unless there is a custom which permits the adoption of person who is above 15 years.
As per The Juvenile Justice (Care and Protection of Children) Act following child can be adopted:-
- Who has not attained the age of 18 years.
- Orphan, Abandoned or surrendered child.
- Child of relative (relative means the child’s paternal uncle or aunt, maternal uncle or aunt, or paternal and maternal grandparents).
- Child of spouse from earlier marriage surrendered by biological parents.
Who can give child in adoption?
As per the Hindu Adoption and Maintenance Act, father, mother, and guardian of the child have power the give a child in adoption. A father can only give the child for adoption when he has full consent of the mother. The said consent must be given without any force, coercion, or fraud. However the consent of the mother of the child can be avoided in the following cases if:-
- She has renounced the world.
- She has converted the religion.
- She has been judicially declared to be of unsound mind.
If after the divorce the father has custody rights, then he is still bound to take the consent of the mother of the child. In case of illegitimate child, mother has complete power to give the child in adoption no consent of putative father is required. At the same time the mother of legitimate child has no authority to give child for adoption during the lifetime of her husband but after the death of her husband does have the power to do so.
The guardian of the child can decide the matters related to adoption only when if:-
- Both the parents are dead.
- Parents have renounced the world.
- Parents have been judicially declared to be of unsound mind.
- Parents have abandoned the child.
- The parentage of the child is not known.
All inter-country adoptions are done under the Juvenile Justice (Care and Protection of Children) Act. The Central Adoption Resource Authority (CARA) is a statutory body of the Ministry of Women and Child Development, Govt. of India and responsible for both in-country and inter-country adoptions in India. The CARA guideline requires that every application from a foreigner wishing to adopt a child must be sponsored by social or child welfare agency recognized or licensed by the government of the country in which the foreigner is residing. The agency should be recognized by CARA.
CARA is designated as the central authority for inter-country adoptions in India in accordance with Hague Convention on inter-country adoption, 1993, signed by the Govt. of India in 2003. NOC is mandatory for all inter-country adoptions under Hague Convention. There is different process for inter-country adoption of orphan, abandoned and surrendered child and inter-country adoption of relative’s child. The prospective adoptive parents can initiated the process by registering on the CARA’s official website.
Adoption gets concluded legally after obtaining an adoption order from the concerned court. In case of inter-country relative adoption, prospective adoptive parents can file an application in the District Court where the child resides. Registration of Adoption deed is not mandatory for inter-country adoptions.
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali