"If you have the heart for adoption, don't let fear stand in the way"
India is a country with great religious diversity and every religion has its own set of rules. The Indian legal system includes customs and legislations to form law but in Indian society personal matters are governed by the customs of those religion like Hindu, Muslim, Christians and Parsi etc...in their Personal laws . Children are considered the future of the country.
While on one hand, children have the right to pampered, taken care of and given all the necessities for development, on the other hand there are many children being abandoned per year in India. In some cases, these children become victims of human trafficking and sexual violence. In such cases the abandoned children are taken to any adoption agency for adoption . Adoption gives a chance for a second life. In this article , I am going to talk about adoption under various laws and their procedure for adoption and adopting institutions and inter country adoption with case laws . This article defines social challenges and changes regarding adoption.
"There are no unwanted children, just unfound families."
Adoption is a worldwide institution. Almost all religions and mythologies have some reference to adoption. In the contemporary world, the thirst of the concept of adoption has changed from providing child to childless to providing home to homeless. Adoption is one of the concepts that have undergone a radical change in the course of transit from primitive to modern age. Adoption is essentially a product of historical and evolutionary processes.
Adoption is a sacred act performed by the humans. As per the Merriam-Webster legal dictionary defines legal adoption means "to take voluntarily (a child of other parents) as one's own child especially in compliance with formal legal procedures". Adoption can be legal as well as illegal. Under Indian law adoption is a legal coalition between the party willing for adoption and a child, it forms the subject matter of 'personal law' where Hindu, Buddhist, Jain or Sikh by religion can make a legal adoption. In India there are no separate adoption laws for Muslims, Christians and Parsis, so they have to approach court under the Guardians and Wards Act, 1890 for legal adoption.
Adoption is the legal act of permanently placing a child with a parent or parents other than the biological parents. According to the myth prevailing in society , people tend to believe that if they are adopting a child, they prefer to adopt a boy over a girl because of the thought-process that a girl can't redeem them from hell or save them from the sufferings.
VIEWS BY SCHOLARS
● Ashok A. Desai, J, (1998) said the right to have size of a family according to one's own choice is comprehended within the concept of human dignity. Since the impugned provisions, namely, Hindu Adoption and Maintenance Act, 1956, Sec. 11(i) prevent such right, they are violative of the Constitutional guarantee.
● S Parkar, J, (1999) was of the opinion that after legal adoption, there should be statutory provisions in law for monitoring and filing progress reports on the well-being of respective children. In situations that are detrimental to the interests of the child in question, there should be provisions to initiate appropriate action for the best interest of the child since our constitution protects the right of a child under Art. 14 and Art 21 of the Constitution.
● Sathasivam, C. J., was of the view that adoption has always been considered as a wonderful opportunity to provide a child with home and parents. It offers an excellent alternative to institutional care of destitute, abandoned and neglected children in an atmosphere of love, affection and understanding which only a family can provide and must be safeguarded like a fundamental right.
● Elizabeth Barthelot, (2007) is of the view that inter-country adoption violates the fundamental rights of the biological parent and the adopted child to save the human right of couples who cannot have children.
OBJECTIVES OF ADOPTION
The objectives of adoption are ;
ADOPTION UNDER ENGLISH LAW
Modern adoption laws came into existence only after the First World War where many kids were abandoned due to chaos and epidemic influenza. It's only recognised in the latter half of the nineteenth century. First adoptions laws were passed by England and Wales in 1926 called THE ADOPTION OF CHILDREN ACT,1926.
The purpose of this act is to prevent the biological parents from claiming back their children. A more comprehensive act was passed in 1950 and modified in the year 1958. English law is similar to Hindu law of adoption. A large number of countries enacted new adoption laws in the aftermath of World War II. Several amendments were made to earlier legislations during 1940: 1980. A number of countries also modified existing legislation on adoptions to allow for new forms of adoption.
ADOPTION UNDER INDIAN LAW
Before independence , they can adopt an abandoned or orphaned child under The Children's Act,1920. Adoption in India, for a long time, fell within the ambit of personal laws, and there was no uniform legal framework that governed the adoption of children. Thus, adoptions were a purely religious matter, and members of certain religions - specifically Islam, Christianity, Judaism and Zoroastrianism - were essentially prohibited from adopting children, as their personal laws did not permit it.
Instead, they can adopt a child as a guardian, under the Guardians and Wards Act, 1890. The only religious communities that could adopt children were Hindus, Sikhs, Buddhists and Jews, whose personal law, codified in the form of the Hindu Adoption and Maintenance Act, 1956, allowed for adoption of children.The objective of these enactments is to protect the rights of an adopted child and transferring all legal obligations and rights from biological parents to adoptive ones.
Indian citizens can adopt in India under three major legislations;
ADOPTION UNDER HINDU LAW
HINDU ADOPTION AND MAINTENANCE ACT, 1956
In ancient times , Gender bias played a very prominent role in Adoption . Before HAMA,1956 in India Shastri Law was followed among Hindus where they can adopt Only male children with reference to their own Caste and Kotra and Only male can Adopt a child with or without consent of wife is immaterial.
The Hindu adoption and maintenance act,1956 , brought radical changes in the society where females can adopt a child and a female child could be adopted. Though after the enactment of the Act, it has noted that the gender discrimination still exists. A married female cannot adopt, not even with the husband's consent, unless her husband dies or suffers from any disability or renounces the world or so. On the other hand, a husband may adopt with or without consent of the wife. It clearly shows the Gender discrimination. Similarly, in the matter of giving a child in adoption, the Hindu male enjoys broader rights than a corresponding female.
In the case of Smt.Malati Roy Chowdhury Vs Sudhindranath Majumdar(1), the appellant, Malti had been adopted by the deceased mother. After her mother's death, she became the sole heiress and applied for estates and properties left behind by her mother. There was a lot of evidence which has been presented by the appellant like proof of the ceremony of adoption, natural parents handing over the child to the adoptive mother in the presence of her husband and the priest; acknowledgement through school records; Malti being performed at the funeral ceremony of her mother. But however, the Court did not accept the argument and it was held that, "under the provisions of the act, the husband alone can adopt, but here, it is an admitted position that Malti was adopted by the mother Tripti not by the father and thereby, rejected her appeal."
In Bal Gangadhar Tilak v. Shrinivas Pandit(2), the Privy Council held that under Hindu law, adoption was a means by which not only the father's name was carried forward, but it aided for the fulfilment of various religious rites and practices under Hindu law that mandated the involvement of a son. However, it has to be noted that traditionally under Hindu laws, adoption of a daughter was not legally recognised, though it was permissible under customary law, only a son could take part in the religious rites and practices that are essential under the Hindu religion.
The wife of a Hindu male, who adopts is deemed to be the adoptive mother. Where an adoption is made with the consent of more than one wife, the senior most in marriage is deemed to be the adoptive mother and the rest are given the title of step mothers. All laws relating to the adoptive parents and/or step parents can be seen in section 12, 13 and 14 of the Hindu Maintenance and Adoption Act of 1956. In this context, an issue came up. The case of Sawan Ram v. Kalavati(3), brought out the question as to whether, in the case of adoption by a widow, would the adopted child be deemed to be the child of the deceased husband as well, so as to be his heir. The Supreme Court held that the adoption would not only be by the female, but also to her deceased husband. This argument was based on the words found in s. 5(1) of the Act.
Also, it has to be noted that the adoptions once made by the parents cannot be cancelled by the parents, nor can the adopted child renounce the adoptive family and go back to his/her birth parents. Adoption is generally held to be permanent in nature, with neither parties going back on their words. This has been stated in section 15 of The Act. But care has to be taken that the adoption referred to in this section is a valid adoption.
Some relevant parts of the Act are:
Other conditions for a valid adoption are fulfilled
Inheritance rights of the adoptive child
An adoptive child is treated the same as the biological child of adoptive parents. They have the same legal rights to benefit from the property as that of a biological child. The adoptive child can claim stakes on their adoptive parents property. But according to Hindu adoption and maintenance act the adoptive child loses rights from their biological parents once they are adopted.
ADOPTION AMONG MUSLIM
Before Shariat Act,1937 adoption recognised by custom, as Muslim Talukadar was permitted to adopt under Section 29 of Oudh Act,1869. But now No recognization is given to term adoption in their personal laws. In Islamic term it's called as Kafil/kafala .Under the Muslim law, the father enjoys a dominant position.In Sunnis and Shias schools the father is the sole guardian. Mother is not recognized as a natural guardian even after the death of the father.
There are a few rules in Islam surrounding the concept of Adoption:
In Mohammed Allahadad Khan v. Muhammad Ismail (4), it was held that there is
nothing in the Mohammedan Law similar to adoption as recognized in the Hindu
ADOPTION UNDER CHRISTIAN LAW
No separate Law for adoption under Christian law. Adoption can take place from an orphanage by obtaining permissions from the court under Guardians and Wards act,1890. Here also father's right is primary and no other person can be appointed unless the father is found unfit. This Act also provides that the court must take into consideration the welfare of the child while appointing a guardian under the Act. Christians in India can adopt children by resort to section 41 of the Juvenile Justice (care and protection of children)Act 2006,read with guidelines and rules issued by various state governments.
Under these acts , children could be adopted only under foster care not as their own children . Once a child under foster care becomes major , he is free to break away all his connections. Besides , such a child does not have legal right of inheritance. On death of the foster parents, their estate is distributed among legal heirs of the intestate, to the detriment of foster children.
In Philips Alfred Marvin v.V. J. Gonsalves(5) , the Court upheld the legal validity of an adoption undergone through the help of the Church despite the absence of any law or customs. The Court also held that adoption was recognised under Christian law and the adopted child had the same rights as that of a natural child.
ADOPTION UNDER PARSI LAW
No separate law for adoption . The Parsi personal laws are governed by the Parsi Marriage and Divorce act,1936 and Pt III of Indian Succession Act,1925 have no provision for Adoption. Adoption can take place from an orphanage by obtaining permission from the court under Guardians and Wards Act, 1890. However a custom prevails among Parsi's known as the palak where the widow of a childless Parsi can adopt a child after four days of her husband's death so that certain religious ceremonies could be performed annually. This child acquires no property rights .
ADOPTION UNDER SECULAR LAWS
1.GUARDIANS AND WARDS ACT, 1890
Guardianship And Wards Act, 1890 is applicable for Parsis, Christian, Muslim because they don't have any personal laws and by this, they cannot adopt the child but they are only the guardian in this act the child had no right to inherit the property. Also, when he/she turns to 21 they are assumed to be a separate identity. Before the Juvenile Justice (Care and Protection) Act of 2000, this was the only legislation that allowed non-Hindus to adopt. However, this act ended up being the first secular law that allowed for a child to be adopted in India. The salient points of this Act are:
Personal laws of Muslim, Christian, Parsis and Jews do not recognise complete
adoption so if a person belonging to such religion has a desire to adopt a child
can take the guardianship of a child under section 8 of the Guardians and Wards
Act, 1890. This statute only makes a child a ward, not an adoptive child.
According to this statute, the movement child turns to the age of 21, he is no
longer considered as a ward and treated as an individual identity.
2.THE JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN) ACT 2000
The Juvenile Justice (Care and Protection of Children) Act, 2000 (J. J. Act) was adopted to aid the rehabilitation of orphaned, abandoned and surrendered children. The Juvenile Justice (Care and Protection of Children) Act, 2000 and all the Amending Acts (2006, 2010, and the latest being in 2015) guarantee those rights to an adopted child which are recognized under the Hague Convention.
The 2000 Act did not, however, define adoption, and the term was added in the 2006 Amendment. According to section 2(aa) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, "adoption means the process through which the adopted child is permanently separated from his biological parent and becomes the legitimate child of his adoptive parents with all right, privileges and responsibility that are attached to the relationship". This was a major development as up till adoption by a non-Hindu was guided by the Guardians and the Wards Act, 1890
The main strengths of this Act are:
In Shabnam Hashmi v Union of India and Others(6), the question came up regarding
the right of Muslim's to adopt. The Court took a liberal view and awarded
adoptive rights to Muslims under the J. J. Act. It upheld the status of J. J.
Act as a secular law of adoption in India and granted the right to adoption
across all religious communities in India, irrespective of what their personal
laws said. However, the Court rejected the stance that the right to adoption was
a right envisaged under the right to life of Art. 21. The court stressed that it
is for Parliament to meet the constitutional obligations of Article 44, that it
is for future generations to craft a UCC once there is "a dissipation of
conflicting thought processes� prevailing in the country".
In the case of In Re Rasiklal Chhaganlal Mehta Vs State(7), the issue of transnational adoption was first discussed by the court, which held that adoption under Section 9 (4) of the Hindu Adoption and Maintenance Act, 1956, inter-country adoption is legally valid.
In the case of Laxmi Kant Pandey v. Union of India(8), the Apex Court formed some guidelines which were to govern international adoption. Setting up of a Central Regulatory Body was suggested and in pursuance of the suggestion, Central Adoption Resource Agency (CARA) was set up in 1989. The agency plays a pivotal role in laying down both substantive law and procedural law on intra-country and inter-country adoption. In India, there is no separate act that governs adoption by foreign citizens or NRIs but it is covered under Guidelines Governing Adoption of Children, 2015. Under these guidelines misuse or illegal use of the children through adoption is prevented.
As per the Supreme Court Guidelines for intercountry adoption a foreign parent can adopt an Indian child before he/she completes the age of 3 years. In the absence of any concrete Act on intercountry adoption, the provisions of Guardians and Wards Act, 1890 will be followed for adoption. In case of adoption of abandoned, abused and surrendered children all intercountry adoptions shall be done only as per the provisions THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 and the adoption regulations framed by the Authority. Section 57 of this Act deals with eligibility of prospective adoptive parents. The prospective parents should be mentally sound, physically fit and they should be fully prepared to adopt the child and also should be ready to provide a good upbringing.
HAGUE CONVENTION ON INTER COUNTRY ADOPTION,1993
The Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (Convention) is an international agreement to safeguard intercountry adoptions. Concluded on May 29, 1993 in The Hague, the Netherlands and it was approved by 66 nations , the Convention established international standards of practices for intercountry adoptions. It built directly on the UN Convention on the Rights of the Child, seeking to protect all parties to international adoptions and to prevent international traffic in children. The United States signed the Convention in 1994, and it was passed by Congress in 2000.
The Hague Convention lays down two principles, both towards the protection of the children who are the subject of international adoption;
Some important articles are;
CHAPTER I�SCOPE OF THE CONVENTION
The objects of the present Convention are�
a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;
b) to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;
c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention.
(1) The Convention shall apply where a child habitually resident in one Contracting State ("the State of origin") has been, is being, or is to be moved to another Contracting State ("the receiving State") either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.
(2) The Convention covers only adoptions which create a permanent parent-child relationship.
CHAPTER II�REQUIREMENTS FOR INTERCOUNTRY ADOPTIONS
An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin�
a) have established that the child is adoptable;
b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child's best interests;
c) have ensured that
(1) the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,
(2) such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,
(3) the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and
(4) the consent of the mother, where required, has been given only after the birth of the child; and
d) have ensured, having regard to the age and degree of maturity of the child, that
(1) he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,
(2) consideration has been given to the child's wishes and opinions,
(3) the child's consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and
(4) such consent has not been induced by payment or compensation of any kind.
An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving State�
a) have determined that the prospective adoptive parents are eligible and suited to adopt;
b) have ensured that the prospective adoptive parents have been counselled as may be necessary; and
c) have determined that the child is or will be authorized to enter and reside permanently in that State.
CENTRAL ADOPTION RESOURCE AUTHORITY (CARA)
CARA is an autonomous body which has been set up under the Ministry of Women and Child Development and looks after matters of intra-country and inter-country adoption. CARA Guidelines state that any foreign couple who wants to adopt a child from India must be sponsored by a child welfare agency or a social agency which is recognized by the government of the country in which the foreign couple resides.
As per CARA Guidelines, only Below type of children is recognized as adoptable;
● Those children who have been surrendered and abandoned
● Those who are orphans and are under the care of some specialized adoption agency.
The Central Adoption Resource Authority (CARA) of India is vested with the responsibility to oversee all adoption in India and issues certain guidelines to facilitate the process of adoption uniformly throughout the country and to relieve prospective adoptive parents (PAPs) from having to go through tiring procedures at different adoption agencies . The agency issues certain guidelines that are adhered to whenever an adoption takes place. Under this system, PAPs apply for adoption by uploading their details and wishes and a child free for adoption is allocated to them through governmental channels. Some guidelines issued by the agency are as follows :
● Clear and transparent procedure for registration of resident Indians and provision for uploading required documents online.
● PAPs have an option to select an adoption agency of their choice for conducting Home Study Report (HSR) and preferred State also.
● Home study Report of PAPs can be prepared by the State Adoption Resource Authority (SARA) or District Child Protection Unit (DCPU) empanelled social worker.
● Seniority of PAPs would be maintained from the date of registration.
● The maximum combined age for married couples has been increased from 105 years to 110 years to encourage adoption of older children.
● Minimum 25 years age gap between the child and adoptive parents has been prescribed.
● More clarity in adoption of special needs children, older children and siblings. Older children and siblings would no more be considered as special needs children.
● All Specialised Adoption Agencies (SAAs) would be authorised to do In-country & Inter-country adoption.
● Inter-state adoptions made simpler to boost adoptions within the country; No permission of State Adoption Resource Agency (SARA) is required for domestic adoption from another State.
● NRIs would be treated at par with resident Indians in terms of priority regarding referral of a child.
● Greater clarity in the process and documentation for Overseas Citizens of India (OCI) and Foreign PAPs living in India.
● Adoption expenses for different categories of PAPs prescribed.
● Authorised Foreign Adoption Agency (AFAA) would have a provision of renewal after a period of five years.
● All adoptions (in-country or inter-country) to proceed on Central Adoption Resource Information Guidance System (CARINGS), adoption outside CARINGS is strictly prohibited.
The CARA Guidelines and the new adoption process is being developed to bring about effective regulation for adoption of orphan, abandoned and surrendered children and more transparency and efficiency in the adoption system .
Eligibility of the child to get adopted under CARA
TYPES OF ADOPTION
The different types of Adoption can be summarized as follows:
Other forms of adoption practiced in other climes include:
ADOPTION PROCESS IN INDIA
List of documents required for adoption
The following documents are required for the procedure of adoption:
STAKEHOLDERS IN ADOPTION PROCESS
LIST OF TOP ADOPTION INSTITUTIONS IN INDIA
CASES RELATED TO ADOPTION
Ankush Narayan v. Janabai(9)
Court held that on adoption by a widow, the adopted son becomes the son of the deceased adoptive father and the position under the old Hindu law as regards ties in the adoptive family is not changed.
Gurdas v. Rasaranjan(10)
Adoption is made when the actual giving and taking had taken place and not when the religious ceremony is performed like Datta Homam. For a valid adoption, it would be necessary to bring on records that there has been an actual giving and taking Ceremony.
Shrimati Asoka Mukherjee Vs. Gandhi Das and Anr(11)
Held in absence of evidence of giving and taking ceremony adoption of the defendant not proved. It has not been proved that the defendant No. 1 was actually given and taken in adoption by Kalipada and Sabitri Bala. The persons present at the time of adoption did not come forward to depose. Court also said it has been proved that the plaintiff is the owner of the suit premises and the defendant No. 1 has no right, title and interest in respect of suit premises as a tenant inasmuch as his claim that he was the adopted son of Kalipada and Sabitri Bala has not been proved.
Darshana Gupta Vs. None and Ors(12)
Held, When the child to be adopted is orphaned, abandoned or surrendered child or a child in need of care and protection as defined in Juvenile Justice Act, the bar imposed by Section 11 (i) and (ii) of Hindu Adoption and Maintenance Act does not bar the Hindu having biological child from adopting the child of same gender. In changed social scenario, Acts were liable to be construed harmoniously to ensure rehabilitation and social reintegration of orphaned, abandoned and surrendered children - Therefore, adoption of child girl to Appellant was held maintainable
The adoption laws have improved tremendously but lack of uniform code many childless parents are not able to adopt a child. Adoption is a noble cause, which brings happiness to kids, who were abandoned, or orphaned. This gives a chance for the humane side of civilization to shine through. It's a beneficial program where the child is treated as the natural born child and given all the love, care and attention. At the same time, it fills the void in the parents who yearned for kids, their laughter and mischief echoing off the walls of a home.
Although a few changes could be made to make all the laws regarding adoption a little, uniform..Adoption is a noble cause, which brings happiness to kids, who were abandoned, or orphaned. This gives a chance for the humane side of civilization to shine through. Adoption once validly made is final and cannot be revoked. The law has further made an express prohibition against the payment of money or other reward in consideration of adoption.
Adoption has come to stay in India and should be encouraged by the larger population due to the number of unwanted children that abound in the country.Many agencies have observed a growing penchant for the female child among adoptive parents. It is seen that adoption is one means that can be used to fight female infanticide and feticide issues in India.The best that can happen to any child is to have a better love, care, and protection which he really needs.
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