We will be dealing with the right of adoption for all religious communities. Mainly, the adoption laws are governed by different kinds of personal laws, but it is also a constitutional right as recognized under the Indian constitution. We will have an overview of adoption both under personal laws and under the Indian constitution.

Objective And Scope
Objective is to give clarity to the differences of the right in adoption under various perspectives of personal and constitutional laws. It will also give an idea regarding the necessity of adoption under various personal laws and how exactly adoption is a fundamental right of the citizen.

Scope of the topic is limited to laws governing adoption in India only.

Research Methodology
This study is purely doctrinal in nature which is based on secondary sources of information like articles, textbooks etc.

What Is Adoption?

It is the action of taking another child and raising it as one's own child. It is a social, emotional and legal process.

Adoption In Personal Laws

In personal laws, the adoption process has no uniformity and there are different variations for adoption according to different personal laws.

Adoption Under Hindu Law:

Under Hindu law, the main legislation governing the whole adoption process is the Hindu Adoption and Maintenance Act, 1956. In Hindu law, the process of adoption of a 'son' is recognized in case of absence of natural heirs. This was because a son was required for both material and spiritual welfare of the family and to carry it forward.

Because of this phenomenon, adoption was recognized under Hindu personal laws. This statement was validated by the court's decision in the case of Bal Gangadhar Tilak vs. Shrinivas Pandit, the privy council held that under Hindu Law, adoption is a means by which the father's name was carried forward and it also aided for the fulfilment of various religious rites and practices to be performed under Hindu Law which mandated the involvement of a son. However, adoption of a daughter was not legally recognized although it was permitted under the customary laws.

Since, only a son could take part in the religious rites and practices that are essential under Hindu religion, the adoption of a daughter was not legally recognized until the passing of the Hindu Adoption and Maintenance Act, 1956.

This law bought about several changes in the adoption system which include the right of women to adopt and to be adopted. This gave right to adopt to married women, widows and single mothers as well.

Under the Hindu Adoption and Maintenance Act, 1956, Section 6 states that a valid adoption takes place only if the following criterion are fulfilled:

1. A person who is adopting has the capacity and the right to adopt.
2. A person who gave up in adoption has the right to do so.
3. A person who is being adopted is capable of being taken in adoption.
4. The adoption is made in compliance with the conditions supplied in this act.

This section does not mention the performance of any formal ceremonies for the adoption to be valid. The only required thing to do is the actual transfer of the child from the family of his birth parents to the family who adopts the child.However, there are other requirements to be met in case of Hindu Adoption mentioned in section 11 of the Hindu Adoption and Maintenance Act, 1956.

These requirements are stated as follows:

1. In case of adoption of a son, the adoptive parent must not have a Hindu son, a son's son, a son's son's son living at the time of the adoption.
2. In case of adoption of a daughter, the adoptive parent must not have a Hindu daughter or son's daughter living at the time of the adoption.
3. In cases where a man adopts a daughter, or a woman adopts a son, a minimum age difference of 21 years has to be present between the adoptive parent and the child.
4. The same child cannot be adopted simultaneously by two or more persons.

Who Can Adopt Under Hindu Law?

Under the Hindu Adoption and Maintenance Act, 1956, Section 7 and 8 it states the capacity to adopt for a Hindu male and Hindu female, respectively.

It specifies that both men and women should be of:

• Sound Mind
• Major (Above the age of 18 years)

In order to take up a son or daughter in adoption. It was also stated that if they are married, then the consent of their respective spouses is mandatory, unless the other spouse has withdrawn from the society at the time of adoption, left the Hindu religion or declared to be of unsound mind by a competent court. If a man has multiple wives surviving at the time of adoption, then the consent of all the wives is required for him to adopt a child legally, unless the spouse withdrawn from society at the time of adoption, left the Hindu religion or declared to be of unsound mind by a competent court.

Who Can Put Up A Child For Adoption Under Hindu Law?

Section 9 of the Hindu Adoption and Maintenance Act, 1956, states that no one except the father and the mother of the child has the right to give up a child for adoption. Both of them have the equal right in giving up the child for adoption. This means that if one of them wants to give the child for adoption, the consent of the other spouse has to be mandatorily taken by them unless the other spouse is not alive at the time of adoption, left the Hindu religion or declared to be of unsound mind by a competent court. The right to put a child up for adoption can be extended to the guardian of the child in case both the parents have withdrawn from the society at the time of adoption, left the Hindu religion, declared to be of unsound mind by a competent court or if the parents of the child could not be found or are not known. However, before the guardian can put the child up for adoption or adopt the child himself/herself, the court will look into the welfare of the child with respect to his age and understanding and that the guardian receives or pays no consideration to payment of money or reward for such adoption.

Who Can Be Adopted Under Hindu Law?

Under the Hindu Adoption and Maintenance Act, 1956, Section 10, it describes the characteristics of the child who could be adopted, it states that the child should be:

• A Hindu
• Not Already Adopted
• Unmarried, unless the customs allow it
• Below 15 years of age, unless the customs allow it

What Effects Could The Adoption Have Under Hindu Law?

Section 12 of the Hindu Adoption and Maintenance Act, 1956, states the effects of the adoption process.

1. The adoptive child is deemed to be the natural child of the adoptive parents from the date of adoption and all the bonds that the adoptive child had with his/her natural family/parents are considered void and replaced with the bonds of the adoptive family/parents.
   
   There are three exceptions to this rule, which are:
   1. The child cannot marry anyone whom he could not have had if he was living in his birth family.
   2. Any property of the adopted child given to him before his adoption would remain his, but would come with the responsibility to maintain his relatives in the birth family.
   3. The adopted child cannot deprive anyone from any property granted to him before the adoption.
       
2. The senior-most wife of a male Hindu with several wives will be regarded as the adoptive mother of the child, and the other wives will be treated as step-mothers of the child.
    
3. In case of adoption by a widow, widower, unmarried man, or unmarried woman, if they remarry or marry someone, the other person will be treated as a step-parent of the adopted child.
    
4. In the case of Sawan Ram, the Supreme Court held that the adopted child of a widow would also be the adopted child of the deceased husband. Since adoption requires the consent of both the father and the mother, the adoption would extend to the deceased husband as well.
    
5. After a valid adoption, it cannot be cancelled by:
   1. Either of the adoptive parents
   2. Any other person
   3. The adopted child himself

Adoption Under Muslim Law

Muslim personal laws do not recognize the process of adoption. There is only a guardianship process mentioned under Muslim law where there are provisions for looking after orphans (kafala).

But in such a case, the child would remain a part of their biological family and would not become equivalent to biological children of the guardian and does not have the legal status of an adopted child.

But, according the Juvenile Justice Act, 2000 it can surpass the Muslim personal laws and gives right to any competent Muslim couple to adopt under the provisions of the secular law. This act can also be coupled with other secular acts such as the Special Marriage Act, 1954, where couple can adopt a child irrespective of race and religion.

Adoption Under Christian Law

There are no mentions of adoptions under the Christian personal laws in India, however if a custom regarding adoption prevails in the community, there would be no trouble in adoption. This was discussed in the case of Philips Alfred Marvin vs. V.J. Gonsalves, where the court held that the adoption process undergone in a church is valid even when there are no customs for such act. It also held that adoption is recognized under Christian law and the adopted child had the same rights as that of a natural child of the adoptive parents.

Adoption Under Parsi Law

The Parsi personal laws are recognized under the Parsi Marriage and Divorce Act, 1936 and part 3 of the Indian Succession Act, 1925. But there are no provisions for adoption.

But there is a custom among Parsis known as 'palak' where a widow of a childless Parsi can adopt a child after 4 days of her husband's death so that certain religious ceremonies can be performed annually. This child however acquires no property rights.

Adoption In Secular Laws
The Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted to rehabilitate orphaned, abandoned and surrendered children and mentions adoption as a way to facilitate rehabilitation of children. Section 41 of this act provides the process of adoption under secular laws.

The children who are given up for adoption are checked by the Child Welfare Committee established under section 29 of the Juvenile Justice (Care and Protection of Children) Act, 2000.

1. They make sure that the adoptive parents will stick to the adherence of the guidelines and provisions specified by the State or Central Adoption Resource Authority (CARA) by the central government.
2. The court checks the background of these children before they are given up for adoption.
3. The parental rights of these children will be cut off once the clearance is complete by the Child Welfare Committee.

Under section 41(5) of the Juvenile Justice (Care and Protection of Children) Act, 2000, a child is eligible for adoption if:

1. The child is abandoned and below 2 years of age can be declared free for adoption after 2 months by 2 members of the committee, if the child is above 2 years of age, the time extends to 4 months.
2. The child is surrendered and the period of 2 months for reconsideration by the parents is lapsed.
3. If a child is capable of giving consent, then the consent is obtained for this purpose.

Central Adoption Resource Authority Guidelines: This body is responsible to facilitate the procedure for adoption. This committee also validates the eligibility of the parents who are fit for adoption. It relieves prospective adoptive parents from having to go through tiring procedures at different adoption centres. This also mentions certain guidelines to be followed before an adoption can take place, some of these are as follows:

1. Adoptive parents have a choice to select an adoption agency and state.
2. The maximum combined age for the married couple increased from 105 to 110 to encourage adoption of older children.
3. Minimum 25 years age gap between the child and the adoptive parents.
4. There is clarity in adoption of special needs children where older children and siblings are no longer considered to be of special needs.
5. Inter-state adoption is made simpler to boost adoptions, no clearance required from State Adoption Resource Agency is required for domestic adoption.

Is Adoption A Fundamental Right?
In the adoption of Payal by Sharinee Vinayak Pathak, The High Court of Bombay observed that adoption is equivalent to right to life as mentioned under article 21 of the Indian Constitution. The court allowed the adoption of same sex children and claimed that Juvenile Justice Act, 2000, should be given way and be overruled over the Hindu Adoption and Maintenance Act, 1956, which would allow the parents to adopt a child irrespective of the number and sex of their biological children.

In these cases, we observed the courts playing the role of judicial activism and paved way for a right of adoption by interpreting article 21 of the Indian Constitution, but in the case of Shabnam Hashmi vs. Union of India, the court granted the adoption rights based on the statutes of the Juvenile Justice Act, 2000, by treating it as a secular law which would allow anyone from any religious background to be able to adopt a child. But, the court denied that the right of adoption as a fundamental right under article 21 of the Indian Constitution. After this judgement, it was official that the right of adoption is not a fundamental right.

Table Of Cases:

1. Bal Gangadhar Tilak vs. Shrinivas Pandit: In this case, the court held that the purpose of adoption under Hindu law is not just to carry forward the name of the father, but also a means through which various religious and cultural practices can be performed, which mandated the requirement of a son.
    
2. Sawan Ram vs. Kalawati: In this case, it was argued whether the adoption by a widow would lead the child to legally become the natural child of the deceased husband also. The court held that as adoption would need the consent of both the parents before adoption, the child after adoption would legally become the natural child of the other spouse as well. In this case, the child legally became the natural child of the deceased father also.
    
3. Philips Alfred Marvin vs. V.J. Gonsalves: In this case, an adoption process was done by Christian parents facilitated by the church procedures even when there are no customary laws which stated that adoption can be done in a church. The court played a part in judicial activism and held the adoption valid again by referring to Article 21 of the Indian Constitution.
    
4. Payal Sharinee vs. Vinayak Pathak: The petitioner had a daughter and had custody of another girl of five months of age, whose parents legally gave up the custody of that girl. The girl resided with the petitioner for 4 years and then the couple decided to adopt her, but there was a restriction to adopting same-sex children because of the Hindu Adoption and Maintenance Act, 1956. The court held that the Juvenile Justice Act, 2000 should overrule the personal laws according to Article 21 of the Indian Constitution and granted the adoption rights to the adoptive parents.
    
5. Shabnam Hashmi vs. Union of India: In this case, a Muslim woman wanted to adopt a girl child, but adoption of a girl child is prohibited according to the Muslim personal laws. The court awarded the adoption rights as per the Juvenile Justice Act as a secular law for adoption, but the court did not see it as acting under Article 21 of the Indian Constitution this time and stated that the parliament should look into the Uniform Civil Code as under Article 44 and mentioned the need to change the adoption rules as per the constitution.

Conclusion
The right to adoption is currently not yet a fundamental right. The right can only be granted from the personal and secular laws which are Hindu Adoption and Maintenance Act, 1956 and the Juvenile Justice Act, 2000. However, there would be many consequences towards making it a fundamental right where a child could be adopted for immoral and illegal purposes for begging, child marriage, etc.

The main objective of the judiciary should be to safeguard children and help them see a better future in a new family. Adoption should instead be treated as a moral duty instead of a right as it would provide home for orphans and abandoned children. This would also solve the issue of overpopulation and would help in recognition of rights of the adopted children.

Bibliography:

• Family Law Lectures: Family Law I 3rd Edition, Prof. Kusum, published by LexisNexis, New Delhi (India)
• Marriage and Divorce Laws published by Professional Book Publications