“The bond that links your true family is not one of blood, but of respect and
joy in each other’s life.” - Richard Bach
In the course of transit from primitive to modern age, the concept of adoption
has undergone a radical change. Adoption, being mostly like other social
institutions is essentially a product of historical and evolutionary process.
Reforms related to the old Hindu law were seen and one of them was in guise of a
codified law on adoptions, called as Hindu Adoptions and Maintenance Act, 1956.
Section 2 of HAMA allows any person who comes within the definition of ‘Hindu’
to be eligible to take a child for adoption. Various progressive changes were
brought by this new codified law like adoption by female Hindu, girl child being
eligible for adoption etc.
Concept of Adoption
The reason why the concept of adoption was brought was giving the right to
family for the orphan, abandoned and surrendered children. The objective behind
bringing this concept was to secure performance of one’s funeral rights and to
preserve the continuation of one’s lineage. In order to restore the family life
to a child deprived of his or her biological family, the concept of adoption was
considered the best means.
There are many international conventions on Human Rights that expressly mention
the positive duty in order to provide protection and assistance to children like
Convention on Rights of Child, 1989 (CRC) which is a reservoir of various rights
which are concerned with children. The concept of adoption is not applicable to
other communities like Muslims, Parsis and Christians. For that, they recourse
to Guardians and Wards Act, 1890. Such a process makes him or her their child
not an adopted child. Under this, a child who turns 21 years remains no longer a
ward and assume individual identities. When comes to the orphan, abandoned and
surrendered children, these aforesaid enactments remain silent. For the adoption
of these categories, there was as such no codifies legislation.
In order to consider all these categories, laudable attempt was made by the
Juvenile Justice (Care and Protection of Children) Act, 2000. The reason why
such attempt is commendable is that such an enactment allowed secular adoption
of the child irrespective of his or her religious community. This enactment has
given the right to all citizens to adopt and all children to be adopted. As per
Supreme Court’s directions, Central Adoption Resource Authority (CARA) which is
the current apex controlling body in relating to the matters of legal adoption
which was based on the judgment inLakshmi Kant Pandey v.Union of
India,where under section 41(3) of the JJ Act, CARA has framed a set of
Capacity of The Indian Male And Female Relating To Adoption
As already discussed, there are two legislations that deal with the adoption of
a child. These legislations are:
1.The Hindu Adoption and Maintenance Act, 1956 and
2.The Juvenile Justice (Care and Protection of Children) Act, 2000
Capacity of the Hindu male and females to adopt a child is discusses under
section 7 and 8 of the HAMA respectively.
Under Section 7 of HAMA, following conditions are to be fulfilled so as to allow
a Hindu male to adopt a child:
1.He is a major
2.He is of sound mind
# The person who wants to adopt a child must not suffer from idiocy or
# The person who wants to adopt a child must have the capacity to understand
the provision of the Act.
# A strong presumption regarding favoring of mind is there.
# A person is said to be a person of sound mind if such person is deaf and
dumb but possessed with the capacity of expressing themselves through gestures
3.As per the declaration of the competent court, he shall not adopt any
child if he has a wife living at the time, except with her consent unless and
until the wife has renounced the world or her Hindu religion or has become
# The consent is not necessary in case of divorce but such consent is
mandatory in case if judicial separation.
# Prior to the civil adoption, the consent must be obtained and not later on
where the proviso is disregarded adoption is not valid.
4.At the time if adoption, if a person has more than one wife, it is
necessary to take the consent of all wives.
In the case of Bhooloram & Ors.v. Ramlal & Ors,a question was raise before
the court whether it is necessary to take the consent of all wives, if a person
has more than one wife living at the time of adoption?
It was held by the court that if a wife has absconded to any unknown place, she
cannot be construed as dead unless the ingredients of section 7 of the Act are
Section 8 of the HAMA enables the wife to adopt a child by fulfilling the
1.She is a major
# A woman gets the capacity to adopt a child even if she is herself unmarried
after she has completed the age of eighteen years.
# She is of sound mind.
# She is unmarried or incase she is married, her marriage has been dissolved
or her husband is dead or has renounced the world or has been declared as
incompetent by the competent court.
Capacity Under Juvenile Justice (Care And Protection of Child) Act, 2015
If a child is an orphan, abandoned and surrendered, a couple or a single parent
can adopt him or her. Where any adoption has been made under HAMA, the
provisions of this act shall not apply.
As per section 38 of JJ Act, 2015 and Regulation 6 and 7 of AR, 2017, Child
Welfare Committee can legally declare an OAS child free for adoption and the
Children up to the age of 18 years can be adopted.
The parents who have the capacity of male/ female under JJ Act, 2015 can be
commonly grouped under the umbrella term Prospective Adoptive Parent (PAP) as
per section 57 of JJ Act, 2015 and Regulation 5 of AR, 2017 as:
1.The prospective adoptive parents (PAP) should be physically fit,
financially sound, highly motivated and mentally alert in order to adopt a child
so as to provide a good upbringing to him.
2.The consent of both the spouses for the adoption shall be required in
case of a couple.
3.Subject to the fulfilment of the criteria, a single or divorced person
can also adopt in accordance with the provisions of CARA.
4.A single male is not eligible to adopt a girl child.
5.Only when the couple in a stable marital relationship for at least two
years, a child can be given in adoption.
After all the above mentioned requirements are fulfilled, the requisite
documents are submitted and the Adoption order has been obtained from the court,
the adoption will be completed in consonance with the procedures described under
Section 61 of the JJ Act, 2015.
Process For Adoption By Indian Male And Female
There is a tremendous improvement in the adoption laws for Hindu and so the
position of women in the society. But in case of Muslims, just because of lack
of uniform civil code on adoption, they cannot legally adopt a child. Only by
enacting uniform civil code, other religions in India will be allowed to adopt a
child legally and it will further help to improve the health of a childless
parents. The adopted child will get proper care and protection and will have a
bright future. No doubt, this is a complex process but if such thing is
implemented, every parentless child will go to school and will have a life which
he would have never dreamt of.
AIR 1984 SC 469.
Babubarelal v. Gulzari Devi (1979 All LJ 1333).
Ambrish Kumar v. Hatu Prasad (1981) HLR 781.
1989 JLJ 387 (Madhya Pradesh High Court).
Written by: Shubham Mongia