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Adoption Laws In India

“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.[1]

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.[2]

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[3],where under section 41(3) of the JJ Act, CARA has framed a set of guidelines.

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.

Hindu Male
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 insanity.
# 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.[4]
# 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 or signs.[5]

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 unsound mind.
# 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.[6]

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[7],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 complied with.

Hindu Female
Section 8 of the HAMA enables the wife to adopt a child by fulfilling the following conditions:
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.[8]

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
Under Hama
Under Cara

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.[9]

[3]AIR 1984 SC 469.
[4]Babubarelal v. Gulzari Devi (1979 All LJ 1333).
[5]Ambrish Kumar v. Hatu Prasad (1981) HLR 781.
[6]Supranote 2.
[7]1989 JLJ 387 (Madhya Pradesh High Court).

Written by: Shubham Mongia

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