INTRODUCTION
Adoption is the permanent legal transfer of all parental rights from one person to another or a couple. Adoptive parents have the same rights as biological parents and adopted children enjoy all of the same social, legal, emotional, and kinship benefits as biological children.[1] Initially, Indian society was not very open-minded about adoption, and this process was influenced by societal thinking and standards, but slowly, people’s mindsets on this subject have started changing. Parenting is a big responsibility that demands a lot of patience and hard work, but it is also an experience that everyone wants to have. Due to one or the other reasons and difficulties, a husband and a wife are sometimes not able to conceive. Sometimes, despite being capable of conceiving, parents want to adopt a child. In any of these cases, adoption becomes a great option. To adopt a child, the prospective parents have to go through many types of processes, and therefore, there is a law for adoption in India. But many times, people are not able to adopt a child due to a lack of knowledge of the adoption law. This article aims to discuss the laws and procedures for child adoption in India.
LAWS GOVERNING ADOPTION
There are three main laws on child adoption in India. The Central Adoption Resource Authority (CARA), an agency working under the Ministry of Women and Child Development, Central Government, acts as the nodal agency for the overall compliance of these laws.
- Guardians and Wards Act, 1890
Adoption laws do not exist for Muslims, Christians, or Parsis, so they have to go to court under this Act.[2] They can only adopt a child who is in foster care, and the foster child is free to dissolve all ties with the guardians once he or she reaches the age of majority. Under this act, adoption can be made from an orphanage with the approval of the court. The adoptive couples in this case are guardians, not parents, of the adopted child.[3] The child has no right to inherit or use the surname of their parents or family.[4]
- Hindu Adoption Maintenance, 1956 (HAMA) Act
“Any male Hindu (including Buddhist, Jain, or Sikh by religion) who is of sound mind and is not a minor is eligible to adopt a son or daughter under this Act. However, if such a man had a live spouse at the time of adoption, he could only adopt a child with his wife’s agreement (unless she had been declared incompetent to give her consent by the court). Any Hindu woman (including Buddhists, Jainas, and Sikhs) who is not married, or who is married but whose husband is deceased, her marriage has been dissolved, or her husband has been declared incompetent by the court, can adopt a son or daughter. Adoption by Hindu couples or single parents is subject to specific conditions. If a Hindu male or female adopts a son, there must be no living son in the party’s subsequent three generations (whether by legitimate blood relationship or adoption) during adoption. Any Hindu male or female who adopts a daughter should not have any daughters or son’s daughters during adoption. In the case of a male adopting a daughter, the adoptive father must be at least twenty-one years older than the child. In the case of a woman adopting a son, the adoptive mother must be at least twenty-one years older than the child.”[5]
- Juvenile Justice (Care and Protection of Children) Act, 2015
“This Act governs the adoption of abandoned, surrendered, or abused children. There is currently no specific law governing the adoption of children in India by foreign nationals or non-resident Indians, but the Guidelines Governing Adoption of Children, 2015 govern the process. In the absence of a concrete act governing intercountry adoption, this act’s procedures are followed.”[6] “This act does not apply to adoptions made under the Hindu Adoption Maintenance Act (HAMA) of 1956. A child welfare committee, under section 37 of the JJ Act, 2015, and regulations 6 and 7 of the AR, 2017, can legally declare an orphaned, abandoned, or surrendered child free from adoption, as well as children up to the age of 18. Male and female capacity under this Act can be grouped under the umbrella term “prospective adoptive parents,” as defined by section 57 of the JJ Act 2015 and regulation 5 of the AR, 2017. The prospective parents must be mentally and physically sound and healthy. They must be fully prepared to adopt the child and offer a good upbringing. Both spouses must agree in the case of married couples. Adopting a girl child is not possible for a single man. At least two years of marriage should be enough for any couple to have a child. The age gap between the adoptive child and the adoptive parents should be no less than twenty-five years. Couples with three or more children are not eligible for adoption unless they have an exceptional need, as defined by 2(12) of AR, 2017.”[7]
PROCEDURE FOR ADOPTION
The Central Adoption Resource Authority oversees the adoption process in India, which is governed by various laws.[8] As mentioned on CARA’s official website, parents who intend to adopt a child must first register online with CARA, where they can indicate their preferences and upload required documents. After the registration, the parents can choose a specialized adoption agency based on their location for a home study conducted by a social worker. The report is valid for three years and confirms the parents’ suitability to adopt a child. They are provided referrals of children who are legally available for adoption after they have been judged to be eligible and suitable. Within 48 hours, prospective adoptive parents must reserve a child who has been referred to them.[9] The parents must then consult with an advocate and present all of the documents to the court for final approval. When this is done, the child becomes the legal child of the parents. The court will do a follow-up to verify the child’s proper well-being.[10] It can last for a year or two.[11]
CONCLUSION
No one wants to be deprived of the happiness of being a parent and having children. The happiness of motherhood and fatherhood can be fulfilled by adopting a child and taking care of them. Adoption gives both a parent and a child a family. Rules and regulations regarding child adoption have been made all over the world, including in India, which are mandatory to be followed while adopting a child.[12] Sometimes, parents take the wrong route and adopt a child directly from the nursing home through a broker to avoid the hassles of the government process. This could land them serious legal complications. Therefore, one should adopt children only from specialized adoption agencies that are recognized by the governments. The legal process of adoption must be strictly followed, no matter how cumbersome it may seem.
Author(s) Name: Sakshi Swapnil (Agnel School of Law)
References:
[1] Amit Sinha, ‘Child Adoption Law in India- A Step by Step Guide’ (Medium, 8 May 2019) <https://medium.com/@sinhaamit095/child-adoption-law-in-india-a-step-by-step-guide-6d7c84648da1> accessed 25 March 2022
[2] Advocate Chikirsha Mohanty, ‘Child Adoption laws in India’ (Lawrato, 15 April 2021) <https://lawrato.com/indian-kanoon/family-law/child-adoption-laws-in-india-2019-492> accessed 25 March 2022
[3] ‘Child Adoption in India: Rules, Process and Laws’ (Firstcry Parenting, 6 August 2019) <https://parenting-firstcry-com.cdn.ampproject.org/v/s/parenting.firstcry.com/articles/a-complete-guide-to-child-adoption-in-india/?amp_js_v=a6&_gsa=1&&usqp=mq331AQKKAFQArABIIACAw%3D%3D#aoh=16478426640158&referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Fparenting.firstcry.com%2Farticles%2Fa-complete-guide-to-child-adoption-in-india%2F> accessed 25 March 2022
[4] M.S. Bushra Tungekar, ‘How to adopt a relative’s child in India’ (Ipleader, 23 December 2020) >https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/adopt-relatives-child-india/?amp_js_v=a6&_gsa=1&=1&usqp=mq331AQKKAFQArABIIACAw%3D%3D#aoh=16478460297551&referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Fblog.ipleaders.in%2Fadopt-relatives-child-india%2F> accessed 25 March 2022
[5] Pragati Singh, ‘All you need to know about child adoption laws in India’ (Ipleader, 20 March 2017) <https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/all-you-need-to-know-about-child-adoption-laws-in-india/?amp_js_v=a6&_gsa=1&=1&usqp=mq331AQKKAFQArABIIACAw%3D%3D#aoh=16478426640158&referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Fblog.ipleaders.in%2Fall-you-need-to-know-about-child-adoption-laws-in-india%2F> accessed 25 March 2022
[6] Child Adoption in India: Rules, Process and Laws ( n 3)
[7] Pragati Singh ( n 5)
[8] ‘Procedure of Adoption in India’ (Lawpanch, 26 May 2021) <https://lawpanch.com/procedure-of-adoption-in-india/> accessed 25 March 2022
[9] Disha Roy Choudhury, ‘Girl child is adopted more in India: All you need to know on adoption, from CARA’ (India Express, 8 May 2021) <https://indianexpress-com.cdn.ampproject.org/v/s/indianexpress.com/article/parenting/family/child-adoption-cara-india-girl-all-you-need-to-know-6153189/lite/?amp_js_v=a6&_gsa=1&usqp=mq331AQKKAFQArABIIACAw%3D%3D#aoh=16478426640158&referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Findianexpress.com%2Farticle%2Fparenting%2Ffamily%2Fchild-adoption-cara-india-girl-all-you-need-to-know-6153189%2F> accessed 25 March 2022
[10] Ankita Saria, ‘Child Adoption in India-Laws & Procedure’ (Finology Legal) <https://blog.finology.in/Legal-news/child-adoption-india> accessed 25 March 2022
[11] Procedure of Adoption in India (n 8)
[12] Disha Roy Choudhury (n 9)
