What does law say on adoption?

Qs. What is Adoption? 

The process of adoption legally transfers all parental rights from biological parents to another person or couple. There is no difference between adoptive parents and natural parents’ rights. The adopted children like biological children have social, legal, emotional and kinship benefits. However, this definition can vary with the personal law.

Qs. What are the provisions of adoption under different personal laws in India?

Personal laws do not provide adoption for Muslims, Christians and Parsis. Hence, they usually go for child guardianship through the Guardians and Wards Act of 1890.

In Mohammed Allahabad Khan v. Mohammad Ismail, it was held that there is nothing in the Mohammedan Law like adoption of the Hindu System. The ‘Acknowledgement of Paternity‘ under Muslim Law is the nearest approach to adoption. It is the principle which establishes the legitimacy of the child. The paternity of that child is established upon him, where a Muslim acknowledges a child to be his legitimate child.

The Parsis and Christians are similar on the issue of adoption. Like Muslim Law, the Parsis in India do not acknowledge adoption. They too can adopt a child from an orphanage with the permission of the concerned court under the Guardian and Ward Act, 1980 (GWA). Similarly, for Christians too they can only take a child for foster care. Once the child is 21 years of age, he/she is free to choose to live with the guardian or separate from adopting parents. Also, adopted child does not have any legal right to inheritance of the property.

The JJ Act overrides the Personal laws and cannot come in the way of a person, who chooses to adopt a child under J.J. Act.

Under GWA, the adopting parent may only take one child into foster care at a time. Once a kid achieves the age of majority, i.e. He or she is free to dissolve any ties. In addition, such a child is not legally entitled to inherit.

In the case titled Shabnam Hashmi v Union of India (2014) 4 SCC 1, the Supreme Court declared that the right to adopt a child by a person as per the provisions of the Juvenile Justice Act would prevail over all personal laws in the country. JJ Act is the secular Act, and anybody, irrespective of religion, can adopt the Act. Nothing in this Act shall apply to adoption under HAMA (Section 58 (1) of the JJ Act). Even inter-country adoption are governed under the JJ Act.

Qs. What are the requisites for a valid adoption under the Hindu Law?

 Section 6 of the HAMA provides for requisites of a valid adoption states that no adoption shall be valid unless the fitness of the adopting person, person giving the child in adoption has the capacity to do so and the child being taken is capable of adoption as per law.

 Section 7 and Section 8 of the HAMA states the capacity of a male and female Hindu to take in adoption.

• General condition of mind relates to unsoundness of mind. All condition of insanity including epilepsy, idiocy and lunacy will come under the unsoundness of mind.
• Hindu male or female married under the Special Marriage Act has also the capacity to adopt.
• A major Hindu male of sound mind can adopt whether he is a bachelor, widower, divorcee, or a married person.
• For a married Hindu male, it is obligatory to obtain the consent of the wife. For more  than one wife, consent of all wives is necessary. Without the consent of the wife adoption is void. If the consent of the wife living with the husband is taken but consent of wife living separately is not taken, the adoption is equally void.
• A Hindu female though not a married woman to adopt to herself in her own right.
• Hindu unmarried woman, widow or divorcee has the capacity to adopt. It has been held in Vijaya Laxman Vs V.B.T Shankar that where a widow adopts a child, she need not take the consent of the co-widow because she adopts the child in her own capacity.

A married woman has no capacity to adopt. She cannot adopt even with the consent of her husband. So, the position is that a married woman totally lacks capacity to adopt except in following cases: –

• If her husband has ceased to be a Hindu, finally and completely renounced the world or he has been declared by a court of competent jurisdiction to be of unsound mind.

Same sex children cannot be adopted under the HAMA. Court permission is required in some cases. Adoption is required in some cases.

Qs. What are the different types of a child adopted under the Juvenile Justice Act (J.J. Act)?

(a) any orphan or abandoned or surrendered child (OAS) declared legally free for adoption by the Child Welfare Committee.

(b) In-country/Intra-country a child of a relative defined under sub-section (52) of section 2 of the Act;

(c) Child or children of the spouse from an earlier marriage, surrendered by the biological parent(s) for adoption by the stepparent.

(d) In-country and intra-country adoption of the OAS child.

(Section 38 and 56 of the J.J. (C&PC) Act, 2015 and Regulation 4 of Adoption Regulations)

 Qs. What is the capacity of Adoptive Parents under the JJ Act?

JJ Act is for adoption of OAS child.

Section 57 read with Regulation 5 of the JJ act lays down the eligibility of prospective adoptive parents applying for adoption under the act,

• The adoptive parents must be mentally sane, financially sound, and physically fit.
• Parents with three or more children shall not be eligible to adopt a normal Orphan, Abandoned and Surrendered Child (OAS)
• Where the applicant is married, the consent of both the spouses is necessary.
• The Act also provides for adoption by a bachelor or divorced person but such adoption shall be subject to guidelines and rules framed by CARA.
• A single male is barred from adopting a female child.
• Prospective parents must also fulfil any additional criteria as laid by CARA.
• Minimum two years of stable marital relationship is important.

Qs. Is there any international convention to regulate intercountry adoption?

Yes, the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention) protects children and their families Against the risks of illegal, irregular, premature or ill-prepared adoptions abroad.

Qs. What is the procedure for inter-country adoption?

The procedure for inter-country adoption is as follows:

1. Counselling and preparation of Home Study Report(HSR) of Prospective Adoptive Parents by the Social worker of Authorised Foreign Adoption Agency (AFAA) or central authority (CA) for Hague Signatory Countries and Indian Mission for others
2. Registration of Prospective Adoptive Parents (PAP) in Child Adoption Resource Information & Guidance System  (CARINGS)  by Authorised Foreign Adoption Agency /central authority /Indian Mission
3. Uploading of Documents by AFAA/CA/Indian Mission
4. Initial approval by Central Adoption Resource Authority ( CARA)
5. Child Referral and Reservation through CARINGS
6. Child matching by State Adoption Resource Agency & acceptance by Prospective Adoptive Parents
7. No Objection Certificate by CARA
8. Pre-Adoption Foster Care (only few PAPs exercise this option)
9. Court Order, Conformity Certificate, Passport, Visa & Exit Visa for the child
10. Child Arrival, Citizenship, Post- Adoption Follow-up till 2 years

Qs. What is the status of Adoption from Non-Hague Convention Countries?

Despite the HC being in place, a majority of the countries are not a  signatory to it and thus many transnational adoptions take place outside the Convention. The procedure in the countries which are not a party to the conditions is less strict. Considering this fact, the non-signatories attract more people who want to go for inter-country adoption.

Qs. How long does it take to adopt a child from India?

Schedule XIV of the Adoption Regulations 2017 has specified the timelines for processes relating to the Adoption. Actual waiting depends upon several factors like choice of gender, age or medical condition of the child, preference of the state etc. However, presently there are more parents in the waiting, but fewer children available for adoption. Therefore, it is difficult to ascertain the time period.

Qs. What is the consequence of child adoption without a valid court order under the JJ Act?

Any person, who takes or sends a child to a foreign country or takes part in any arrangement for transferring the care and custody of a child to another person in a foreign country without a valid order from the Court, shall be punishable as per the provisions of section 80 of the JJ Act.

Qs. How long is the duration of adoption proceeding before court under the JJ Act?

The adoption proceedings shall be held in camera and the case shall be disposed of by the court within a period of two months from the date of filing as per the JJ Act.

Qs. What is the effect of adoption under the JJ Act?

With the adoption order coming into force, the child shall become the child of the adoptive parents as if he or she was born in new family for all purposes, including intestacy. The order will formally severe all the ties of the child in the family of their birth. However, any property which was vested originally  with the adopted child before adoption will continue to vest including with or without any conditions maintenance of biological family will continue to do so

Qs. In-country adoption can be preferred over inter-country adoption. True or False?

Lakshmi Kant Pandey Vs. Union of India, [ (1984) 2 SCC 244 ]

“Every effort must be made first to see if the child can be rehabilitated by adoption within the country. And if it is not possible, Then only adoption by foreign parents i.e. inter-country adoption should be acceptable. This principle stems from the fact that inter-country adoption may involve trans-racial, trans-cultural, transnational aspects, which may create problems for assimilation of child, in the adoptive family.”

• Expresses strong disapproval of keeping the applications pending for not less than 5 to 6 months and delay in disposal.
• Impresses upon the Courts that such proceedings must be disposed of at the earliest and in any event, not later than 2 months from the date of application.

There should not be delay in deciding these applications since the admission in school, getting community service, birth certificates is delayed. Parents in adoption cases are mostly from out of station. They have to travel from far of places to appear before the Court. They suffer, as they could not continuously apply for leave from the employer if the matter is adjourned again and again.

Qs. Is it essential under any Act that the adoptive parents must be infertile?

None of the 3 Laws, viz. J.J. Act, HAMA and Guardians and Wards Act require adoptive parents to be infertile to get an adopted child.

Qs. Can knowledge about the biological parent be given to the adopted child?

That discretion has to be exercised by them, and they are entitled to furnish information about biological parents to the adopted child after the child attains maturity [Mrs. Daksha Van Dijick Vs. Commissioner of Police & Ors. Bombay High Court Order dated 22nd October 2010 passed in Criminal Writ Petition No.1502 of 2010]. The agency, which has enabled the adoption, cannot be compelled to disclose such information.

 Qs. Are there any gender restrictions for adoption under the JJ Act?

J.J. Act does not incorporate a restrictive condition foreclosing the right of parents to adopt another child of the same gender. The Act recognizes the right of parents to adopt children irrespective of the number of living biological sons or daughters.

 Qs. How should the adoptive parents be treated?

1. Selvaraj Vs. Others [ 2008 SCC OnLine Mad. 567] Adoptive parents must be treated with respect and due courtesies. It must be understood that they are not litigants in any adversarial proceedings before the Court.

Qs. What is the adoption status under the Guardianship and Wards Act (GWA)?

The Guardian Wards Act 1890 is a secular law regarding child guardianship applicable to all India except Jammu and Kashmir. This law is particularly relevant to Muslims, Christians, Parsi and Jews because their laws do not permit full adoption. It is applied to all children regardless of their race or creed. Non-Hindus in India do not have a legal right to adopt a child; they may only acquire a ‘guardianship’ under the Guardian and Ward Act, 1980. On the other hand, guardianship does not provide the same status as a biological child, and this Act only acknowledges a guardian-ward relationship that lasts until the ward ages of majority.

 Qs. What is the preference that the adopting parents can ask for with reference to the child under the JJ Act.

• Age
• Gender of the child
• Religion
• Skin color
• Health condition

Qs. What is Pre-Adoption Foster Care?

The child is taken to pre-adoption foster care center by the adoptive parents. It helps them to understand the habits of the child before taking the child home. This process is done after the petition is signed in the court under the J.J. Act,

 Qs. What is Home Study and Counselling under the J.J. Act?

The registration agency’s social worker will visit the adoptive parent’s home for a home study. The agency may also need the adoptive parents to attend counselling sessions to make them understand the preparation motivation, strengths, and weaknesses of the adoptive parents. The home study needs to be completed within three months from the date of registration and then can proceed to a counselling session and then reported to the honorable court.

 Qs. What is the role of CARA?

Central Adoption Resource Authority (CARA) is the nodal agency to monitor and regulates in-country and intra-country adoption. It is a part of the Ministry of Women and childcare.

 Qs. Can adoption be done under consideration under the HAMA?

Section 17 prohibits any kind of payment or other reward in consideration of the adoption of any person, and no person shall give or agree to give to any other person any payment or reward.

Qs. Can a Hindu couple governed by HAMA with a child of their own adopt a child of the same gender under J.J. Act?

Yes. The Bombay High Court has ruled that it must harmonize personal law with secular legislation. Section 11 of HAMA stipulates a prohibition on adopting a child of the same gender cannot apply to adoption under J.J. Act. [In the matter of adoption of Payal @ Sharinee Vinay Pathak & Anr. Vs. Indian Adoption, (2010) 1 Bom. C.R. 434 ].

 Qs. Can adoption be cancelled under HAMA?

Section 15 under HAMA states that valid adoption is not to be cancelled by the adoptive parents or any other person. Also, the child cannot renounce their status and return to their birth family.

Qs. How does marriage impact the child when adopted by a single parent, widow or divorcee who subsequently gets married?

A Hindu with a wife living and adopting a child shall be deemed the adoptive mother. [Section 14(1)]. If the adoption is made with the consent of more than one wife, the senior most among them shall be deemed to be the adoptive mother and the others to be stepmothers. [Section 14(2)] If a widower or a bachelor adopts a child, then the wife he subsequently marries shall be deemed the stepmother of the adopted child. [Section 14(3)]. If a widow or an unmarried woman adopts a child, then the husband she subsequently marries shall be deemed the stepfather of the adopted child. [Section 14(4)]

Qs. What does HAMA provide for adoption?

Section 10 of HAMA states that the person to be adopted must be a Hindu and has yet to be adopted. They should not be married unless there is a custom, a usage applicable to the parties that permits a person who is married or has been adopted. The child should not have completed the age of 15 years unless there is a custom, a usage applicable to the parties which permit persons who have completed the age of 15 years to be taken in adoption.

Other requirements for a legal adoption get outlined in Section 11. So, as per the section, it’s essential to meet the following criteria for a valid adoption:

• If the adoption is for a boy, the adoptive father or mother must not have a Hindu son living at the time of the adoption by any relation (whether by genuine blood tie or adoption).
• If the adoption is for a girl, neither the adoptive father nor the adoptive mother must have a Hindu daughter alive at the time of the adoption.
• The age gap between the adoptive father and the daughter must be twenty-one years if a male adopts a female.
• The age gap between the adoptive mother and the son must be twenty-one years if a male adopts a female.
• Two or more people cannot adopt the same child simultaneously.
• The adoption must be given and adopted by the parents or guardians involved or under their authority to transfer the child from the birth family to the adoptive family.

Qs. I have found a baby on the roadside; can I adopt that child?

1. No, you cannot adopt the child directly.
2. If you find any abandoned child in need of care and protection, you can contact any of the following:

(a) CHILDLINE (Toll-Free Number-1098)

(b) Local Police

(c) Any Specialized Adoption Agency (SAA)

(d) Child Welfare Committee (CWC)

(e) District Child Protection Unit (DCPU).

Note: Failure to do so may attract penal provisions of 6 months imprisonment or a fine of Rs 10,000 or both as per Sections 32, 33, and 34 of JJ (C&PC) Act, 2015.

Qs. Can we get the details like caste, date and time of birth of the adopted child? Can I get a child matching to my complexion and features?

No, details like caste, date & time of birth etc., are generally not available for orphaned or/abandoned children who are placed for adoption. No, matching is not done based on complexion and features. Once the seniority of the PAP’s gets due, referrals will be shown based on preferred age; gender, and state opted by the PAPs at the time of registration.

Qs. Can the adopted child claim right in property?

The adopted child becomes part of the new family and can stake a claim on their adoptive parents’ property, like a biological heir. Likewise, the adoptive father and his relations, too, are entitled.

According to the HAMA, the adopted children lose all their rights in their biological family after adoption, including the right to claim any share in the estate of the natural family or any stake in the coparcenary property. There may be an exception to the rule.

The adopted child has a claim on the property left to him in the Will of the adoptive parents.

Where the adoption was executed because of the death of the biological parents, or the child subsequently becomes dependent on the birth parents – he may seek a claim on their property.

Qs. What is the latest petition on Child development?

 A five-judge Constitution Bench of the Supreme Court began a historic hearing in April 2023 a batch of petitions seeking legal recognition for same-sex marriage, India’s national child rights body National Commission for the Protection of Child Rights in the petition has intervened and flagged concerns around adoption by same-sex couples. The NCPCR has submitted that laws such as the Hindu Marriage Act, 1955, and the Juvenile Justice Act, 2015, do not recognize adoption by same-sex couples.