The paper aims to present a comprehensive review of the laws surrounding adoption.
Adoption offers homeless, illegitimate and abandoned children an opportunity for family life in their best interests. Without it, such unfortunate children are often subjected to human trafficking, child labour and sexual violence. Through adoption they can find a loving home with parents who will give them equal opportunities like other kids do. In India the process of adoption is regulated by CARA, the Central Adoption Resource Authority.India boasts a diverse range of religions; however, there is no overarching adoption law governing them all. Presently, the singular personal legislation applicable to adoptions in India pertains exclusively to the Hindu Adoption and Maintenance Act established back in 1956.
The research paper provides a concise overview of adoption as outlined in the constitution, and explores the multiple legislations that govern this practice in India including The Hindu Adoption and Maintenance Act, 1956 and The Juvenile Justice (Care and Protection of Children) Act, 2015. Additionally, it delves into their respective requirements for eligibility alongside procedures involved throughout various stages. Moreover, it scrutinizes both advantages as well shortcomings with further recommendations put forth to enhance practices relating to adoption in India.
Keywords- The Hindu Adoption and Maintenance Act of 1956, Juvenile Justice (Care and Protection of Children) Act, 2015, Illegitimate, Adoption, Adoption laws
Introduction
Adoption refers to the social and lawful process through which a parent can assume the permanent responsibilities of parenting a child who is not biologically related to them.
The family plays a crucial role in shaping the life of a child by building their character and imparting vital social skills necessary for them to thrive as well-adjusted members of society. Unfortunately, not all children are fortunate enough to experience this firsthand due to an absence of parental figures or neglectful parenting which stunts their growth and development. Adoption gifts such children a family.
The act of adopting children is a phenomenal means to unite families. Not only does it provide significant advantages for orphaned children, but it also fulfils the long-standing desire of childless parents for gratification and inspiration that comes with raising kids.
Article 16 of Universal Declaration of Human Rights, establishes the right of men &
women to marry & found a family.
Practise of adoption in India traces back to ancient times.
In India, Hinduism stands as the prevailing religion which features a bountiful background of adoptees and adopters amongst its saints and royalty. The practice of adoption is evidently prevalent in two prominent Hindu epics- Mahabharat and Ramayana.
In the past, adoption was commonly practiced to preserve a family’s name and legacy through obtaining a male successor. According to Hindu beliefs, it is necessary for sons to conduct funeral rituals of their late parents or close relatives as an assurance for their spiritual well-being.
The Hindu Adoption and Maintenance Act of 1956, governs the adoption in Hindus, Jains, Buddhists and Sikhs.
Christian, Muslim and Parsi individuals are not bound by personal laws when it comes to adoption. Instead, they have the option of adopting a child under the Guardianship and Wards Act from 1890 in conjunction with the Juvenile Justice (Care & Protection) Act passed in 2015.
Research methodology
In order to conduct research on adoption laws in India, secondary sources were utilized. The methodology involved a thorough investigation of legal records and a careful analysis of existing blogs, articles and website data with the endeavour of acquiring an inclusive comprehension about the current state-of-affairs regarding adoptions in India
Review of literature
Kadusin & Martin defined as Adoption involves becoming a parent through a
legal and social process rather than through a biological one.
Section 2(2) of Juvenile Justice (Care and Protection of Children) Act, 2015:
Adoption means the process through which the adopted child is permanently
separated from his biological parents & becomes the lawful child of his adoptive
parents with all the rights, privileges and responsibilities that are attached to be
biological child
“No person shall be deprived of his life or personal liberty except according to procedure
established by law.”
Thus article 21 gives every child to live with dignity.
Adoption in India
The following three legislations govern adoption in India:
The Hindu Adoption and Maintenance Act of 1956,
The Guardians and Wards Act of 1890, and
The Juvenile Justice (Care and Protection) Act of 2000, amended in 2015.
The Hindu Adoption and Maintenance Act, 1956 (HAMA)
In India, the regulation of adoption and maintenance procedures among Hindus is highly significant due to The Hindu Adoptions and Maintenance Act of 1956. This act was established on December 21st in order to provide a thorough framework for legal matters pertaining to adoption within the Hindu community. The Hindu Adoptions and Maintenance Act has undergone modifications to adapt to evolving cultural norms.
Applicability
It covers all members of the Hindu community, including Sikhs, Jains, and Buddhists. The statute specifies who, for the purposes of this law, is a Hindu.
Hama is not applicable to other religious communities, Muslims, Christians and Parsis.
People outside of this group may find certain HAMA regulations to be relevant, particularly in adoption instances where the adopting parents are Hindus.
Requisites
No adoption shall be valid unless—
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption complies with the pertinent requirements stipulated by the legislation.
Requirements of adoption by a male (Section 7 of HAMA)
Sec 7 of the Act describes the eligibility criteria of a male for adopting a child
- Must be a major and has the capacity to take in adoption
- Must be of a sound mind means he should not suffer from any insanity or mental disorder/ illness.
- Must obtain his wife’s consent. The wife’s assent is not required if they are divorced, but if they are under judicial separation, the male needs to get her approval.
- Unless the court establishes that the spouse is incapable of giving informed consent, the spouse’s permission must be obtained.
Requirements of adoption by a female (Section 8 of HAMA)
according to section 8 of the HAMA, a female may adopt a child if she meets the requirements listed below.
- Must not be a minor and is capable to adopt.
- Must be of sound mind.
- If her spouse is still alive, she is not allowed to adopt a son or daughter without his approval unless he has fully and unconditionally given up on life, ceased to be a Hindu, or been found not to be mentally competent by a court of competent jurisdiction.
Who may be adopted?
Adoption as per the Hindu law
No individual may be placed for adoption unless the following requirements are met, specifically:
- The person is Hindu.
- If they haven’t been adopted already,
- If there is a custom or usage that applies to the parties and allows married people to be adopted, he or she has not married.
- Unless there is a custom or usage that applies to the parties and allows people who have reached the age of fifteen to be adopted, he or she has not reached the age of fifteen. Citation
Persons capable of giving in adoption:
A child cannot be given up for adoption by anybody other than their mother, father, or legal guardian.
If the mother and father are both deceased, have finally given up on life, have abandoned the child, have been found to be mentally incompetent by a court of competent jurisdiction, or if the child’s biological parentage is unknown, the guardian may, with the court’s prior approval, place the child for adoption with anyone, even the guardian.
Prior to authorizing a guardian for adoption, the court must be satisfied that the adoption will serve the child’s best interests, taking into account the child’s wishes concerning their age and comprehension. Additionally, the applicant for permission must not have received, agreed to receive, or been the recipient of any payment or reward in exchange for the adoption, other than what the court may authorize.
The Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act)
The earliest seeds of secular adoption law were sown by the Juvenile Justice (Care and Protection) Act of 2000, last updated in 2015.
Who may be adopted?
Adoption as per the JJ Act:
- Any relative may adopt a kid from another relative under the terms of this Act and the adoption guidelines established by the Authority, regardless of the child’s religion.
- A child not more than 18 years. (Section 2(12) of Juvenile Justice (Care and Protection) Act, 2015).
- According to Section 56(1), any orphan/ abandoned/surrendered child.
Eligibility of the Prospective Adoptive Parents (PAPs)
According to Section 57 of the Act:
(1) The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child to ensure a good upbringing to him.
(2) In case of a couple, the consent of both the spouses for the adoption shall be required.
(3) A single or divorced person can also adopt, as long as they meet the requirements in accordance with the provisions of adoption regulations framed by the Authority.
(4) A male who is unmarried cannot adopt a female child.
(5) Additional guidelines that might be specified in the adoption rules established by the authority.
Additional requirements
- The minimum age difference between the child and either of the prospective adoptive parents shall not be less than twenty-five years.
- Adoptions by stepparents and relatives are exempt from the age requirements for prospective adoptive parents.
- Couples who have three or more children shall not be given consideration for adoption, with the exception of adopting stepparents, relatives, or children with special needs.
The Guardians and Wards Act of 1890
The selection of guardians for minors in India is governed by the Guardians and Wards Act of 1890. Its chief aim is to safeguard the welfare of children, guaranteeing their access to proper care in a stable household when biological parents are incapable or unavailable to provide it adequately. This act pertains exclusively to Jews, Christians, Muslims and Parsis since their respective legal frameworks do not recognize adoptive rights.
The Central Adoption Resource Authority
CARA, the Central Adoption Resource Authority of India, is an officially mandated Government organization responsible for facilitating adoptions within India. Established in 1990 and operating under the jurisdiction of the Ministry of Women and Child Development, The Juvenile Justice Act of 2015 establishes a statutory entity. CARA’s main focus involves managing cross-border adoptions while promoting amicable relationships among all parties involved. Moreover, their key priority lies in ensuring children’s welfare throughout each step taken towards finding them a new home via adoption services.
Adoption procedure in India
Several steps are involved in the adoption procedure of India, which include:
Registration: To initiate the adoption process in India, one must first register with the Central Adoption Resource Authority (CARA). This organization serves as the central regulatory and monitoring body for adoptions within Indian territories.
Home study: Upon registration, a social worker will carry out a comprehensive examination of your aptitude as an adoptive parent which is commonly known as home study. This process encompasses interviews, background verifications and visits to the residence.
Referral: Once you’ve been approved for adoption, CARA will guide you towards a child who is authorized for adoption by law. You’ll receive information from them regarding the youngster’s background, medical history as well as other relevant details.
Acceptance: Once you are content with the recommendation, it is necessary to welcome and acknowledge the child by providing a letter of acceptance to CARA.
Legal formalities: to complete an adoption, it is necessary to undertake legal procedures such as submitting a request in court and obtaining authorization from the court that officially establishes you as the child’s lawful guardian.
Follow-up: Following the finalization of adoption, subsequent visits will be carried out to verify that the child is effectively adapting to their new residence.
Challenges
Even though adoption offers a nurturing and secure environment for vulnerable children, there exist difficulties and drawbacks associated with the practice of adoption within India Among the prominent concerns are:
Complex and time-consuming process:
The adoption process in India can be lengthy, complicated and bureaucratic, which causes delays in matching up adoptive children with eligible families, resulting in extended waiting times for the kids and frustration for the adoptive parents.
illegal adoption practices:
cases of unregulated and illegal adoption procedures in India. This involves the existence of unlicensed adoption organizations that take advantage of vulnerable children and biological parents, as well as infant trafficking and child sales.
Social stigma:
The notion of adoption can trigger disgrace and cultivate unfavourable attitudes in specific conservative societies, towards both adopted children and their families. Adoptees may encounter unjust generalizations or baseless opinions while adoptive households might confront social disfavour or even alienation as a consequence of this detrimental perception
Biological Progeny Aspiration:
Some families might prioritize the biological aspect of having children, leading to potential issues surrounding acceptance and unfair treatment among family members.
Gender bias:
Some areas of India may have a tendency towards desiring male offspring. This inclination can have an impact on the frequency of female children being adopted, resulting in an unequal number of girls remaining without adoption.
Financial constraints:
certain families may be discouraged from pursuing adoption due to the high expenditures that come with it, such as legal fees, home study cost, and travel expenses. Potential parents can be inhibited from moving forward with the adoption process due to these monetary constraints.
Significance
Through the adoption of children in India, families not only receive support but also contribute to society and the nation. Adoption brings significant advantages that extend beyond individuals’ fulfilment and enhance communities on a larger scale.
Resolving the orphan crisis:
By facilitating adoption, the population of orphanages can be minimized and children can find opportunities for improved living conditions in a nurturing familial setting.
Emotional support:
Adoptive families frequently offer emotional support and create a caring atmosphere that assists children in conquering previous traumas while fostering psychological resilience.
Cultural integrity
The amalgamation of various cultures in adoption serves as a catalyst for fostering cultural diversity and comprehension within families.
Financial security
Opting for adoption can ensure financial security, making it a preferable alternative to other fertility therapies. This enhances the prospects of fulfilling one’s desire of becoming parents for both individuals and couples.
Reducing poverty
Adoption presents opportunities to break the cycle of poverty that adopted children may have been subjected to. This is achieved through providing a stable home environment and academic resources, ultimately offering them an escape from possible future complications which could result in poverty.
Creating a family
Opting to become adoptive parents entails embarking on a journey that involves both moments of elation as well as obstacles, while simultaneously creating an exclusive and fulfilling family setup. Additionally, parentless children have the opportunity to receive affectionate nurture from their new guardians which is pivotal in cultivating an all-embracing familial alliance.
Suggestions:
- To prioritize the well-being of children, it is imperative to shift the adoption process from being centred around parents to centring on their needs. The integration of various laws governing adoption can significantly facilitate in bringing about this transformation.
- In order to enhance the adoption process and prioritize the welfare of children, it is imperative that adoption laws are fortified through careful review and revision. This entails minimizing delays, simplifying paperwork as well as clarifying any uncertainties or loopholes in current legislation while bolstering transparency throughout.
- Educating society about the benefits, processes and legal implications of child adoption is crucial to foster its acceptance as a reliable way of forming families. Additionally, promoting the notion that this alternative method holds equal value requires raising awareness free from any preconceived notions or prejudices.
- It is recommended that a thorough survey be carried out by the government to determine the primary cause for the decline in adoption rates witnessed in India.
Conclusion
The act of adoption is a commendable deed that brings happiness to youngsters who have experienced the lack of family and parental support. While resonating with the echoes of children’s giggles and mischievousness bouncing off the walls of a home, it simultaneously satisfies the longing in parents who have yearned for kids.
The adoption process follows the regulations outlined in the Juvenile Justice (Care and Protection of Children) Act, 2015 and guidelines established by the Central Adoption Resource Authority (CARA).
It is critical to acknowledge the adoption of children as a humane and practical option in India’s relentless advancement towards societal growth. By embracing this practice, we can not only tackle issues related to population imbalance but also promote cultural values like empathy, awareness, and communal accountability that aid in building well-rounded communities.
When considering adoption, it’s important for potential parents to keep the well-being and needs of their future child at top priority. This means approaching the process with a focus on what is best for the child while also recognizing there may be challenges such as setbacks or denials along the way.
Archita Sharma
Bharati Vidyapeeth, New Law College. Pune