THIS ARTICLE WAS WRITTEN BY ANKESH KUMAR, A STUDENT OF ARMY INSTITUTE OF LAW.
Adoption is not a recent practice in India, since the ancient times adoption has been practiced in India and there were laws governing adoption in ancient India as well. The law relating to adoption is not the same for all communities in India. Since adoption also falls under personal laws, just like different personal laws for different religious communities, the law relating to adoption is also different for different communities. Currently there are three statutes governing Adoption in India and they are: The Hindu Maintenance and Adoption Act, 1956, The Guardians and Wards Act, 1890 and The Juvenile Justice Act, 2000.
THE HINDU ADOPTION AND MAINTENANCE ACT, 1956 (HAMA)
As the name itself suggests allows only Hindus to adopt and this Act is applicable to Hindus,Buddhists, Jains or Sikhs. As per this Act, any Hindu male/female, can adopt as long as he/she is of sound mind and not a minor and the child who is being adopted should be a Hindu and should be less than 15 years of age. But under this Act, a female can adopt only if:
(i) she is unmarried,
(ii) Or divorced,
(iii) or a widow,
(iv) He has renounced the world,
(v) Or he has converted to a different religion,
(vi) Or she has been declared to be of unsound mind by a Court and if a female/mother wants to give up her child for adoption only if the above condition (iii)-(iv) is applicable.
If a married Hindu man wishes to adopt, he must take the consent of his wife, unless: (i) she has renounced the world, (ii) or she has converted to a different religion, (iii) or she has been declared to be of unsound mind by a Court, and the same conditions are applicable if he wants to give up his child for adoption as well. If he has
more than one wife then in that case consent of all his wives is necessary, unless of course if any of the above mentioned is applicable to any one of his wives.
Adoption under this Act is irrevocable, in other words it’s permanent and the adopted child will be given the same status of a biological child, which means the adopt child will have a right to inherit the property of the adopted parents and other legal rights which a biological child will have. This Act allows adoption of two children, as long as both the children are of the opposite sex. Example-a couple having a daughter wishes to adopt a child, can only adopt a boy, they can’t adopt a girl as they already have a daughter. Or if a couple having no children wishes to adopt two children, will have to adopt girl child and a boy child. As per this Act, only the biological parents and guardian can give up the child for adoption. If a single male is adopting a girl child, he has to be 21 years older than the child he is adopting, similarly, if a single female is adopting a boy child; she has to be 21 years older than the child she is adopting.
THE GUARDIANS AND WARDS ACT, 1890 (GAWA)
This Act allows non-Hindus to adopt, and this was the first secular law before the Juvenile Justice (Care and Protection) Act of 2000, which allowed non-Hindus to adopt. This Act is applicable to Muslims, Christians, Parsis and Jews. Personal laws of non-Hindus do not recognize complete adoption. Since non-Hindus do not have law governing adoption, to adopt a child legally, they can only take the child in ‘guardianship’ under the provisions of The Guardians and Wards Act, 1890. Adoption under this act is not irrevocable like under the Hindu Adoption and Maintenance Act. The Act does not deal with adoption as such but mainly with guardianship. The process makes the child a ward, not an adopted child. Anyone under the age of 18 years can be a ward and both the spouses can be guardians. Under this law, once children turn 21 years of age, they no longer remain wards. They don’t have the same legal rights and status of a biological child, so they don’t have an automatic right of inheritance. But the adoptive parents can bequeath to these children through a will, but any ‘blood’relatives of the adoptive parents can contest this will. Unlike the Hindu Adoption and Maintenance Act, there are no age difference restrictions for single males/females to adopt a child. Also, the guardians or the Courts can revoke the guardianship; likewise the Court or any competent authority can appoint guardians. The Court/competent authority can decide whom to appoint as the child’s guardian. Unlike adoption there can be more than one guardian. In order to take a child under guardianship: the guardian needs to first file an application before the Court, stating that he is willing to act as the child’s guardian and the application must contain guardian’s information and the reasons for the guardianship. Then, once the Court admits the application, then the hearing will begin; the Court will look into all the evidence available before deciding if the said person should be appointed as a guardian. The Court while deciding should also consider the minor child’s preference, his/her age, sex, religion, the compatibility quotient with the guardian, the death of the parent, etc. This Act is applicable for inter country adoptions as well, in case a foreigner wants to adopt an Indian child, he/she must first become the legal guardian of the child and later once the Court is convinced that the foreign parents are fit to adopt the child, the said parents can legally adopt the child within two years after the arrival of the child in their country and as per the laws of their country.
THE JUVENILE JUSTICE (CARE AND PROTECTION) ACT OF 2000, (JJ ACT)
The Juvenile Justice Act is meant mainly for the care and rehabilitation of children in conflict with the law. But under this Act there is a provision for adoption of children who are in conflict with the law, as it is opinioned that rehabilitation of these children should be within the family structure and providing them with a better environment would be for the welfare of these children. Like the Hindu Adoption and Maintenance Act, adoption is irrevocable and the adopted child will have the same legal rights as the biological child would have. Religion under this Act is irrelevant and therefore this Act is known as secular law, because caste, creed and race of the adoptive parents and the child are not taken into consideration. The provisions relating to adoption is expanded under the Amendment Act of 2006. Under this Act, any Indian citizen, single male/female can adopt a child who is free for adoption. Although this Act covers all of India, it is only possible to adopt under this Act in areas where the Juvenile Justice Boards have been constituted. Under this Act the Juvenile Justice Boards are empowered to give children for adoption. Indian citizens, NRIs and non-Indians residing outside India can adopt a child from India. Under this Act every person who is otherwise eligible, is free to adopt an orphan child only unrelated orphans can be adopted as well. This Act is applicable to children who have been abandoned, abused, or in conflict with law and it is not applicable to children who have been voluntarily put up for adoption. Apart from these three statutes, the Central Adoption Resource Agency (CARA) also frames rules and regulations relating to adoption. Central Adoption Resource Agency is a statutory body under the Ministry of Women and Child Development, by the Government of India. It deals with all matters concerning adoption in India and frames rules and regulations relating to adoption. CARA’s aim is to help both Indian and foreign agencies involved with inter country and in-country adoption of Indian children. CARA provides information with regards to children available for adoption, and to regulate, mandate, monitor and develop programmes for rehabilitation of children through adoption.
Adoption gives a chance for childless couples/people to be parents and the adopted child a new home and family, and it is really unfair to give such a chance based on caste, religion and creed. One of the major limitations of the Hindu Adoption and Maintenance Act is that only a Hindu can adopt a Hindu child. But the Juvenile Justice Act on the other hand imposes no such conditions. Another setback of the Hindu Adoption And Maintenance Act is that it is Gender biased, as it can be seen clearly in the above section the rules relating to adoption for a Hindu man and woman is different, if a Hindu woman wants to adopt she has additional conditions than what is imposed on a Hindu man who wants to adopt a child. Efforts are made by the Government to introduce the Uniform Civil Code, which will enable most of the personals laws including laws related to adoption to be one and the same for all religious communities. Hopefully if the Uniform Civil Code is enacted then we will not have laws which enable adoption of children based on caste, religion and creed. Adoption under this Act is irrevocable, in other words it’s permanent and the adopted child will be given the same status of a biological child, which means the adopt child will have a right to inherit the property of the adopted parents and other legal rights which a biological child will have.
This Act allows adoption of two children, as long as both the children are of the opposite sex. For example, a couple having a daughter wishes to adopt a child, can only adopt a boy, they can’t adopt a girl as they already have a daughter. Or if a couple having no children wishes to adopt two children, will have to adopt girl child and a boy child. As per this Act, only the biological parents and guardian can give up the child for adoption. If a single male is adopting a girl child, he has to be 21 years older than the child he is adopting, similarly, if a single female is adopting a boy child; she has to be 21 years older than the child she is adopting.