ADOPTION LAW IN INDIA

This article was written by Aman Singh, a student of University of Petroleum and Energy Studies, Dehradun. 

Being a parent wasn’t just about bearing a child. It was about bearing witness to its life.”

Jodi Picoult, Handle with Care

Adoption has been always an important culture in Indian society has been followed for many decades now but for the matter fact there has been only one personal law till date which governs adoption law. India is a country of Diversity and many important religions exists here but no significant recognition of their personal law has been made as far as adoption law is concerned.
Hindu religion is one religion which expressly mentions that one son child can be adopted to continue the lineage of family and is governed by Hindu Adoption and Maintenance Act, 1956. Which says you can adopt a child of each sex but no two children of the same sex which means if you have a son, you can adopt only a female child and vice-versa.[1]

There are other legislations which governs adoption law in India like The Guardians and Wards Act, 1890 (GAWA) as we discussed earlier that HAMA is the only legislation which deals with the Personal law I.e. Hindu Law but question arises how do Muslims, Cristian, Parsi adopt a child? Answer to this question was The Guardians and Wards Act, 1890. It needs to be noted that under this legislation.

 Adoption as a legal concept was available only among the members of the Hindu community except where custom permits such adoption for any section of the polity. Only Hindus were allowed to legally adopt the children and the other communities could only act as legal guardians of the children. The religion-specific nature of adoption laws was a very retrograde step. It reinforced practices that were unjust to children and hindered the formation of a Uniform Civil Code.

There has been an introduction of the juvenile justice (care and protection of children) act, 2015 which is to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, hereinunder and for matters connected therewith or incidental thereto.[2] In the land mark judgement[3] of one case Justice Bhagwati said ‘no child can grow his full stature, outside the framework of a family’ under this act A person can adopt more than one child and the reason why this Legislation is called as secular is because a person of any religion can adopt child under this Act.  One can say Juvenile Justice Act is a major step towards achieving Unified Civil Code. When juvenile Justice Act, 2000 was enacted Central Adoption Agency by the Government of India to facilitate adoption, every person who is otherwise eligible, no matter what his/her religion, is free to adopt an orphan child only unrelated orphans can be adopted as well as this act is applicable to children who have been abandoned or abused and not to those children who have been voluntarily put up for adoption. Whereas under HAMA children of close relatives can also be adopted.[4] The Central Adoption Resource Agency will frame rules and regulations for adoption of orphaned children. Few rules framed by CARA include priority to Indian parent for adoption and inter country adoption will only take place when no Indian adoptive parents are available within 30 days of child being declared free for adoption. Adoptive parents should be financially and physically sound. Buying and selling of a child attracts imprisonment up to five years.

As a conclusion it is difficult to predict whether juvenile justice act is a boon or bane and it would also be quite early to do that now the question arises even if these statues and laws come into force but shouldn’t there be some agency who look into proper implementation of this secular law, are CAR, NCPCR (National commission for Protection of children rights set up in March 2007 under the Commission for Protection of Child Rights Act, 2005 with their motto ‘to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India and also the UN Convention on the Rights of the Child.[5]’) and SCPCR(State commission for protection of children rights) enough to handle all the mess that have been going on in our country because of weak adoption policies, another major drawback of adoption law in India is that people are not well aware of these rights or we can say laws  that can be exercised by the people for the common welfare and at this growing rate of population every person must think about adoption child with a common objective to eradicate poverty and malnutrition. One thing that can be said it’s noble or depraved for the adoption policy is that adoptive parents can ask for specific child with particular details like age, gender (in case if this is their first child) health conditions et cetra if this specifications would have been limited to this there would not have been any argument regarding the depraved part of this policy but for the record a child can be asked by the adoptive parent on the basis of their color and religion. As per the demand of adoptive parents children are brought before them for the match up and when the parent give proper desire to adopt the child and entire adoption process has been completed which could take months, parents are then allowed to welcome the child to their family.

[1] Hindu adoption laws & interpretation by different high courts, deepak kumar verma, NUJS, Kolkata.

[2] The juvenile justice (care and protection of children) act, 2015 no. 2 of 2016.

[3] LaxmikantShukla Vs Union of India.

[4] Do’s and Don’ts in Adoption Law, Know Your Rights.
http://www.manushi-india.org/pdfs_issues/PDF%20143/Adoption%20Act%20pg%2043-44.pdf.

[5] http://ncpcr.gov.in/