Child Adoption in India- Laws & Procedure

7 Mar 2022  Read 9373 Views

‘Every child has the right to love and be loved’- Supreme Court (Laxmi Kant Pandey v. UOI)

The common thread that runs between Krishna, Sita, Kunti, Karna, Shakuntala, Satyavati is that they all were adopted. In this blog, we will look into the laws that govern adoption in India and also know the procedure for bringing happiness to one’s family. 

Which laws guide Adoption in India?

In India, the procedure to adopt is generally guided by the two major legislations:

  1. The Hindu Adoption and Maintenance Act, 1956 (hereafter called HAMA)

  2. The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter called JJ Act)

In exercise of the powers conferred by the JJ Act and in supersession of the Guidelines Governing Adoption of Children, 2015, the Ministry of Women and Child Development has framed Adoption Regulation, 2017. The Regulation provides an exhaustive process for adoption in India. 

What are the principles considered while adopting?

While adopting a child, one needs to ensure the following essential principles shall be considered:

  1. The child’s best interests shall be of paramount importance

  2. Preference shall be given to placing the child with Indian parents and in his socio-cultural environment

  3. Adoption to be mandatorily registered 

Who can be adopted?

The Adoption Rules provide that the following a minor child shall be eligible for adoption:

  1. If he/she is an orphan or abandoned or surrendered child, declared legally free for adoption by the Child Welfare Committee

  2. Is a child of a relative

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

The Regulation provides for an exhaustive table for ensuring the adoption is genuine. There shall be a minimum age gap of twenty-five years between the child and either of the prospective parents. 

 

Who can take in adoption?

Provision as per HAMA:

Aper Section 7, the following conditions must be satisfied for a Hindu male to take in adoption:

  1. He must be a major

  2. He must be of sound mind

  3. Consent of wife must be taken, except when:

  • She is dead or

  • She has ceased to be Hindu or

  • She has completely and finally renounced the world or

  • She has been declared to be unsound mind by a court of competent jurisdiction

In case the individual has more than one wife, it is mandatory to take consent of all of them.

Section 8 deals with the provision for the capacity of female Hindus to take in adoption and the following conditions needs to be satisfied:

  1. She must be a major

  2. She must be sound mind

  3. She is not married, except

  • Her marriage has been dissolved or

  • Her husband is dead or

  • Her husband has completely and finally renounced the world or

  • Her husband has ceased to be Hindu or

  • Her husband has been declared unsound by a court of competent jurisdiction

In Malti Roy Chowdhury v. Sudhindranath, the case related to comparison between male and female in adoption process wherein the court held that the wife cannot adopt even with the consent of the husband. But in the case of males, they must take in adoption either factually or legally only with the consent of the wife.

The above case was overruled in Brijendra Singh v. The State of MP and the court observed that a woman though married but living a life like a divorced is entitled to adopt. Court held that Section 8 of HAMA cannot be observed in a rigid sense. 

Provision as per JJ Act:

 According to the JJ Act, a single parent or even couple can take in adoption when the child is an orphan, abandoned, and surrendered. The scope of the JJ Act is wider when compared to HAMA. 

The Adoption Regulation provides the following criteria for the prospective adoptive parents:

  1. Parents shall be major and be physically, mentally, and emotionally stable, financially capable, and shall not have any life-threatening medical condition.

  2. Any prospective adoptive parent, irrespective of his marital status and whether he has a biological child, can take in adoption subject to following

  • the consent of both the spouses for the adoption shall be required, in case of a married couple

  • single female can adopt a child of any gender

  • single male shall not be eligible to adopt a girl child

  1. No child shall be given in adoption to a couple unless they have at least two years of a stable marital relationship.

 

What are the essential requisites for valid Adoption?

As per the provisions of HAMA, for an adoption to be valid following conditions needs to be complied with:

  1. To adopt a son, the adoptive parents must not have a Hindu son, son’s son, or son’s son’s son living at the time of adoption

  2. To adopt a daughter, the adoptive parents must not have a Hindu daughter, son’s daughter living at the time of adoption

  3. If the adoption is by male and the person to be adopted is female, the age difference between them shall be a minimum of twenty-one years. 

  4. If the adoption is by female and the person to be adopted is male, the age difference between them shall be a minimum of twenty-one years. 

  5. The same child shall not be adopted simultaneously by two or more persons.

  6. The child must be given and taken to adoption by the parents with the intent to transfer the child from its biological family to the adoptive family. 

In Hanmant Laxman Salunke v. Shrirang Narayan Kanse, the Supreme Court has expressed that the age difference between the adoptive parents and the child must be twenty-one years and the sane shall be mandatory to be observed.

In Ram Das v. Gandiabai, the court held that adoption cannot be proved merely on the ground that the stepparent spent on maintaining the child does not mean that the child had been adopted by him. Even after the same, the child shall be eligible to biological fathers’ property. 

In Nemichand Shantilal Patni v. Basantabai, the Court had observed that in case of lack of evidence that the child was given and taken in adoption by the parents, the actual adoption was held to be not taken place. 

Procedure to be followed for Adopting in India

STEP 1: The Adoptive parents need to get themselves registered with the Recognised Indian Placement Agencies (RIPA) and Special Adoption Agency (SPA). 

STEP 2: Once registration is done, the Agency shall conduct within three-month home study and counseling of prospective parents. The report of the same is submitted in court.

STEP 3: Agency will contact the parents after the child is ready to be given for adoption. All kinds of medical and physical examination reports of the child shall be given to the adoptive parents.

STEP 4: Once the parents agree the child shall be handed over to them after filing of documents.

STEP 5: The parents need to consult a lawyer and present all the documents before the court for final checks. Once the same is done, the child becomes the parents’ legal child. 

STEP 6: A follow-up is to be made by the court to ensure the proper well-being of the child. 

Conclusion

According to United Nations Children's Fund (UNICEF), India has 29.6 million orphaned and abandoned children. The Adoption procedure has a major difference when we look at the HAMA and JJ Act. Though the concept of the Uniform Civil Code has been provided for in the Constitution, the same is yet to see the light of the day. When it comes to adoption laws, a uniform practice needs to be brought in place as it is a life-changing event for so many children who otherwise would have gone into the darkness.

About the Author: Ankita Saria | 4 Post(s)

Final year Ba.llb. student from the University of Calcutta. Passionate about learning different skills. Loves law and believes in hard work.

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