ADOPTION LAWS IN INDIA
In a world where everyone and everything is thriving to be the best version of themselves, India is not far away. Human beings, a species whose intelligence and emotions are par any others’. How does one pass their inheritance, culture, history from one generation to another? It is through bearing children. Human life is not just about survival. Although survival is one of the reasons for rearing of children but it is not the only reason.
The satisfaction and happiness attached to raising a child and shaping them to become better human beings is treasured. To some, rearing children comes easy but this is not the case all the time. Some people are unable to rear a child due to medical reasons and some do not want to go through the whole gestation period while some want to give a child the perfect home that he/she deserves but could not have. This is where adoption comes into sight.
Over the period of time, the concept of adoption has undergone a radical change, from primitive to modern. Now, adoption is not something that came into effect in recent years. Like any other social institutions, adoption has evolved as a product of historical process. Earlier, adoption was considered as a taboo in Indian society but now it is spoken more openly and is not seen as an embarrassment.
THE CONCEPT OF ADOPTION
What is adoption? The transfer of all parental rights from one individual to another or a couple permanently is called adoption. The rights of an adoptive parent or couple and those of the biological ones are no different. In the same way, the benefits of social, legal, emotional, and kinship for an adoptive child are same as that of a biological child. The concept of adoption was introduced in society so that the family and the adopted child could have the rights they deserved. This was also done to keep in check any further problems that may occur if not properly managed.
Many a times one of the objectives for adopting a child is done to secure the lineage of the family that is adopting the child. Another reason why adoption was introduced was because a child, deprived of a natural and healthy family, could now be restored. Conventions like Convention on Rights of Child, 1989 (CRC) expressly mention the positive duty in order to provide protection. This is done through these conventions which is a reservoir of several rights present for children.
In some communities like Muslims, Parsis and Christians, the concept of adoption is not available. If someone from these aforementioned communities wants to adopt a child, he/she will have to recourse to Guardians and Wards Act, 1890. Through this Act a child is made his/her child but not an adopted one. Under this Act, when the child turns 21 he/she no longer remains a child of that person and can assume individual identities. The child does not even have the right to inherit the property. But this is not the case for the orphan, abandoned and surrendered children.
For these kinds of adoption, there was no codified legislation as such. Therefore, to consider all these categories various attempts were made by the Juvenile Justice (Care and Protection of Children) Act, 2000. This attempt to include all the categories was commendable because this sort of enactment allowed secular adoption of the child irrespective of his/her religious community. This enactment gave the right of adopting any child to any citizen of the country.
Hindu Adoption and Maintenance Act, 1956 is an Act available only to Hindus, Jains, Sikhs and Buddhists. Through this Act, an individual or couple can adopt the child legally and the child will be given the right to inherit the property.
HINDU ADOPTION AND MAINTENANCE ACT, 1956
The Hindu Adoption and Maintenance Act. 1956 was passed after Independence. It is a part of codifying and modernizing Hindu Law. This Act tries to remove various gender based discriminations by reflecting the principles of social justice and equality. The law provides necessary conditions for a valid legal adoption.
Under Section 7 of HAMA, these conditions need to be fulfilled by a Hindu male to adopt a child:
- He should be a major
- He should be of sound mind, that is, he should not suffer from idiocy or insanity and he should be able to understand the provisions as laid down in the Act
- He shall not adopt any child if he has a wife living at the time except if he has her consent or she renounces her world or she converts to another religion from Hinduism or she becomes of unsound mind
- If at the time of adoption, he has more than one wife then he needs to consent of all his wives
Under Section 8 of HAMA, these conditions need to be fulfilled by a Hindu female to adopt a child:
- She should be a major
- If she is unmarried she can adopt a child after she has attained the age of eighteen
- She should be of sound mind
- If she is married, she can adopt only if her husband dies or has a disability or he has renounced his world. A married woman cannot adopt otherwise even if she has her husband’s consent
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015
A couple or a single parent can adopt a child who is an orphan, abandoned or surrendered. If a child is adopted under the provisions of HAMA, these conditions will not apply.
The following conditions need to be fulfilled in order to adopt through this Act:
- The prospective adoptive parents (PAP) should be physically, financially and mentally sound.
- Consent of both the spouses must be present
- A single or divorced person can also adopt a child given they fulfill the criteria as laid down by CARA
- A single male cannot adopt a girl child
- A child can be adopted only if the PAP is in a stable marital relationship for at least two years
WHEN CAN A CHILD BE ELIGIBLE TO BE ADOPTED?
For a child to be adopted he/she should fulfill the following conditions:
- Any child who is orphan, abandoned or surrendered can be adopted
- For a child to be adopted, a child needs to be legally free. When an abandoned child is received by the District Child Protection Unit, an alert is put so that his/her parents could be traced. If they are unable to find the child’s parents then he/she is declared legally free and put to adoption
- As per the Hindu law, a child can be given for adoption if the child- is either a girl or a boy given that he/she is a Hindu; he/she has not been adopted before; is below the age of fifteen years; is not married
- As per The Juvenile Justice (Care and Protection of Children) Act, 2015, a child can be given for adoption if the child- is not a Hindu; is a minor (below the age of eighteen); is an orphan, surrendered or abandoned child
There is scope for improvement everywhere. There is still a long way for India to successfully implement these laws and make it gender discrimination free. These Acts need to be more inclusive in matters of different genders and sexuality. Trans-people and LGBTQIA+ community should be included in these Acts. India is growing graciously and becoming more inclusive day by day and there is hope for people who want to be parents but are unable to.
Author: Saumya Shreya,
National Law University and Judicial Academy, Assam (1st Year)