All you need to know about child adoption laws

In India
By Ajay Thakur - March 20, 2017

This article is written by Pragati Singh, from Lucknow University and Neha Mohanty.

“There are no unwanted children, just unfound families.”

Introduction
Adoption has always been a sacred act performed by the humans. As per the Merriam-
Webster legal dictionary legal adoption means “to take voluntarily (a child of other
parents) as one’s own child especially in compliance with formal legal
procedures”.

Adoption can be legal as well as illegal. Under Indian law adoption is legal coalition
between the party willing for adoption and a child, it forms the subject matter of
‘personal law’ where Hindu, Buddhist, Jaina or Sikh by religion can make a legal
adoption. In India there is no separate adoption laws for Muslims, Christians and Parsis,
so they have to approach court under the Guardians and Wards Act, 1890 for legal
adoption.

As we mentioned above that in India only legal adoption is recognised and valid, so
firstly we have to understand that “what is legal adoption”?

According to section 2(aa) of the Juvenile Justice (Care and Protection of Children)
Amendment Act, 2006, “adoption means the process through which the adopted child is
permanently separated from his biological parent and becomes the legitimate child of his
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adoptive parents with all right, privileges and responsibility that are attached to the
relationship”.

Who is allowed to adopt a child in India?

In India, an Indian whether he is married or single, Non-Resident Indian (NRI), or a
person belonging to any nationality (foreigner) may adopt a child. The guidelines and
documentation process for each group of adoptive parents may differ.

Under THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 following category
of people can make adoptions:

“Any male Hindu (including Buddhist, Jain or Sikh by religion) who is of sound mind,
not a minor and is eligible to adopt a son or a daughter”. But if such male has living
spouse at a time of adoption then he can adopt a child only with a consent of his wife
(unless she has been declared incompetent to give her consent by the court).

“Any female Hindu (including Buddhist, Jaina or Sikh by religion) who is not married,
or if married, whose husband is not alive or her marriage has been dissolved or her
husband has been declared incompetent by the court has the capacity to take a son or
daughter in adoption”.

Conditions for adoption by Hindu couples or single

parent
1. In case of adoption of a son by any Hindu male or female, there should not be any
living son in the succeeding three generation of the party (whether by legitimate blood
relationship or by adoption) at the time of adoption.

2. In case of adoption of a daughter by any Hindu male or female, they should not have
any daughter or son’s daughter at the time of adoption.

3. Where there is an adoption of a daughter by a male then the adoptive father should
be at least twenty-one years older than the child.

4. Where there is an adoption of a son by a female then the adoptive mother should be
at least twenty-one years older than the child.

Personal laws of Muslim, Christian, Parsis and Jews do not recognise complete
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adoption so if a person belonging to such religion has a desire to adopt a child can take
the guardianship of a child under section 8 of the Guardians and Wards Act, 1890.

This statute only makes a child a ward, not an adoptive child. According to this statute,
the movement child turns to the age of 21, he is no longer consider as a ward and
treated as individual identity.

In “Mohammed Allahadad Khan v. Muhammad Ismail” it was held that there is

nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System.
Acknowledgement of paternity under Muslim Law is the nearest approach to adoption.

However, an adoption can take place from an orphanage by obtaining permission from
the court under Guardians and Wards Act. Christians can take a child in adoption under
the Guardians and Wards Act, 1890 only under foster care. Once a child under foster
care becomes major, he is free to break away all his connections from his adoptive
parents.

Intercountry adoption: In India, there is no separate act that governs adoption by

foreign citizens or NRIs but it is covered under Guidelines Governing Adoption of
Children, 2015. Under these guidelines misuse or illegal use of the children through
adoption is prevented. As per the Supreme Court Guidelines for intercountry adoption a
foreign parent can adopt an Indian child before he/she completes the age of 3 years. In
the absence of any concrete Act on intercountry adoption, the provisions of Guardians
and Wards Act, 1890 will be followed for adoption.

In case of adoption of abandoned, abused and surrendered children all intercountry

adoptions shall be done only as per the provisions THE JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN) ACT, 2015 and the adoption regulations framed by the
Authority.

Guardians and Wards Act, 1890 remains silent about the adoption of orphans,
abandoned and surrendered children. Chapter VIII of the Juvenile Justice (Care and
Protection of Children) Act, 2015 deals with adoption in such category of the child.
Section 58 of this Act defines that any Indian citizen of India, irrespective of their
religion, if interested to adopt an orphan or abandoned or surrendered child, may apply
for the same to a Specialised Adoption Agency, in the manner as provided in the
adoption regulations framed by the Authority.

Section 57 of this Act deals with eligibility of prospective adoptive parents. As per this
Section, the adoptive parents should be physically fit, financially sound, mentally alert
and highly motivated to adopt a child for providing a good upbringing to him and both
partners must consent for the adoption. A single or divorced person can also adopt in
accordance with the provisions of adoption regulations framed by the Authority but a
single male is not allowed to adopt a girl child.

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Capacity to adopt under Juvenile Justice (Care
and Protection of Children) Act
A couple or a single parent can adopt an orphan, abandoned and surrendered child.
Nothing in this act shall apply to adoptions under HAMA. By virtue of section 37 of the JJ
Act, 2015 and regulation 6 and 7 of AR, 2017 child welfare committee can declare legally
an orphaned, abandoned and surrendered child free from adoption and also allows
children up to the age of 18 for adoption.

The capacity of male and female under the Juvenile Justice Act, 2015 can be grouped
under the umbrella term prospective adoptive parents as mentioned under section 57 of
the JJ act 2015 and regulation 5 of AR, 2017.

The prospective parents should be mentally sound, physically fit sand they should be
fully prepared to adopt the child and also should be ready to provide good upbringing.

In the case of married couples both spouses consent is required.

A single male is not eligible to adopt a girl child.

No child shall be given to any couple until they have atleast two years of stable
a.martial relationships.

The minimum age difference between the adoptive child and the parents should not be
less than twenty five years.

Couples who have three or more children shall not be allowed for adoption except in
special need as mentioned in regulation 2(12) of AR, 2017.

Who can be adopted?

As per the Hindu law following child may be adopted namely-

The child can either be a girl or a boy if he/she is a Hindu.

He/ She has not been adopted before.

The age of the child is below 15 years.

The child should not be married.

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As per the Guardianship law and The Juvenile Justice (Care and protection of children)
ACT, 2015 following child may be adopted namely-

Who is not a Hindu?

Who is minor (not completed the age of 18 years).

An orphan or abandoned or surrendered child.

CARA (Central Adoption Resource Authority)

Cara is a statutory body under the ministry of women and child development,
Government of India. It functions as the central or nodal body of the adoption of Indian
children and monitors the in-country and inter-country adoptions.

Who can adopt

A single woman (unmarried, widow, divorcee) or married couple;

A non-resident Indian;

Foreign citizen.

Who can give a child in adoption?

Both the parents/guardian of child;

One of them if the other has renounced the world or ceased to be Hindu or incase has
become mentally unsound.

If both the parents are dead or not competent in law then in that case the guardian
can give in adoption with the permission of the court.

Criteria/ eligibility of the child to get adopted under

CARA
1. The child must be legally free of adoption.

2. Two unrelated children cannot be proposed to a foreign family at a time.

3. A child can be placed in adoption before it reaches the age of 12.

4. The child consent has to be obtained wherever applicable.