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ADOPTION LAWS IN INDIA: REVIEWS AND RECOMMENDATION NEEDED

*SIYA SHRUTI

Abstract

“Adoption” means the process through which the adopted child is permanently separated

from his biological parents and becomes the legitimate child of his adoptive parents with

all the rights, privileges and responsibilities that are attached to the relationship.”

Through this paper the only aim of the researcher is to collect as much data and

information attached to the concept of adoption in India including adoption in Hindu

Law, Muslim Law and other religions prevalent in India. This paper promises to offer a

comprehensive and exhaustive report on adoption law in India. Through this paper the

researcher would like to draw the attention towards the drawbacks and the discrepancies

that are present in this law. While doing so we will be dealing with the various statutes

like Hindu Adoption and Maintenance Act, 1956, the personal Laws Amendment Act, 2010

& The Guardian and wards Act, 1890. Adoption is a sophisticated and vulnerable concept

which was susceptible to the societal stigma that was attached to it therein.

I. INTRODUCTION

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.

Adoption is the entry or admission of stranger child to a family at the place of child by

birth.

Adoption has always been considered as a wonderful opportunity to provide a child with

home and parents. It offers an excellent alternative to institutional care of destitute,

abandoned and neglected child in an atmosphere of love, affection and understanding

which only a family can provide. Through this project the only aim of the researcher is to

collect as much data and information attached to the concept of adoption in India

including adoption in Hindu Law, Muslim Law and other religions prevalent in India.

In the early days, the practise of adoption was shrouded in the secrecy, which was

restricted in an Indian traditional family. The tradition at that time was that, childless

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couples adopt a child with a view to ensure the continuity of tradition and to avoid

alienation of property. The cases of adopted child being changed as a biological child by

means of various subterfuge was also significant in those days.

Although there is no general law of adoption, yet it is permitted by a statute amongst

Hindus and by custom amongst a few numerically insignificant categories of persons. Since

adoption is legal affiliation of a child, it forms the subject matter of personal law. The

religion specific nature of adoption laws was a very conservative step. It reinforced

practices that were unjust to children and hindered the formation of a Uniform civil code.

Article 44 of the Indian Constitution declares that “The state shall Endeavour to secure for

citizens a Uniform Civil Code throughout the territory of India.

Over the years several attempts were made to formulate a general secular law on adoption.

The attempts of Parliament in this direction did not bear fruit, all these went in vain on

account of a number of reasons. The history of all such efforts does not bring credit to the

secular credentials of the Indian polity.

A. MEANING OF ADOPTION

“Adoption” means the process through which the adopted child is permanently separated

from his biological parents and becomes the legitimate child of his adoptive parents with

all the rights, privileges and responsibilities that are attached to the relationship. Adoption

of orphan, abandoned and surrendered children in India is governed by a set of guidelines

notified by Government of India.

Adoption is the transplantation of a son from the family in which he is born, to

another family where he is given by the natural parents by way of gift. The adopted son is

then taken as being born in the new family and acquires rights, duties and status there

only, and his tie with the old family comes to an end. The concept of adoption is

concerned with Hindus only. Concept of adoption can be traced even from Vedic times.

The ancient texts Dattaka Mimamsa, Dattaka Chandrika, Manu, Yagnavalkya, Gautama,

Baudhayana, and Kautilya etc well refer to this concept.

The adoption is not an institution peculiar to Hinduism, but owes its origin to the

social communism peculiar to the primitive races. In early times, children irrespective of

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their sex were taken in adoption. Manu defines an adopted son as follows – “A son equal

in caste and affectionately disposed, whom his mother or father (or both) give with water

at a time of calamity, is known as the Dattrima (Dattaka) son.

B. ADOPTION UNDER HINDU LAW: ANCIENT PERSPECTIVE

Adoption is the admission of a stranger to the privileges of a child by birth- a legally

recognized form of affiliation. The adopted son is uprooted from his natural family and

transplanted in to adoptive family like a natural son. Adoption is a process to incorporate

a child permanently into a family with all the rights of a natural child, in which he was not

been born. Traditionally, a child was adopted for temporal and spiritual purposes and

more recently, to satisfy the emotional and parental instincts of the adopters.

Manu says, 'by a son, a man attains victory over all people; by a son's son he enjoys

immortality; and thereafter by the son of that grandson he reaches

the solar abode “The Shastric Hindu Law looked at adoption more as a sacramental than

secular act. Hindus believed that one who died without having a son would go to hell

called poota and it was only a son who could save the father from going to Poota. This

was one of the reasons to beget a son.

Ancient Hindu Shastras recognized Dattaka and Kritrima as types of sons. Dattaka son

were further sub divided into two types Datttaka Chandrika and Datttaka. .Datttaka

Chandrika was the adoption not so necessary, adoption which was optional. Datttaka

Shishoma was the adoption that was compulsory for the performance of the funereal rights

and for the continuance of the lineage. In the Hindu Shastras, it was said that the adopted

son should be a reflection of the natural son. This guaranteed protection and care for the

adopted son. He was not merely adoptive parents, but all relations on the paternal and

maternal side in the adoptive family also came into existence. This means he cannot marry

the daughter of his adoptive parents, whether the daughter was natural-born or adopted. In

the modern adoption laws, the main purpose is considered to be to provide consolation

and relief to a childless person, and on the other hand, rescue the helpless, the unwanted,

the destitute or the orphan child by providing it with parents.

Purpose of adoption under Ancient Hindu law

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In the ancient era, things were difficult as there was a societal stigma attached to the

concept and the practise of adoption of a stranger child into one’s own family. It was

regarded as a symbol of impotency to the male member and a lot was to be suffered by the

woman of the family who was blamed for giving birth to only female child not a male

child. Whereas it is so well proven that it is the chromosome of males that is actually a

determinant factor of the sex of the baby to take birth.

The woman has suffered a lot at the hands of their incapacity to give birth to a male child.

Hence conversely we can very well assert the fact that the people of ancient era had a

great affinity towards a male child.

There were two reasons why a male child or rather a son was necessary to be existing in a

family. The reasons are twofold; firstly to secure one’s performance of funereal rights.

The ancient foregoing myth that has existed long way back in our so called pragmatic

society is that if a man’s funereal is not done by his son then he would never get a place in

the heaven and that his soul would never rest at peace and that he would never attain

immortality and for preservation and the continuance of lineage. Lineage refers to the

concept of continuance of one’s own family name. Hence, if a man would die sonless, it is

assumed that his family name would end at his death and hence there is requirement of a

male child in the continuance of family name. So at that juncture of time there was

requirement of a male child in the family and hence the person used to adopt only a male

child. There was no provision for the adoption of a female child.

C. ADOPTION UNDER HINDU LAW: PRESENT STATUS

The present scenario of adoption is far away from the sacramental aspect. The present rule

of adoption is governed by the rules and regulations prescribed by the statutory laws laid

down by the legislators. Currently, the adoption under Hindu Law is governed by The

Hindu Adoption and Maintenance Act, 1956.The Hindu Adoption and Maintenance Act,

1956 extends to only the Hindus, which are defined under Section-2 of the Act and

include any person, who is a Hindu by religion, including a Virashaiva, a Lingayat or a

follower of the Brahmo, Prarthana or Arya Samaj,or a Buddhist, Jaina or Sikh by

religion, to any other person who is not a Muslim, Christian, Parsi or Jew by religion. It

also includes any legitimate or illegitimate child who has been abandoned both by his

father and mother or whose parentage is not known and who in either case is brought up

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as a Hindu, Buddhist, Jaina or Sikh.Adoption is recognized by the Hindus and is not

recognized by Muslims, Christian and Parsi.

The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to

minority and guardianship. As in the case of unmodified law, it has upheld the superior

right of father. It lies down that a child is a minor till the age of 18 years. Natural guardian

for both boys and unmarried girls is first the father and then the mother. Prior right of

mother is recognized only for the custody of children below five. In case of illegitimate

children, the mother has a better claim than the putative father. The act makes no

distinction between the person of the minor and his property and, therefore guardianship

implies control over both. The Act directs that in deciding the question of guardianship,

courts must take the welfare of child as the paramount consideration. Section 6 of the said

Act, provides about the natural guardians of a Hindu minor. Section 7 of the very Act

speaks about the natural guardianship of adopted son

II. A. STATUTES GOVERNING ADOPTION IN RECENT TIMES: HINDU LAW

1) The Hindu adoption and Maintenance act, 1956

Adoption in the Hindus is covered by The Hindu Adoptions Act and after the coming of

this Act all adoptions can be made in accordance with this Act. It came into effect from

21st December, 1956. Prior to this Act only a male could be adopted, but the Act makes a

provision that a female may also be adopted. This Act extends to the whole of India except

the state of Jammu and Kashmir. It applies to Hindus, Buddhists, Janis and Sikhs and to

any other person who is not a Muslim, Christian, Parsi by religion.

The Hindu Adoptions and Maintenance Act (HAMA), 1956, provides for adoption of

Hindu children by the adoptive parents belonging to Hinduism. This is not applicable to

other communities like Muslims, Christians and Parsi. They have to recourse to Guardians

and Wards Act, 1890, wherein they become guardians of children. But the child does not

have the status as it would have had, had it been born to its adoptive parents. One of

features of this Act is that no Hindu person can adopt a son or daughter, if they already

have a child of that sex. Often the intentions behind the law are good, but the methods

adopted fall short. The HAMA provides that there should be an age difference of 21 years

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between the adoptive parents and the adopted child whenever they are of opposite sex. This

is intended to prevent sexual abuse.

Requirements for a valid adoption

Section 6 enumerates the requisites of a valid adoption. It lays down that no adoption

shall be valid unless the person adopting has the capacity as also the right to take in

adoption; the person giving in adoption has the capacity to do so; the person adopted is

capable of being taken in adoption, and the adoption is made in compliance with the other

conditions mentioned in Chapter II. In the Hindu law the requirements for a valid

adoption. The Act reads,

I. The person adopting is lawfully capable of taking in adoption

II. The person giving in adoption is lawfully capable of giving in adoption

III. The person adopted is lawfully capable of being taken in adoption

The adoption is completed by an actual giving and taking and the ceremony called datta

homan (oblation to the fire) has been performed. However this may not be essential in all

cases as to the validity of adoption?

Who May Adopt

Capacity of male (Section 7)

Section 7 of the Hindu Adoptions and Maintenance Act, prescribes the general capacity of

a Hindu male to take a son or a daughter in adoption if he is of sound mind and not minor.

Similarly, section 8 of the Act empowers a female Hindu to take a son or daughter in

adoption subject to the fulfillment of conditions prescribed in the Act. Section 10 speaks

about the persons who may be adopted. This section provides that a child male or female

is capable of being taken in adoption if he or she is a Hindu and not already been

adoptedAny male Hindu, who is of sound mind and is not a minor, has the capacity to

take a son or daughter in adoption. Provided that if he has a wife living, he shall not adopt

except with the consent of his wife, unless his wife has completely and finally renounced

the world or has ceased to be a Hindu, or has been declared by a court of competent

jurisdiction to be of unsound mind.

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If a person has more than one wife living at the time of adoption the consent of all the

wives is necessary unless the consent of one of them is unnecessary for any of the reasons

specified in the preceding provision. The 1956 Act now provides for adoption of boys as

well as girls. By virtue of the proviso to Section 7, the consent of wife has been made a

condition precedent for adoption by a male Hindu. The mandatory requirement of the

wife's consent enables her to participate in the decision making process which vitally

affects the family. If the wife finds that the choice of the person to be adopted by the

husband is not appropriate or is not in the interest of the family then she can veto his

discretion.

Capacity of female (Section 8)

Any female Hindu

Ø who is of sound mind

Ø who is not a minor, and

Ø Who is not married, or if married, whose marriage has been dissolved or whose husband

is dead or has completely and finally renounced the world or has ceased to be a Hindu, or

has been declared by a court of competent jurisdiction to be of unsound mind, has the

capacity to take a son or daughter in adoption. Where the woman is married it is the

husband who has the right to take in adoption with the consent of the wife. A female

Hindu who is of a sound mind and has completed the age of eighteen years can also take a

son or daughter in adoption to herself and in her own right. After the Personal laws

(Amendment) Act 2010, a female’s right to adopt has been brought at par with the male’s

rights.

Who may give a child in Adoption

No person except the father or mother or guardian of the child shall have the

capacity to give the child in adoption. The father alone if he is alive shall have the right to

give in adoption, but such right shall not be exercised except with the consent of the

mother unless the mother has completely and finally renounced the world or has ceased to

be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound

mind. The mother may give the child in adoption if the father is dead or has completely

and finally renounced the world or has ceased to be a Hindu, or has been declared by a

court of competent jurisdiction to be of unsound mind. Where both the father and mother

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are dead or have completely and finally renounced the world or have abandoned the child

or have been declared by a court of competent jurisdiction to be of unsound mind or

where the parentage of the child is unknown - the guardian of the child may give the child

in adoption with the previous permission of the court. The court while granting

permission shall be satisfied that the adoption is for the welfare of the child and due

consideration will be given to the wishes of the child having regard for the age and

understanding of the child. The court shall be satisfied that no payment or reward in

consideration of the adoption except as the court may sanction has been given or

taken.

WHO MAY ADOPTED

No person can be adopted unless:

Ø he or she is a Hindu;

Ø he or she has not already been adopted;

Ø he or she has not been married, unless there is a custom or usage applicable to the parties

which permits persons who are married being taken in adoption;

Ø he or she has not completed the age of fifteen years unless there is a custom or usage

applicable to the parties which permits persons who have completed the age of fifteen

years being taken in adoption

Thus, these are the rules and regulation prescribed for determining as to what is the

capacity to adopt, to give in adoption and to be adopted.

Other conditions for a valid adoption (Section 11)

The other requirement for the adoption to be rendered as valid are that while adopting a

child one must take into consonance and consideration the following points.

Ø if the adoption is of a son, the adoptive father or mother by whom the adoption is made

must not have a Hindu son, son's son or son's son's son living at the time of adoption

Ø if the adoption is of a daughter, the adoptive father or mother by whom the adoption is

made must not have a Hindu daughter or son's daughter living at the time of adoption;

Ø if the adoption is by a male and the person to be adopted is a male, the adoptive father is

at least twenty one years older than the person to be adopted;

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Ø if the adoption is by a female and the person to be adopted is a male, the adoptive mother

s at least twenty one years older than the person to be adopted;

Ø The same child may not be adopted simultaneously by two or more parents; the child to be

adopted must be actually given and taken in adoption with an intent to transfer the child

from the family of birth.

In case there is absence of compliance of any one of these rules prescribed by the stature

The Hindu adoption and maintenance Act,1956, the adoption would not be considered as

valid adoption.

EFFECTS OF ADOPTION

Section 12 declares that from the date of the adoption, an adopted child is deemed to be a

child of his/her adoptive father or mother for all purposes and his ties in the family of his

or her birth shall stand severed and replaced by those created in the adoptive family. In

Kartar Singh V. Gurdial Singh1 where the respondent who was adopted by his maternal

grandfather claimed property rights in the family of his birth, the court said that upon

adoption no rights remain in the family of birth.

Proviso (a) to this section contains a restriction on the marriage of adopted child with a

person to whom he or she could not have married if he or she had continued in the family

of his or her birth.

Clause (b) of the proviso saves the vested right of the adopted child in the property subject

to the obligations, if any, attached to the ownership of such property, including the

obligation to maintain relatives in the family of his or her birth.

Likewise, clause (c) to the proviso lies down that the adopted child shall not divest any

person of any estate vested in him or her before the date of adoption. Section16 which

embodies a rule of presumption lays down that whenever any document registered under

any law for the time being in force evidencing adoption and signed by the person giving

and person taking the child in adoption is produced before any court, then it shall presume

that the adoption has been made after complying with the provisions of the Act unless

proved otherwise.

1 (2008) 1 HLR 657 (P&H)

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“Welfare of minor is of paramount consideration”

According to Section 13, the adoptive child gets property rights in his new family, but an

adoption does not deprive the adoptive father or mother of the power to dispose of his or

her property by transfer inter vivos or by will, unless there is an agreement imposing such

restriction

Adoption once made is final and irrevocable. An adoption validly made cannot be

cancelled by the adopter, natural parents or any other person. Nor can an adopted child

renounce his adoptive parents and return to the family of his or her birth. This means that

if a person makes an adoption, under no circumstances he or she gets rid of the child. An

adopted child cannot again be given in adoption. Once an adoption has been duly made in

accordance with law, it cannot be cancelled nor can the adopted child, the adoptive

parents and the natural parents destroy the right of the adopted.

2) THE PERSONAL LAWS AMENDMENT, ACT, 2010

After the enactment of The Hindu adoption and maintenance Act, 1956, the various

sections of these statutory provisions underwent several amendments. The statute was put

into scrutiny and thence proposals for amendment were made. These proposals were then

incorporated through the personal laws amendment, Act, 2010.Thus, here in this part of

this project we are going to discuss the amendments that have been already incorporated

about this statute.

Amendment of section 8

In the Hindu Adoptions and Maintenance Act, 1956 (hereafter in this Chapter referred to

as the Hindu Adoptions and Maintenance Act), for section 8, the following section shall

be substituted, namely:—

"8. Capacity of a female Hindu to take in adoption - Any female Hindu who is of sound

mind and is not a minor has the capacity to take a son or daughter in adoption: Provided

that, if she has a husband living, she shall not adopt a son or daughter except with the

consent of her husband unless the husband has completely and finally renounced the

world or has ceased to be a Hindu or has been declared by a court of competent

jurisdiction to be of unsound mind.".

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Amendment of section 9 –

In the Hindu Adoptions and Maintenance Act, in section 9, —

(i) For sub-section (2), the following sub-section shall be substituted, namely: —

"(2) Subject to the provisions of sub-section (4), the father or the mother, if alive, shall

have equal right to give a son or daughter in adoption: Provided that such right shall not

be exercised by either of them save with the consent of the other unless one of them has

completely and finally renounced the world or has ceased to be a Hindu or has been

declared by a court of competent jurisdiction to be of unsound mind."; (ii) sub-section (3)

shall be omitted.

3) HINDU MAINTENANCE & GUARDIANSHIP ACT, 1956

The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to

minority and guardianship. As in the case of unmodified law, it has upheld the superior

right of father. It lays down that a child is a minor till the age of 18 years. Natural guardian

for both boys and unmarried girls is first the father and then the mother. Prior right of

mother is recognized only for the custody of children below five.

In case of illegitimate children, the mother has a better claim than the putative father. The

act makes no distinction between the person of the minor and his property and, therefore

guardianship implies control over both. The Act directs that in deciding the question of

guardianship, courts must take the welfare of child as the paramount consideration. Section

6 of the said Act, provides about the natural guardians of a Hindu minor. Section 7 of the

very Act speaks about the natural guardianship of adopted son.

II. B. STATUTES GOVERNING OTHER RELIGIONS

1) THE GUARDIAN AND WARD ACT (GWA), 1890

Personal laws of Muslims, Christians, Parsi and Jews do not recognize complete adoption.

As non-Hindus do not have an enabling law to adopt a child legally, the people belonging

to these religions who are desirous of adopting a child can only take the child in

'guardianship' under the provisions of The Guardians and Wards Act, 1890. The statute

does not deal with adoption as such but mainly with guardianship. The process makes the

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child a ward, not an adopted child. Under this law, when children turn 21 years of age,

they no longer remain wards and assume individual identities. They do not have an

automatic right of inheritance. Adoptive parents have to leave whatever they wish to

bequeath to their children through a will, which can be contested by any `blood' relative.

The aforesaid enactments remain silent about the orphan, abandoned and surrendered

children. There was no codified legislation dealing with the adoption of the children of

these categories. As a result, several misconceptions or irregularities appeared in respect

of the custody, guardianship or adoption of these types of children, which were prejudicial

to the interest of the children.

Personal law of Muslims, Christians, Parsi and Jews does not recognise complete

adoption. As non-Hindus do not have an enabling law to adopt a child legally, those

desirous of adopting a child can only take the child in 'guardianship' under the provisions

of The Guardian and Wards Act, 1890.

This however does not provide to the child the same status as a child born biologically to

the family. Unlike a child adopted under the Hindu Adoption and Maintenance Act, 1956

the child cannot become their own, take their name or inherit their properly by right. This

Act confers only a guardian-ward relationship. This legal guardian-ward relationship

exists until the child completes 21 years of age. Foreigners, who seek to adopt an Indian

Child, do so under this Act to assume legal Guardianship of the child, after giving an

assurance to the court, that they would legally adopt the child as per the laws of their

country, within two years after the arrival of the child in their country.

ADOPTION UNDER MUSLIM LAW

Adoption is the transplantation of a son from the family in which he is born, into another

family by gift made by his natural parents to his adopting parents. Islam does not recognise

adoption. The Adoption of Children Bill, 1972 was not approved as the Muslims opposed

it. The Adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption

applicable to all communities other than the Muslim community, was opposed by the

Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt

Parsis from the bill. The National Adoption Bill, tabled twice in Parliament in the seventies,

has yet to enter the statute books. The history of attempt to bring in the concept of secular

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adoption into our system of laws narrates a sad tale of inaction and action without

conviction on the part of the legislature.

In Mohammed Allahabad Khan v. Mohammad 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.

The material difference between the two can be stated that in adoption, the adoptee is the

known son of another person, while one of the essentials of acknowledgement is that

acknowledge must not be known son of another. However an adoption can take place

from an orphanage by obtaining permission from the court under Guardians and Wards

Act.

The guardian/child relationship has specific rules under Islamic law, which renders

the relationship a bit different than what is common adoption practice today. The Islamic

term for what is commonly called adoption is kafala, which comes from a word that

means "to feed." In essence, it describes more of a foster-parent relationship.

ADOPTION UNDER PARSI LAWS:

The personal laws of these communities also do not recognize adoption and here too an

adoption can take place from an orphanage by obtaining permission from the court under

Guardians and wards act. However, there is a customary form of adoption prevalent

among the parsis known as “palak”.

ADOPTION UNDER CHRISTIAN LAWS:

A Christian has no adoption law. Since adoption is legal affiliation of a child, it forms the

subject matter of personal law. Christians have no adoption laws and have to approach

court under the Guardians and Wards Act, 1890. National Commission on Women has

stressed on the need for a uniform adoption law. Christians can take a child under the said

Act only under foster care. Once a child under foster care becomes major, he is free to

break away all his connections. Besides, such a child does not have legal right of

inheritance.

The general law relating to guardians and wards is contained in the Guardians and Wards

Act, 1890. It clearly lays down that father's right is primary and no other person can be

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appointed unless the father is found unfit. This Act also provides that the court must take

into consideration the welfare of the child while appointing a guardian under the Act.

2) THE JUVENILE JUSTICE ACT, 2000

Adoption can be a most beautiful solution not only for childless couples and single people

but also for homeless children. It enables a parent-child relationship to be established

between persons not biologically related. It is defined as a process by which people take a

child not born to them and raises it as a member of their family.

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.

Article 44 of the Constitution declares that “The State shall endeavor to secure for the

citizens a Uniform Civil Code throughout the territory of India.”

Over the years several attempts were made to formulate a general secular law on adoption.

The attempts of Parliament in this direction did not bear fruit, all these went in vain on

account of a number of reasons. The history of all such efforts does not bring credit to the

secular credentials of the Indian polity.

The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it. The

Adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption

applicable to all communities other than the Muslim community, was opposed by the

Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt

Parsis from the bill. The National Adoption Bill, tabled twice in Parliament in the seventies,

has yet to enter the statute books. The history of attempt to bring in the concept of secular

adoption into our system of laws narrates a sad tale of inaction and action without

conviction on the part of the legislature.

The existing legislations for adoption or taking a child in custody in India are following:

The Hindu Adoptions and Maintenance Act (HAMA), 1956. This Act provides for adoption

of Hindu children by the adoptive parents belonging to Hinduism. This is not applicable to

other communities like Muslims, Christians and Parsis. They have to recourse to Guardians

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and Wards Act, 1890, wherein they become guardians of children. But the child does not

have the status as it would have had, had it been born to its adoptive parents. One of

features of this Act is that no Hindu person can adopt a son or daughter, if they already

have a child of that sex. Often the intentions behind the law are good, but the methods

adopted fall short. The HAMA provides that there should be an age difference of 21 years

between the adoptive parents and the adopted child whenever they are of opposite sex. This

is intended to prevent sexual abuse.

3) THE GUARDIANS AND WARDS ACT, 1956

Personal laws of Muslims, Christians, Parsis and Jews do not recognize complete adoption.

As non-Hindus do not have an enabling law to adopt a child legally, the people belonging

to these religions who are desirous of adopting a child can only take the child in

'guardianship' under the provisions of The Guardians and Wards Act, 1890. The statute

does not deal with adoption as such but mainly with guardianship. The process makes the

child a ward, not an adopted child. Under this law, when children turn 21 years of age, they

no longer remain wards and assume individual identities. They do not have an automatic

right of inheritance. Adoptive parents have to leave whatever they wish to bequeath to their

children through a will, which can be contested by any `blood' relative.

The aforesaid enactments remain silent about the orphan, abandoned and surrendered

children. There was no codified legislation dealing with the adoption of the children of

these categories. As a result, several misconceptions or irregularities appeared in respect of

the custody, guardianship or adoption of these types of children, which were prejudicial to

the interest of the children.

Considering all the aspects mentioned above laudable attempt were undertaken by the

legislature by the stipulations, which have been made in Chapter IV of the Juvenile Justice

(Care and Protection of Children) Act, 2000. This enactment shows that the legislature may

be found to have accepted the concept of secular adoption whereby without any reference

to the community or religious persuasions of the parents or the child concerned, a right

appears to have been granted to all citizens to adopt and all children to be adopted.

It is pertinent to mention here that there arises confusion as to the interpretation as well as

concept of adoption as because the expression “Adoption” has not been defined at all in the

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enactments like HAMA or GAWA. Moreover, the legal status of the adopted child has not

declared to be equal to that of a biological legitimate child. Though at the initial stage the

Juvenile Justice (Care and Protection of Children) Act, 2000 did not contain these factors,

these are introduced in Juvenile Justice (Care and Protection of Children) Amendment Act,

2006. The concept of adoption has been well defined in Sec.2 (a) of the said Act, which is

as follows:

Adoption means the process through which the adopted child is permanently separated

from his biological parents and becomes the legitimate child of his adoptive parents with all

rights, privileges and responsibilities that are attached to the relationship.

The Act introduced an expression “child in need of care and protection” and it has been

defined in Sec. 2 (d) of the Act. This definition covers what is meant by orphan, abandoned

and surrendered children.

II. C. OTHER STATUTES /AGENCIES / COMMITTEES FOR ADOPTION

All existing child care institutions housing orphan, abandoned and surrendered children are

required to register with the State Government and apply for recognition as Special

Adoption Agency(SAA) as per provisions of the JJ Act. After being recognized as SAA,

such agencies should register under CARINGS to be part of CARA network. Presently

there are 72 RIPA's which undertake both In-Coutry as well as Inter-Country Adoptions

and 254 LAPA's which undertake only In-Country Adoption.

1) Central Adoption Resource Agency (CARA)

CARA is an autonomous body and also ratified Hague Convention of 1993 and the United

Nation Declaration of the Rights of the Child adopted by the General Assembly of the

United Nations in 1989 on inter country adoption. Later Juvenile Justice (Care and

Protection of Children) Act, 2000 was passed for children in need of care and protection.

In-country Adoption of Indian children is governed by In-country Guidelines-2004 while

Inter-country Adoption procedure is governed by a set of Guidelines last issued on 14th

February’2006. These Guidelines are a follow up of various directions given by the

Supreme Court of India in L.K. Pandey v. Union of India4 and other cases. In this case our

Apex court held that since there is no statutory enactment in our country providing for

17 | P a g e

adoption of a child by foreign parents or laying down the procedure which must be

followed in such a case, resort is had to the provisions of the Guardians and Wards Act,

1890 for the purpose of facilitating such adoption. These Guidelines are amended and

updated from time to time keeping in mind the welfare of such child. While CARA is

engaged in clearing inter-country adoption of Indian children, its principal aim is to

promote in-country adoption. In fact, CARA ensures that no Indian child is given for inter-

country adoption without him/her having been considered by Indian families residing in

India. CARA also provides financial assistance to various NGOs and Government run

Homes to promote quality child care to such children and place them in domestic adoption.

2) Child Welfare Committee

Sec. 29 of the Juvenile Justice Act, 2000 provides for the Child Welfare Committee. The

Committee has the sole authority to declare the child in need of care and protection who are

orphan, abandoned or surrendered free for adoption.

CWC shall determine legal status of all orphans, abandoned and surrendered children.

Functions and powers of the Committee, procedure in relation to the Committee,

production of child before committee, procedure for inquiry, procedure related to orphan

and abandoned children and procedure related to surrendered children shall be governed as

laid down in the Juvenile Justice Amendment Act 2006 and its Rules. On clearance from

CWC that a particular child is free for adoption, there will be termination of parental

II. D. SECULAR LAWS FOR ADOPTION

In India, there is no secular law of adoption covering all the people. Although the India

government had attempted several times since independence to pass a uniform and secular

bill for the whole country, but the Muslims and a section of the Parsis have had strong

objections to the various bills introduced in Parliament. As result, Muslims, Christians and

Parsis have no adoption laws of their own and they have no adoption rights but only a

guardianship rights under the Guardians and Wards Act 1890 where the adopted child does

not get the inheritance and other rights.

Article 44 of the Constitution declares that the State shall Endeavour to secure for the

citizens a Uniform Civil Code throughout the territory of India. The Law Commission, in

its 153rd report, recommended that a uniform law be enacted to regulate adoptions, but

18 | P a g e

nothing seems to have happened in this regard. Over the years several attempts were made

to formulate a general secular law on adoption. The attempts of Parliament in this direction

did not bear fruit, all these went in vain on account of a number of reasons. Being a

signatory to United Nations Convention on Rights of the Child (UNCRC) and The Hague

Convention on Inter-country Adoption, India is obliged to enact appropriate legislation on

adoption, applicable to all societies and communities alike. So a Uniform Adoption Law in

India should be introduced, that definitely has to be appreciated.

III .INTER-COUNTRY ADOPTION

The concept of Inter-Country adoption is relatively a new concept. It did not find place in

the top priorities of the legislators. There was not and still is not a legislation exist which

primarily provides for the rules regarding Inter-Country adoption.

There’s more than one way to build a family and adopting a child into your home and your

hearts is one of the most wonderful blessing. The family is the primary setting for children’s

development, and the importance of the early years of development for a person’s adult life is

increasingly recognized. By virtue of ratification of the Convention on Rights of the child,

Govt. of India has recognized the child’s right to a family especially within its own family

members and familial-cultural milieu. With Hague Convention on Inter-country Adoption

coming into force in India w.e.f. 1.10.2003, it has been obligatory for Central Adoption

Resource Agency to come out with Guidelines on Family Adoptions so that children in crisis

family situations are not deprived of a caring family. This guideline will be applicable for

PIOs and NRIs who are habitually residing abroad have intention to adopt their relative’s

child from India.

Since family adoption has to deal with families of both sides, it is mandatory for both the

sides to understand the procedural requirements before initiating such proposal. The purpose

is to enable a child to get a loving and caring family within his/her clan group when such

placement is considered as best alternative in the given situation. Family adoption will be

allowed in exceptional situations where the child to be adopted has a special situation as a

result of parent/s death or adoption is thought up for certain situation benefiting families of

both side without compromising child’s best interest.

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Procedure followed for inter country adoption are:

Child is made legally free for adoption either a) by relinquishment deed from

biological parents. b) No legal claim certificate from child welfare committee formed by

state after making legal enquiry. A Pre- adoption counselling for adoptive parents is done.

Then an application is filed at registrar office and registration is done. Along with this a

home study report is made in order to identify the child emotional and material needs. Then

arrangement is made to see the child by adoptive parents. And finally the child is taken for

medical check up.

A landmark case of Laxmikant Pandey vs. Union of India2 laid down few principles

governing the rules for Inter-Country adoption. The case was instituted on the basis of a

letter addressed to the court by a lawyer, Laxmikant Pandey alleging that social

organisations and voluntary agencies engaging in the work of offering Indian children to

foreign parents are indulged in malpractices. It was alleged that these adopted children were

not only exposed to long horrendous journey to distant foreign countries at the risk of their

life but they also ultimately become prostitutes and beggars. Supreme Court in this case

expressed its opinion and framed certain rules for Inter-Country adoption.

The Hon'ble Court asserted that, "while supporting Inter-Country adoption, it is necessary

to bear in mind that the primary object of giving the child in adoption being the welfare of

the people, great care has to be exercised in permitting the child to be given in adoption to

foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the

foreign country or the adoptive parents may not be able provide to the child a life of moral

and material security or the child may be subjected to moral and sexual abuse or forced

labour or experimentation for medical or other research and may be placed in worse

situation than that in his own country ."

It further went on to give the prerequisites for foreign adoption. It stated that “In the first

place, every application from a foreigner desiring to adopt a child must be sponsored by

social or child welfare agency recognised or licensed by the government of the country in

which the foreigner is a resident. No application by a foreigner for taking a child in

adoption should be entertained directly by any social welfare agency in India working in

2 Supra 2

20 | P a g e

the area of Inter-Country adoption or by any institution or centre or home to which children

are committed by the juvenile court."

The Supreme Court also insisted the age within which a child should be adopted in case of

Inter-Country adoption. “If a child is to be given in Inter-Country adoption, it would be

desirable that it is given in such adoption before it completes the age of 3 years."

Such a ruling was delivered by the Supreme Court because it felt if a child is adopted by a

foreign parent before he/she attains the age of 3, he/she has more chances of assimilating to

the new environment and culture. Another important rule framed by the Court during the

course of judgement was- Since there is no statutory enactment in our country providing for

adoption of a child by foreign parents or laying down the procedures which must be

followed in such a case, resort had to be taken to the provisions of Guardian and Wards

Act, 1890 for the purpose of felicitating such adoption.

Following this judgement, the Indian courts gradually broadened the scope of adopting

child to other countries.

V. REHABILITATION & SOCIAL REINTEGRATION FOR ORPHAN ABANDONED OR

SURRENDERED CHILDREN:

The chapter IV of the Act deals with rehabilitation and social re-integration of children.

The primary aim of rehabilitation and social reintegration is to help children in restoring

their dignity and self-worth and mainstream them through rehabilitation within the family

where possible, or otherwise, through alternative care programmers and long term

institutional care shall be of last resort.

Sec. 40 of the J.J. Act provides that the rehabilitation and social reintegration of a child

shall begin during the stay of the child in children’s home or special home, but as the

family is the best option to provide care and protection for children, adoption is the first

alternative for rehabilitation and social reintegration of orphan, abandoned or surrendered

children. Legislation/Guidelines/directives for adoption of orphan, abandoned or

surrendered children:

The following legislation, guidelines or directives are to be complied with in respect of

adoption of orphan, abandoned or surrendered children:

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Ø Guidelines issued by Central Adoption Resource Authority time to time based on

the judgment of the Supreme Court on inter-country adoption in Laxmi Kant

Pandey v. Union of India3 & others [W.P. (Crl.) No. 1171/1982] and subsequent

judgments.

Ø Hague Convention on Inter-country adoption ratified by India in 2003.

Ø Juvenile Justice (Care & Protection of Children) Act, 2000 and Central Model

Rules promulgated under this Act.

The primary aim of adoption is to provide a child who can’t be cared for by his biological

parents with a permanent substitute family. The family of a child has the primary

responsibility to provide him care and protection. Orphan, abandoned or surrendered

children can be adopted for their rehabilitation through such mechanism as may be

prescribed. Such children may be given in adoption by a Court in keeping with the

provisions of several guidelines regarding adoption issued by the State Govt. /Central

Adoption Resource Authority and notified by the Central Govt. But the Court should be

satisfied with the investigation having carried out which are required for giving such

children in adoption.

For placement of the orphan, abandoned or surrendered children for adoption in

accordance with the said guidelines, the State Govt. shall recognize in each district one or

more institutions or voluntary organizations as specialized adoption agencies. The

Children’s Homes and institutions run by the State Govt. or voluntary organizations for

children in need of care and protection who are orphan, abandoned or surrendered, should

ensure that these children are declared free for adoption by the Committee (Child Welfare

Committee) and such cases shall be referred to the adoption agency of that district for

their placement in adoption.

According to Rule 33 (5) of the Central Rules under the said Act, the “Court” implies a

civil court, which has jurisdiction in matters of adoption and guardianship and may include

the court of District Judge, Family Court and City Civil Court.

3 AIR1984 SC469

22 | P a g e

But the provision of the said Rules empowering the Family court has been subjected to

several criticisms by judiciary. In the case of Manuel Theodore D’Souza4 the Bombay

High Court also observed that the right to adopt being a fundamental right must be capable

of enforcement through the civil court as it falls within the ambit of Sec. 9 of Civil

Procedure Code. It was also opined that the District Court or the High Court has the

jurisdiction to deal with the question relating to adoption as this court normally deal with

the disputes regarding custody, guardianship etc. of children. It was also held that such

applications can be filed before the District Courts exercising powers under the Guardians

& Wards Act and such applications for adoption of the child by a guardian must be

reckoned as a miscellaneous application in the petition in guardianship.

Similar conclusion has been drawn by the Hon’ble High Court of Kerala in the recent case

of Andrew Mendez & others v. State of Kerala. It minutely interpreted the expression

“Court” in J.J. Act as well as the jurisdiction of the Family Court as mentioned in the

Central Rules under J.J. Act and the Family Courts Act. As per Sec.7 (1) (g) of the Family

Courts Act, the Family Court has the powers/jurisdiction to deal with the question of

guardianship. So the question arises whether claim for adoption can be brought under any

sub-clauses (a) to (g) of Sec.7 (1) of the Family Courts Act so that the Family court must be

the court for the purpose of Sec.41 (6).

Similar type of question arose in the case of Vinod Krishnaan v. Missionaries of Charity5

where the Division Bench of Kerala High Court held that the Family Court can’t be clothed

by the stipulations in Sec. 7(1) to deal with a claim for adoption U/s 9(4) of Hindu

Adoption & Maintenance Act. It is only the District court having the jurisdiction to

entertain such application. Following this observation the Kerala High Court in Andrew

Mendez’s case opined that Sec 7(1) (g) is not sufficient to clothe the Family Court with the

jurisdiction to consider an application for adoption by reckoning the same as incidental to

guardianship and custody. Another important point was raised in this case, i.e., Sec. 7(2)

(b) of Family Courts Act declare that the Family court shall also have and exercise such

other jurisdiction as may be conferred on it by any other enactment. Though J.J. Act is an

enactment, it doesn’t certainly states that Family Court shall be the court for the purpose of

Sec. 41(6). On the contrary, the Central Rules promulgated under section 68 of the J.J. Act

4 II (200) DMC 292] 5 [1997 (2) KLT 863]

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confers such jurisdiction on Family Court, but it does not fall within the ambit of

“enactment” as explained by the High Court in the aforesaid case. Consequently it was

concluded by the Kerala High Court that the Family Court does not have jurisdiction to

entertain an application for adoption by a guardian under section 41 (6) of J.J. Act and it

can’t be held to be the court under section 41(6). It is only the District Court, which can

have jurisdiction to entertain such application under section 41(6) of Juvenile Justice Act,

2000 read with Rule 33(5) of the Central Rules.

The enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its

subsequent amendment in 2006 is definitely a significant effort of the legislature towards

recognition of adoption of orphan, abandoned and surrendered children by people

irrespective of their religious status.

It can’t be denied that it is a secular legislation only under which any person can adopt a

child of orphan, abandoned and surrendered child irrespective of his/her religion. It is more

children oriented unlike other legislations. But it may be mentioned at the same time that

some more factors need to be considered specifically by the legislature. As for example,

this Act stipulates adoption by any person irrespective of his/her marital status, but it does

not specify whether the consent of the other spouse is required to be obtained by the

adopting spouse in case adoption by a married couple.

This might create misconceptions among the Hindus as in Hindu Laws (HAMA) taking

consent of the wife by her husband is an essential criteria for adoption. Secondly, the

expression “Court” has not been specifically defined for the purpose of adoption under this

Act as a result of unwarranted mistakes/misconception arises frequently in filing the

application for adoption by the adoptive parents. Thirdly, the Act is silent about the criteria

for age difference between the adoptee and adoptive parents in case they are of opposite

sex. This is an essential factor for adoption, which should be considered seriously for the

purpose of preventing child abuse and trafficking. All these facts are obviously applicable

to all religions and therefore, it is necessary to specify them for the interest of the children.

We should never forget the thrust of the National Policy for the Welfare of Children (1974)

that “The Nation's children are a supremely important asset. Their nurture and solicitude

are our responsibility”.

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VI. CHILD ADOPTION POLICIES IN INDIA

The Government of India is fully sensitized and committed to the rights and welfare of

children. The Constitution of India under Article 24- Chapter on “Fundamental Rights of

the Citizens” provides the right against exploitation of the children below 14 years. Article

45 of the Directive Principles of the State Policy in the Indian Constitution envisages for

free and compulsory education of children.

BASIC INDIAN POLICY

At the International level, India has ratified the convention on the Rights of Child and

the Hague Convention on inter- country adoption of children. At national level, India has

prepared a National Policy for children in 1974 under which Ministry of Social Justice

and Empowerment (now known as Ministry of Women and Child Development) has got

the mandate to enact laws regarding welfare of children. The Juvenile Justice (Care and

Protection of Children) Act 2000 is a landmark in this regard. This Act has incorporated

the provision of adoption of child as an alternative to institutional care.

Adoption provides a very important function in Indian society. India has long

tradition of child adoption. In olden days, it was restricted within the family and was

covered by social and religious practices. But with the changing times, adoption beyond

the contour of family has been institutionalized and legalized.

What Government of India and State Governments is providing necessary support and

guidance through its policies and programmes, the Non- Governmental Organizations

(NGO’s) provide necessary delivery system for the process of adoption which is above

board and transparent.

Implementation of Policy -- Central Agency

To strengthen adoption rules and facilitate adoption without any hassles, Government of

India under advice of Supreme Court constituted a Central Agency- Central Adoption

Resource Agency [CARA] with New Delhi as base to set up guidelines for adoption time

to time safeguarding welfare and rights of children while granting adoption or

guardianship under Hindu Adoption and Maintenance Act 1956, Guardians and Wards

Act 1890 or Juvenile Justice Act of 2000.

Scrutiny Agency

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To safeguard malpractices and deviations from prescribed guidelines for adoption notified

by Government of India, Supreme Court of India has appointed an independent NGO with

experience in child adoption – “The Indian Council of Social Welfare” with head quarters

in Mumbai and branches in all state as Scrutiny Agency. This agency verifies all the

relevant documents and authenticity before orders are issued by Judicial Courts for the

formal adoption.

Guidelines for adoption

CARA has issued separate policy guidelines for inter- country and in- country adoptions.

The main policy adopted is placement agencies involved in adoption should strictly

follow and comply with the guidelines of CARA and register with respective state

governments. No Objection Certificate [NOC] from CARA is made mandatory in case of

all inter- country adoption, before placement agency process the application in

competent Judicial Courts.

To conclude the trust of national policy of India for welfare of children is to protect

abandoned and destitute children, goal is to find a family for as many orphan children as

possible and to safeguard their interest as visualized in the UN Convention on child

rights and Hague Convention on Inter country adoption ratified by India government.

The ‘Best Interest of the Child’ is the guiding principle behind all adoption laws in India

and social awareness programmes has helped to change the attitude of society and

people towards adoption in India.

The nation’s children are supreme important asset. Their nurture and solitude are

responsibilities of nation. Children’s programmes should find a prominent part in

national plans for the development of human resources so that children grow up to

become robust citizens; physically fit, mentally alert and morally healthy endowed with

the skills and motivation needed by the society. Equal opportunities for development to

all children during the period of growth are the aim, as this will serve larger purposes of

reducing inequality and increasing social justice.

VII. ADOPTION LAWS IN INDIA: NEED FOR A CHANGE

In the early days, the practice of adoption was shrouded in secrecy, which was restricted in

the traditional family. The tradition at that time was that, childless couples adopt a child

with a view to ensure the continuity of tradition and to avoid alienation of property.

26 | P a g e

Professional intervention of child welfare agencies in the process of adoption that began in

the early seventies had changed the societal attitude and concept of adoption. Thereby

significant changes in the legal, social and practice levels of adoption programme with

systematization of the procedures to the best interest of the child, adoptive parents and the

birth parents had taken place. This has enhanced the rate of adoption and today, child

emerged as the fulcrum of the family and more and more couples are coming forward to

adopt a child as soon as it is known that it is not possible for them to have a biological

child.

Adoption in India has a flavour of antiquity. In India the change has just begun. Some

modifications in adoption laws through Juvenile Justice Act are a welcome step, the fact

however remains that the approach to adoption as a child care arrangement is not yet fully

developed. It calls for a multi pronged approach, changes in all related fields, a higher

priority covering all aspects followed by sincere implementation.

The HAMA provides that there should be an age difference of 21 years between the

adoptive parents and the adopted child whenever they are of opposite sex. This is intended

to prevent sexual abuse.

Personal laws of Muslims, Christians, Parsis and Jews do not recognize complete adoption.

As non-Hindus do not have an enabling law to adopt a child legally, the people belonging

to these religions who are desirous of adopting a child can only take the child in

'guardianship' under the provisions of The Guardians and Wards Act, 1890. The statute

does not deal with adoption as such but mainly with guardianship. The process makes the

child a ward, not an adopted child. Under this law, when children turn 21 years of age, they

no longer remain wards and assume individual identities. They do not have an automatic

right of inheritance. Adoptive parents have to leave whatever they wish to bequeath to their

children through a will, which can be contested by any `blood' relative.

The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to

minority and guardianship. As in the case of unmodified law, it has upheld the superior

right of father. It lays down that a child is a minor till the age of 18 years. Natural guardian

for both boys and unmarried girls is first the father and then the mother. Prior right of

mother is recognized only for the custody of children below five. In case of illegitimate

27 | P a g e

children, the mother has a better claim than the putative father. The act makes no

distinction between the person of the minor and his property and, therefore guardianship

implies control over both. The Act directs that in deciding the question of guardianship,

courts must take the welfare of child as the paramount consideration. Section 6 of the said

Act, provides about the natural guardians of a Hindu minor. Section 7 of the very Act

speaks about the natural guardianship of adopted son.

Section 7 of the Hindu Adoptions and Maintenance Act, prescribes the general capacity of a

Hindu male to take a son or a daughter in adoption if he is of sound mind and not minor.

Similarly, section 8 of the Act empowers a female Hindu to take a son or daughter in

adoption subject to the fulfillment of conditions prescribed in the Act. Section 10 speaks

about the persons who may be adopted. This section provides that a child male or female is

capable of being taken in adoption if he or she is a Hindu and not already been adopted.

From the above provisions, it is clear that a son or a daughter is having equal opportunity

for the purpose of adoption. It is also pertinent to mention that both male and female are

entitled to adopt a son or a daughter under the provision of the law. The aforesaid

enactments remain silent about the orphan, abandoned and surrendered children. There was

no codified legislation dealing with the adoption of the children of these categories.

Considering all the aspects mentioned above laudable attempt were undertaken by the

legislature by the stipulations, which have been made in Chapter IV of the Juvenile Justice

(Care and Protection of Children) Act, 2000.

It is pertinent to mention here that there arises confusion as to the interpretation as well as

concept of adoption as because the expression “Adoption” has not been defined at all in the

enactments like HAMA or GAWA. Moreover, the legal status of the adopted child has not

declared to be equal to that of a biological legitimate child. Though at the initial stage the

Juvenile Justice (Care and Protection of Children) Act, 2000 did not contain these factors,

these are introduced in Juvenile Justice (Care and Protection of Children) Amendment Act,

2006. There is hardly any awareness about a 2006 amendment to the Juvenile Justice Act

which allows non-Hindus to adopt.

The concept of adoption has been well defined in Sec.2 (aa) of the said Act. According to

the said Act and its amendment provisions are made for adoption of children who are

28 | P a g e

orphaned, abandoned or surrendered, it also

allows adults, irrespective of their marital status and irrespective of the number of living

biological children they have, from any community to adopt and doesn’t restrict it to

Hindus only. This enactment shows that the legislature may be found to have accepted the

concept of secular adoption whereby without any reference to the community or religious

persuasions of the parents or the child concerned, a right appears to have been granted to all

citizens to adopt and all children to be adopted.

In order to facilitate the implementation of the norms, principle and procedure relating to

adoption of children laid down in L.K. Pandey v. Union of India, 3 the Govt. of India had

issued several guidelines and subsequently converted the Central Adoption Resource

Agency (CARA) into an autonomous body and also ratified Hague Convention of 1993 and

the United Nation Declaration of the Rights of the Child adopted by the General Assembly

of the United Nations in 1989 on inter country adoption. Later Juvenile Justice (Care and

Protection of Children) Act, 2000 was passed for children in need of care and protection.

In-country Adoption of Indian children is governed by In-country Guidelines-2004 while

Inter-country Adoption procedure is governed by a set of Guidelines last issued on 14th

February’2006. These Guidelines are a follow up of various directions given by the

Supreme Court of India in L.K. Pandey v. Union of India4 and other cases. In this case our

Apex court held that since there is no statutory enactment in our country providing for

adoption of a child by foreign parents or laying down the procedure which must be

followed in such a case, resort is had to the provisions of the Guardians and Wards Act,

1890 for the purpose of facilitating such adoption. These Guidelines are amended and

updated from time to time keeping in mind the welfare of such child. While CARA is

engaged in clearing inter-country adoption of Indian children, its principal aim is to

promote in-country adoption.

In fact, CARA ensures that no Indian child is given for inter-country adoption without

him/her having been considered by Indian families residing in India. CARA also provides

financial assistance to various NGOs and Government run Homes to promote quality child

care to such children and place them in domestic adoption.

VIII. DRAWBACKS OF EXISTING LAW

29 | P a g e

In my opinion, there are various drawbacks in the existing laws on adoption in India. Some

of the drawbacks are discussed below –

Section 7 of the Hindu Minority and Guardianship Act, 1956 is an example of defective

legislative provision on the part of the legislature. Section 7 simply says that on adoption

the natural guardianship of the adopted son passes on from its natural parents to the

adoptive father and after him to the adoptive mother. This section in its nature and contents

has two inherent defects

i. it fails to take notice of the cases of adoptive daughters, and

ii. It also fails to consider the cases of adoption by women having no husband.

Consequently, this section serves no purpose at all. The position depicted in section 7 is

implicit in the provision of existing section 6 of the Act. Section 7 seems a futile

exercise without taking into account the provisions of the Hindu Adoption and

Maintenance Act, 1956, which was in the process of making when the Hindu Minority

and Guardianship Act, 1953 was passed.

It is clear that section 6 of the Hindu Minority and Guardianship Act is exhaustive in its

nature. It speaks about the natural guardians of a Hindu minor boy and girl, both legitimate

and illegitimate. It also takes into account the case of married (minor) girls. Though it is

silent about the adopted son and daughter, but it can be presumed without hesitation that it

applies to adopted sons and adopted daughters too. Section 7 is confined to the natural

guardianship of adopted son only. The reason of non consideration of the cases of adopted

daughters seems that the Hindu adoptions and Maintenance Act, which enabled Hindu men

and women, to adopt daughter was in making when the Hindu Minority and Guardianship

Act was passed. If the legislature would have been vigilant enough this provision could be

included in this Act or the coverage of section 6 could be extended to include clearly the

cases of adopted children.

The Central as well as various state governments have laid down guidelines and set up a

board to give certificate of recognition to adoption agencies, but the agencies concerned

flout all laws and regulations governing adoption. CARA, which is expected to promote

intra-country and inter-country adoption and monitor the integration of adopted children

with their new families. But the CARA has little to do with the adoption procedure and

30 | P a g e

follow up with the adoptive parents. Fake and shady agencies have managed to get

themselves registered with the CARA without too much trouble. The licenses of the shady

agencies have also been renewed by the CARA which has been a bad record with the police

about the dealing of children. It also appears that the adoption agencies in India bypassed

the law and regulation that forbid any unauthorized payment. Illegal payment in adoption

has become a common practice. It also appears that the adoption takes place in fake names

and with false documentation.

The Hindu Adoption and Maintenance Act is parent oriented with religious colour. Under

this Act, a man without a child can adopt either a stranger or a near agnate, such as

brother’s son. But in practice, strangers are rarely adopted, the childless parent choose to

adopt a near agnate or his relative’s son. It is mainly the poorer and lower caste Hindus who

prefer to go beyond their clan or group. In upper and middle class families, it is not mere

childlessness combined with the ownership of landed property that includes many male

Hindus to adopt a son.

The next drawback of our Hindu Law of adoption is that an illegitimate child cannot be

adopted. The child must be a Hindu. However, the word ‘Hindu’ has been widely defined

and includes Jains, Buddhists and Sikhs or anyone who must be presumed to be Hindu

within the definition of Hindu in section 2 of the Hindu Adoption and Maintenance Act.

Illegitimacy is a major social problem in our society as millions of our children are

illegitimate. Adoption is in practice a common solution to a case of illegitimacy.

Another drawback of our Hindu law of adoption is that a Hindu spinster, a widow or a

divorcee can adopt a child for herself, but a wife cannot adopt a child even with the consent

of her husband.

According to section 8 and proviso of section 7, the Explanation mentions about the

capacity of a male or female Hindu to take in adoption. Male Hindu has the capacity to take

a son or daughter in adoption. Obtaining the consent of the wife or if there are more than

one living wife the consent of all of them is necessary for adoption, unless they or any of

them suffered any of the enumerated infirmities rendering such consent unnecessary. The

conscious and positive as well as deliberate omission to provide for a female Hindu seeking

or obtaining any such consent from a co or junior widow is a definite pointer to indicate

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that the legislative intent and determination was not to impose any such clog on the power

specifically conferred upon the female Hindu.6

To subject the exercise of power by the senior widow to adopt, conditioned upon the

consent of the junior widow where a Hindu male, died leaving behind two widows with no

progeny of his own, would render the exercise of power more cumbersome and

paradoxical, leaving at times, such exercise of power to adopt only next to impossibility.

The object underlying section 7 of the Hindu Adoption and Maintenance Act is to

completely abrogate the customary Hindu law under which a male Hindu can foist the

relationship of an adoptive mother upon his wife without her consent or even despite her

objections. After the Act, if the requisite consent of the wife is obtained, the wife is

regarded as the adoptive mother because the adoption so made by a male Hindu is not only

himself but by his wife as well. In case of a Hindu female, there is no such provision for her

taking an adoption during the husband’s lifetime even if he consents. In other words, in the

case of an adoption by a Hindu female, there is no question of her making an adoption in

any contingency in which the adoption could be held not only for herself but to her husband

as well. Section 14 contains the deeming provisions so called, in the case of an adoption by

a male or female and this has to be read along with sections 7 and 8.

It is also important to notice that all the ‘deeming’ provisions relating to affiliation in

section 14 of the Hindu Adoption and Maintenance Act are only in relation to living

persons and not to persons who were dead at the time of the adoption. Section 14(1) refers

only to the living wife who should be deemed to be the adoptive mother and it does not

include a wife who was dead at the time of the adoption. This shows that the deceased wife

is not to be regarded as the adoptive mother of the boy adopted. If in the case of a deceased

wife there is no such affiliation the position is a fortiori in the case of a deceased father.

Reading sections 8 and 14 of the said Act, together the widow has no capacity to make an

adoption to the deceased husband and such an adoption will not therefore be in accordance

with the provisions contained in chapter II of the said Act within the meaning of section 5.

6 G. Appaswami Chettiar v. Sarangapani Chettiar ; AIR 1978 SC 1051

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A comprehensive law on adoption which is the ideal solution seems so far away, so this is

better than nothing. Because of the lack of an Act so many parents who already have one

adopted child and who are excellent candidates to adopt another child of the same sex,

cannot do so. (HAMA does not allow Hindu parents to adopt more than one child of the

same sex.) Most of these children then go in for inter-country adoptions, often into families

where there are several children. Most important feature of the said Act 2000, and its

amendment 2006, is that it hides an adoption law in it with no reflection on how it is to be

implemented or its repercussions.

The section on adoption in the said Act has been written imprecisely and with little

attention to detail. The creation of a parallel new structure for adoption headed by Juvenile

Justice Boards in the various districts under Magistrates with "special knowledge and

training in child psychology", will replace the present system of family courts, which have

worked reasonably well. The said Act will require a substantial amount of funds and it may

not be always possible to find Magistrates with the desired background in child welfare,

resulting in posts remaining vacant. This will delay an already delay-prone system.

Among the most important changes that are made is dropping the 'inter-country adoption

prohibition clause'. Before the amendment the practice for adoption is that foreigners are

given the choice of adopting a child only after he/she has been rejected by Indian parents.

The amendment entails that foreign parents will be treated on par with Indians. This clause

will cut down red-tapism and hasten the adoption process.

Amending the act was not enough; there has to be more clarity about procedures and

information on how the law should be applied. There are other, grimmer facts about

adoption—like no one, not even foreigners, want to adopt mentally challenged

children. Activists emphasise that there is no clarity on the provisions for adoption in the

Juvenile Justice (Care and Protection) Act.

There seem to be no rules or infrastructure in place nor is there clarity on related issues,

like if the law will apply to Muslims. As it stands, the amendment to the JJ Act defines

adoption. Actually this Act would apply to all Indians. It is not clear how this law would

override the provisions of other personal laws. The Muslim personal law, for instance, does

not permit adoption. The government can’t try and plug loopholes in one Act by amending

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another. The adoption law in India needs an amendment to bring in greater uniformity for

all religions, but it needs to be done more systematically and not just by amending the JJ

Act.

The enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its

subsequent amendment in 2006 is definitely a significant effort of the legislature towards

recognition of adoption of orphan, abandoned and surrendered children by people

irrespective of their religious status. It can’t be denied that it is a secular legislation only

under which any person can adopt a child being orphan, abandoned and surrendered child

irrespective of his/her religion. It is more children oriented unlike other legislations. But it

may be mentioned at the same time that some more factors need to be considered

specifically by the legislature. As for example, this Act stipulates adoption by any person

irrespective of his/her marital status, but it does not specify whether the consent of the other

spouse is required to be obtained by the adopting spouse in case adoption by a married

couple. This might create misconceptions among the Hindus as in Hindu Laws (HAMA)

taking consent of the wife by her husband is an essential criteria for adoption. Secondly, the

Act is silent about the criteria for age difference between the adoptee and adoptive parents

in case they are of opposite sex. This is an essential factor for adoption, which should be

considered seriously for the purpose of preventing child abuse and trafficking. All these

facts are obviously applicable to all religions and therefore, it is necessary to specify them

for the interest of the children.

Getting children into the adoption stream is one of the key factors that influence the process

of adoption in India. Only relinquished children come directly under the care and protection

of the Agency. The agency receives its inmates, abandoned or committed by the concerned

court in addition to those who are directed by the Child Welfare Committee or Juvenile

Justice Board.

IX. SUGGESTIONS AND RECOMMENDATIONS

From the point of view of the researcher there are some suggestions have been given below

which may be implemented at the legislative and administrative level, which would make

adoption more effective in India –

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Section 7, as it appears on the statute, reflects the legislative defect in draftsman ship. It

serves no purpose. It needs to be amended. The cases of natural guardianship of adopted

sons and daughters adopted by a Hindu male or by a Hindu female (having no husband) can

be covered by inserting two new clauses, just after clause (a) of section 6 of the Hindu

Minority and Guardianship Act, namely –

(a) i) in the case of an adopted son or daughter by a Hindu male the adoptive Father

and after him, the adoptive mother.

(a) ii) in the case of an adopted son or daughter by a Hindu female (having no

husband) – the adoptive mother.

The adoption charges and donations must be fixed. The prescribed fee for an inter-country

placement is obviously higher than an internal one. . Many Indian agencies apparently have

tie up with agencies abroad and collect huge sums as gifts and donations that go

unaccounted. Hence, adoption charges must be prescribed in Rules and appropriate

authorities must ensure that mal-practices are not taking place.

Usually the Child Study report (CSR) is prepared once the child is free for adoption. The

CSR is obviously prepared by the social worker of the agency who need not be an

experienced person. Hence it is to be submitted that the CSR must be prepared and signed

by a senior staff of the organization that should be held personally responsible for the

report.

After legal adoption, there should be statutory provisions in law for monitoring and filing

progress reports on the well-being of respective children. In situations that are detrimental

to the interests of the child in question, there should be provisions to initiate appropriate

action for the best interest of the child. The Child Welfare Committee of the concerned

district may be empowered to do the needful.

As per the provisions of Hindu Adoption and Maintenance Act, adoption is irrevocable and

confers full status of a biological child, including the right to inherit.Parents cannot adopt a

child of a particular sex, if they already have a biological or adopted child of the same sex.

According to Section 5(1) of HAMA, if adoption by a Hindu is not in accordance with its

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provisions, the same shall be treated as void. Hence, for Hindus, Juvenile Justice Act

cannot be of any use in the matter of adoption.

In order to promote, implement, supervise and monitor the non-institutional programmes

including adoption, foster care and sponsorship at State level, a State level Adoption

Advisory Committee shall be constituted in every State .Powers and functions of these

committees should be clearly mentioned. At least fifty percent of the membership of the

Committee shall necessarily be women of unblemished social image.

With the passing of the Hindu Succession Act, 1956, which treats sons and daughters

equally in the matters of succession. So the law of adoption among Hindus should be

simplified. There is no longer any justification for allowing a husband to prevent his wife

from taking a child in adoption after his death. Now after passing of the said Act, the

adoption made by a Hindu widow will be in her own right. No person need be divested of

any property which has vested in him by reason only of the fact that subsequent to such

vesting an adoption has been made. This rule of divesting has been the case of many a

ruinous litigation.

In India, there is no secular law of adoption covering all the people. Although the India

government had attempted several times since independence to pass a uniform and secular

bill for the whole country, but the Muslims and a section of the Parsis have had strong

objections to the various bills introduced in Parliament. As result, Muslims, Christians and

Parsis have no adoption laws of their own and they have no adoption rights but only a

guardianship rights under the Guardians and Wards Act 1890 where the adopted child does

not get the inheritance and other rights.

Article 44 of the Constitution declares that the State shall Endeavour to secure for the

citizens a Uniform Civil Code throughout the territory of India. The Law Commission, in

its 153rd report, recommended that a uniform law be enacted to regulate adoptions, but

nothing seems to have happened in this regard. Over the years several attempts were made

to formulate a general secular law on adoption. The attempts of Parliament in this direction

did not bear fruit, all these went in vain on account of a number of reasons. Being a

signatory to United Nations Convention on Rights of the Child (UNCRC) and The Hague

Convention on Inter-country Adoption, India is obliged to enact appropriate legislation on

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adoption, applicable to all societies and communities alike. So a Uniform Adoption Law in

India should be introduced, that definitely has to be appreciated.

X. CONCLUSION

This project is a comprehensive and exhaustive research on the topic of “Adoption laws in

India: review and recommendation needed. Adoption has always been considered a

wonderful opportunity to provide the child with home and the parents a child. It offers an

excellent alternative to institutional care for an abandoned, destitute or neglected child in an

atmosphere of happiness, love and understanding which only a family can provide. This

project consists of 10 chapters which gives an exhaustive analysis of the topic of Adoption.

This project gives the comprehensive study of the laws relevant to adoption. The existing

rules, regulations, statutes, case laws and changes that are need of the time.

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. Adoption is the transplantation of a son from the family

in which he is born, to another family where he is given by the natural parents by way of

gift. The adopted son is then taken as being born in the new family and acquires rights,

duties and status there only, and his tie with the old family comes to an end. The concept of

adoption is concerned with Hindus only. Currently, the adoption under Hindu Law is

governed by The Hindu Adoption and Maintenance Act, 1956.The Hindu Adoption and

Maintenance Act, 1956 extends to only the Hindus.

The Hindu Adoptions and Maintenance Act (HAMA), 1956, provides for adoption of

Hindu children by the adoptive parents belonging to Hinduism. This is not applicable to

other communities like Muslims, Christians and Parsi. They have to recourse to Guardians

and Wards Act, 1890.

In J.J. Act, 2000 say that the primary aim of adoption is to provide a child who can’t be

cared for by his biological parents with a permanent substitute family. The family of a child

has the primary responsibility to provide him care and protection. Orphan, abandoned or

surrendered children can be adopted for their rehabilitation through such mechanism as

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may be prescribed. in J.J. Act as well as the jurisdiction of the Family Court as mentioned

in the Central Rules under J.J. Act and the Family Courts Act.

CARA is an autonomous body and also ratified Hague Convention of 1993 and the United

Nation Declaration of the Rights of the Child adopted by the General Assembly of the

United Nations in 1989 on inter country adoption. Later Juvenile Justice (Care and

Protection of Children) Act, 2000 was passed for children in need of care and protection.

Juvenile Justice Act, 2000 provides for the Child Welfare Committee. This Committee has

the sole authority to declare the child in need of care and protection who are orphan,

abandoned or surrendered free for adoption.

Inter-Country adoption is relatively a new concept. It did not find place in the top priorities

of the legislators. There was not and still is not a legislation exist which primarily Adoption

in India has a flavour of antiquity. All over the world the concept of adoption has

evolved and has become child ‐ centric. In India the change has just begun. Some

modifications in adoption laws through Juvenile Justice Act are a welcome step, the fact

however remains that the approach to adoption as a child care arrangement is not yet fully

developed provides for the rules regarding Inter-Country adoption.

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BIBLIOGRAPHY

STATUTES:

1. The Hindu Adoptions and Maintenance Act (HAMA), 1956

2. The Guardians and Wards Act 1890.

3. The Juvenile Justice (Care and Protection of Children) Act, 2000

4. The Juvenile Justice Care and Protection of Children Amendment Act, 2006

5. The Central Model Rules under Juvenile Justice Act

GUIDELINES:

1. Guidelines issued by Central Adoption Resource Authority

2. A Report on International Meet on Adoption- December 2003

3. Guidelines for Adoption from India 2006- CARA

4. The Juvenile Justice Act 2000

5. UN Convention on the Rights of Child (CRC)

6. Hague Convention

CASE LAWS:

(i) Manuel Theodore D’Souza & Anr.7Bombay High Court (Justice Rebello)

(ii) Andrew Mendez & others v. State of Kerala8 (judgment by Kerala High Court

pronounced on 19.02.2008)

(iii) Vinod Krishnaan v. Missionaries of Charity9

iv) G. Appaswami Chettiar v. Sarangapani Chettiar10

v)Laxmi Kant Pandey v. Union of India11 & others [W.P. (Crl.) No. 1171/1982

vi) AIR 1984 SC 469

vii) AIR 1984 SC 469

viii) Atluri Brahmanandam (D) Thr. Lrs. vs Anne Sai Bapuji

7 II (2000) DMC 292 8 Crl. MC. No. 2271 of 2007 9 1997 (2) KLT 863 10 1997 (2) KLT 863 11 AIR1984 SC469

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OTHER MATERIALS: 1) 1st International Conference on Inter- country Adoption organized by Child NGO

Federation.

2) Paper presented by A.S. Shenoy Chair, International Relations Committee, Indian

Council of Social Welfare, Mumbai.

WEBSITE MATERIALS:

1) http://www.scjudgments.com/search/caselaw

2)http://www.adoption%20docxs/guidelines%20for%20family%20adoption%20of.htm

3) www.adoptionindia.nic.in