CRITICAL ANALYSIS OF ADOPTION LAWS IN INDIA

1. INTRODUCTION 

Children are widely recognized as the future of a nation. Unfortunately, numerous children end up abandoned in orphanages, exposing them to various forms of exploitation. Tragically, some children become victims of human trafficking and sexual abuse. However, in more fortunate circumstances, some abandoned children find a new lease on life through the process of adoption. Adoption is a transformative journey that grants a fresh start to an adopted child. It is a noble endeavour that brings immense joy and happiness into the life of the adoptive child.

The adoption laws in India regulate the legal procedures involved in adopting a child and establish a system to safeguard the welfare and security of children who lack parental care. An adopted child enjoys the same rights and privileges as a biological child, including the right to inherit. Adoption is the legal procedure through which an individual becomes a parent to a child who is not biologically related to them. It involves the acceptance and approval of the child into the family. Once adopted, the child is considered to be born into the new family and assumes all associated rights, responsibilities, and social standing, effectively severing  

These laws have undergone progressive changes to give precedence to the child’s best interests, foster openness, and simplify the adoption process. They cover different aspects, such as the requirements for individuals seeking to adopt, the registration and oversight of adoption agencies, and guidelines for inter-country adoption. These laws mirror the evolving societal perspectives on adoption and the acknowledgment of children’s rights as fundamental factors in adoption proceedings. Adoption laws in India have experienced significant transformations over time, mirroring shifts in societal perspectives on adoption and the acknowledgment of children’s rights.

2. CHILD ADOPTION LAWS IN INDIA- ACT, ENACTMENTS, RULING AND DECISIONS

In India, there is no comprehensive adoption legislation that covers followers of several religions. The sole law in India governing adoption for Hindus and enabling them to lawfully adopt a child is the Hindu Adoption and Maintenance Act, 1956.¹ Only under the provisions of The Guardians and Wards Act, 1890², may members of other religions adopt a child; otherwise, they must place the kid under guardianship.

The adoption law in India is frequently praised for being a progressive piece of legislation that complies with global norms, particularly the United Nations Convention on the Rights of the Child, to which India became a signatory in 1992. The Indian government agreed to abide by the fundamental principles of children’s rights, such as putting the child’s best interests first, preventing discrimination, and taking into account the child’s viewpoint, by signing the Convention. Provisions in the Act encourage adoption as a substitute for institutional care for children.

• HINDU ADOPTION AND MAINTENANCE ACT

Hindu adoptions are governed by the Hindu Adoption and Maintenance Act, 1956. This Act applies to individuals who are Hindus by religion, including Buddhists, Jains, and Sikhs, as well as those who are not Muslims, Parsis, Jews, or Christians. The Act outlines the following eligibility criteria for adoption:

a. Any adult Hindu male who is mentally sound, not a minor, and eligible to adopt a son or daughter. If the male has a living spouse at the time of adoption, the consent of the spouse is mandatory.

b. Any adult Hindu female who is unmarried, divorced, widowed, or whose husband is declared incompetent can adopt a son or daughter.

In cases where there is already a biological child in the family, adoption of a child of the opposite sex is permitted. If a female adopts a male child, she must be at least 21 years older than the son, and if a male adopts a female child, he must be at least 21 years older than the daughter. The adopted child is granted the same rights as a biological child. It’s important to note that adoption under this Act is irrevocable, meaning it cannot be reversed or canceled once finalized.

• GUARDIANS AND WARDS ACT, 1890

Due to the absence of a comprehensive adoption law, individuals belonging to the Muslim, Christian, Parsi, and Jewish communities do not recognize the concept of full adoption. Instead, they follow their personal laws which do not grant adoptive rights. Under the applicable legislation, a person who wishes to care for a child can become the child’s guardian until they reach the age of 21. However, it’s important to note that this arrangement does not establish a legal parent-child relationship through adoption. Unlike the Hindu Adoption and Maintenance Act, 1956, this legislation does not bestow the same status as a biological child on the child who is being cared for.

• THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000

The Juvenile Justice (care and protection) Act, 2000 was passed by the Indian parliament in December 2000 with the intention of preserving and advancing the wellbeing of children who require care and protection. The original Act has been modified to better reflect the needs and rights of children. The Juvenile Justice (care and protection) Act, introduced in 2006, sought to make adoptions more kid-friendly. This Act broadened the concept of a “child in need of care and protection” to include “abandoned” and “surrendered children” as well as those working. This Act, unlike earlier law, does not include any religious limitations on adoption, and all Indian nationals are covered by its provisions. Considering the adoption of orphaned, abandoned, and surrendered children is not covered by these rules, there are misunderstandings and inconsistencies surrounding the custody, guardianship, or adoption of these children. Juvenile Justice (Care & Protection of Children) Act, 2000³ was passed in response. The adoption of two children of the same sex is permitted under this law, which is applicable to all Indian nationals. It creates a parent-child bond, gives the adopted kid rights, and develops a legal framework for the upbringing, growth, and rehabilitation of children who are in need. Similar to the Special Marriage legislation, 1954, which permits anyone to marry in India under that legislation regardless of their faith, the Juvenile Justice (Care & Protection of Children) Act acts as a standard legal framework throughout the nation. This act fills a void in the law regarding adoption by codifying it for children up to the age of 18.

• CENTRAL ADOPTION RESOURCE AUTHORITY

An independent agency functioning within the Ministry of Social Justice and Empowerment of the Government of India, Cara was founded on June 20, 1990. It is in charge of managing everything that has to do with adoption in the nation. Its primary responsibility is to control and monitor child adoptions in India, both domestically and internationally. The Hague Convention on Inter-Country Adoption of 1993, which the Government of India accepted in 2003, has rules for managing international adoptions, and Cara has been recognized as its Central Authority. Through its associated and reputable adoption agencies, Cara mainly focuses on assisting the adoption process for orphaned, abandoned, and voluntarily turned in children.

In the case of Laxmikant Pandey vs Union of India⁴ Advocate Lakshmi Kant Pandey filed a petition alleging malpractices and trafficking of children by social organizations and voluntary agencies that offer Indian children for adoption overseas. “The Supreme Court laid down detailed standards and norms to be saved for the adoption of children by individuals overseas. Many examples and references were alluded to while ‘talking about the issue, including the statutory provisions and the international standards.”

3. ADOPTION AMONGS THE DIFFERENT RELIGIONS IN INDIA

• ADOPTION UNDER HINDU LAW

Following Independence, the Hindu Adoption and Maintenance Act⁵ was passed as a part of the modernization and reform of Hindu Law. The Act partially complies with civil rights and equality principles by removing certain (but not all) sections that discriminate against women. This Act handles a number of issues, including gender preference, ability to adopt, eligibility to give a child up for adoption, and others. The 1956 Act is applicable exclusively to Hindus, as defined in Section 2 of the Act. This includes individuals who follow the Hindu religion, as well as Buddhists, Jainas, and Sikhs. The Act also encompasses legitimate or illegitimate children who have been abandoned by both their father and mother, or whose parentage is unknown, and are being raised as Hindus, Buddhists, Jainas, or Sikhs. Previously, only males were eligible for adoption, but the Act now includes a provision allowing the adoption of females as well. 

• ADOPTION UNDER MUSLIM LAW

The idea of adoption, which is accepted in Hindu law and creates a parent-child connection, is not sanctioned by Islamic or Mohammedan law. Because of this, a Muslim who wants to adopt must take legal recourse under the Guardianship and Wards Act of 1890. The principle of acknowledgement is stressed by the law because a Muslim cannot prove his paternity for a kid and fatherhood is not granted via adoption. Some writers, like Ameer Ali, Wilson, and Abdur Rahim, concur that adoption is not covered by Islamic law.⁶ They contend that adoption is forbidden by the Holy Quran, however this interpretation of Shariah law is wrong, and it is not the Holy Quran that forbids adoption. Adoptions were acknowledged and authorized among certain Muslims prior to the Shariat Act of 1937 based on custom. 

In the case of Muhammad Allahdad Khan v. Muhammad Ismail⁷, it was determined by the court that there is no equivalent concept of adoption in Muslim law as recognized in Hindu and Roman systems. Muslim law does not acknowledge adoption as a form of filiation.⁸

• ADOPTION UNDER CHRISTIAN LAW 

Christians do not have a specific adoption law, similar to Muslims, and therefore must approach the court under the Guardians and Wards Act, 1890.⁹

Christians are only permitted to adopt children through foster care under this law, not through formal adoption. Once placed in foster care, a child has the choice to cut all ties once they turn 18 and become an adult. Furthermore, there are no legal inheritance rights for foster children.

4. CHALLENGES IN ADOPTION

It’s crucial to recognize that private adoptions continue to take place in certain hospitals and through unregulated channels even if there are adoption organizations that have received governmental approval.

1. As they are occasionally thought of as being profit-driven organizations, adoption agencies frequently come under scrutiny and suspicion. Whistle-blowers keep a watchful eye on their actions.
2. Conducting research on adoption is difficult in certain places due to a lack of regular and complete data.
3. Many organizations in charge of data collecting could find it difficult to carry out their task during times of financial difficulty.
4. Contrary to Western cultures, Indian culture does not frequently support “open adoption,” in which the birth parents’ identities are made public. “Closed adoption” is the widely used strategy in India, placing a premium on discretion. Due to adoptive parents’ potential discomfort with disclosing their adoption status to their children, this practice applies to both rural and some urban households. Children finding out about this from outside sources may cause the parent-child bond to become less trustworthy.
5. Although single-parent adoptions are legally permitted, there is little information on their frequency and likelihood of success. To further understand this element of adoption in India, more research is required.

5. WAY FORWARD 

Furthermore, in the significant judgment of Mohd. Ahmed Khan v. Shah Bano Begum, it has become evident that there is a pressing need for a uniform civil code in India. Adoption requires a uniform law that transcends religious boundaries. Currently, religion becomes a determining factor in the adoption process, preventing childless parents from fully embracing the rights and responsibilities of being adoptive parents. A uniform civil code pertaining to adoption would eliminate this disparity and ensure that childless parents are not deprived of the opportunity to adopt a child. It would provide legal recognition to their parental status, allowing them to fulfil the role of parents to the adopted child. Therefore, the implementation of a uniform civil code regarding adoption is imperative to eradicate the challenges faced by childless parents in India.

6. CONCLUSION 

Hindu adoption rules have substantially changed throughout time, which has boosted the status of women in society. It is unfair, though, that Muslims in India cannot legally adopt a kid since there isn’t a unified civil law on adoption. Adopting a kid legally would be made possible in India by the implementation of a universal civil code, which would also improve the social wellbeing of childless parents. A code like that would guarantee that children get the correct attention, security, and a bright future. Adopting a standard civil code would make it possible for every orphaned kid to have access to education and a life they may never have dreamed of, notwithstanding the difficulty of the adoption procedure. It is crucial to emphasize that gender bias should not be a determining factor in the adoption of a child.

REFERENCES

https://www.lawinsider.in/columns/adoption-laws-in-india-an-insight#post-29049-footnote-3

http://www.penacclaims.com/wp-content/uploads/2020/06/Arundhati-Banerjee.pdf

http://docs.manupatra.in/newsline/articles/Upload/E8EFE493-114B-4E5B-A014-682EB1729301.pdf

https://lawtimesjournal.in/an-overview-of-adoption-laws-in-india/#_ftn24

1. Hindu Adoption and Maintenance Act, 1956 (HAMA) ↩︎
2. The Guardians and Wards Act, 1890 (GWA) ↩︎
3. Juvenile Justice (Care & Protection of Children) Act, 2000 (JJ ACT) ↩︎
4. Lakshmi Kant Pandey v. Union of India, 1984 AIR 469 ↩︎
5. Supra note 1 ↩︎
6. Adoption Laws in India: Challenging Existing law: Niraj Meena ↩︎
7. ILR (1888) 12 ALL 289 ↩︎
8. Ibid ↩︎
9. Supra note 2 ↩︎