Adoption Laws – An Indian Perspective

Children are considered the precious gems of a country. Our future depends on their overall development. The concept of family upholds marriage, and children as a fruit of the said marriage. Maternal mortality, birth rate, infant mortality rate are indices that are used to predict development. In a civilized society, all children are provided the emotional and material care needed, whether it is institutionalized or within the family. That is what we like to believe but unfortunately, it’s not always true. There are around 60,000 children being abandoned per year in India.[1] The infertility rate among married couple is also increasing. In a utopian paradise both should balance and all should get a home. This paper studies the different aspects of adoption with special relevance to Indian scenario.

Adoption Through the Ages

Ramayana and Mahabharata, Indian historical epics, have references to adoption. Many of Rome’s emperors like Tiberius, Nero and Caligula were adopted. Adrogatio was a kind of adoption practice in Rome in which consenting adults were adopted.[2] Before adoption became legalized, the abandoned children were often picked up for slavery. China had a type of adoption where males were adopted to perform the duties of ancestor worship.

Legalized Adoption in The Western World

In the United States, adoption became legalized in the nineteenth century. The first modern adoption law was the Massachusetts Adoption of Children Act, 1851.[3] There was a lag in adoption reforms in other industrialized nations. The best example is England. The country did not pass adoption legislation until 1926.[4] In the United States, apart from limited federal, constitutional and statutory law, adoption is controlled by state law.  The Federal Adoption Assistance and Child Welfare Act, 1980 provides for federal funding to be distributed to the qualifying state’s foster care and assistance programs.[5] The Adoption and State Families Act of 1997 helps the state programs in encouraging the adoption of children in foster care.[6]

Legalized Adoption in India

The Children’s Act was enacted in the Presidencies of Madras and Bombay in 1920. The main purpose of this legislation was to provide care and protection to all children.[7] During the time of Independence, there were changes brought about in social legislation and policies which had a huge positive impact on family policies concerning child welfare.

Laws Pertaining to Adoption

According to Section 2(aa) of Juvenile Justice (Care and Protection of Children) Amendment Act 2006, “adoption means the process through which the adopted child is permanently separated from his biological parent and becomes the legitimate child of his adoptive parents with all right, privileges and responsibility attached to the relationship”. [8]

Hindus in India are able to adopt legally whereas for all other religions it is difficult based on their personal laws alone. For them it was allowed to a certain extent by the Guardians and Wards Act 1890.[9] The Hindu Adoption and Maintenance Act of 1956 brought about a few reforms related to Hindu Adoption. Under Muslim law adoption is known as kafala and an adopted child should retain his/her biological family surname. If the biological family has transferred any property or wealth to the child, then the adoptive parents should not intermingle that property/wealth with their own.[10] Christians in India could adopt children by resorting to section 41 of Juvenile Justice (Care and Protection of Children) Act 2006. Only a male child could be adopted under old Hindu law. Under this old law the male had the right to adopt even without the consent of his wife.[11]

 Amendments in Personal Laws

All difficulties faced by prospective Muslim, Christian and Jewish parents using the personal laws were done away with by Guardian and Wards Act of 1890. Jammu and Kashmir was exempted from this law. However, under this act the child and his property could have more than one guardian.[12]

The old Hindu law has been amended to form the Hindu Adoption and Maintenance Act, 1956. Old Hindu Law had many problems which were done away with. In this Act, it is said that any adult Hindu male who is of sound mind can adopt a child, but consent of the wife is necessary. Hindu female can adopt a child only if she is unmarried, divorced, widowed or if her husband suffers from certain disabilities. The capacity to give away the child for adoption is stated in Section 9 of this Act. A father can give the child for adoption only after the mother consents to it. The mother can give the child in adoption only if father is dead or declared as unsound in mind.[13]

Recent Changes

Fosterage is still in its infancy in India. It came into recognition with the introduction of Juvenile Justice Act of 2000. The scope of adoption was narrowed down by Hindu Adoption and Maintenance Act which provided for adoption of Hindu children by adoptive parents belonging to Hinduism. Secular adoption law came into force in 2000 under Juvenile Justice (Care and Protection) Act 2000, under the umbrella of Rehabilitation and Social Reintegration (Chapter IV) and then was taken forward under the Amendment Act 2006.

The clarification guidelines on adoption came up in 2007. The current Amendment Act 2015 is both secular and also supersedes the previous laws. Along similar lines, keeping in mind the welfare of children who commit some offence due to lack of proper parental care, and also regarding their adoption, Juvenile Justice Act of 2015 has been introduced. This Act provides specific provisions regulating in-country and inter-country adoptions under Chapter VII.

CARA (Central Adoption Resource Authority) is a statutory body of Ministry of Women and Child Development. It functions as statutory body for adoption of Indian children. Its main aim is to monitor and regulate in-country and inter-country adoptions. It deals with adoption of orphans and abandoned children. It functions in accordance with the Hague Convention on Inter-Country Adoption 1993 ratified by the Government of India in 2003.[14]

Gender Bias

The Hindu Adoption and Maintenance Act 1956 followed by Juvenile Justice Act removed most of the problems of gender bias but some still persist. As discussed above we could see that the female in a marriage can adopt a child only if her husband dies or suffers from disability. But this is not the case for a male. The couple can adopt a child in the husband’s name if wife consents. This shows up as gender bias.[15]

Issues in Adoption

Even though the adoption laws are said to be efficient in our country, there are some flaws. The whole process is time consuming. There are many legal formalities for the same which itself take up a considerable period of time. After that the wait for the matching child starts. Waiting period can vary from a few months to years in both in-country and inter-country adoptions. This time-consuming process can cause stress to prospective parents.

This process includes very strict rules and regulations which are insurmountable and this presents as another difficulty. Some applicants fail to adopt a child as they cannot meet all these rules. This is a form of discouragement for them. According to Child Adoption Resource Information and Guidance System (CARINGS), for every 10 adoptive parents in India only one child is available. This is not because there are no orphans but because these children are not legally available for adoption. Another disadvantage in adoption is gender bias, which has been mostly done with but some areas also need to be corrected as mentioned before. [16]

NRI Adoption

According to CARA, a Non-Resident Indian should be treated at par with Indians living in their homeland. It was also stated that any Non- Resident Indian wishing to adopt an Indian child can approach the authority concerned for preparation of their Home Study Report and for their registration in CARINGS.[17] There are many happy stories related to NRI adoption like that of Kinjal and Sunil (names changed) who originally from Gujarat live now happily in the US.[18] However, there are sad stories of such adoptions gone wrong too. There are instances where the child had died by the hands of his or her new parent. So caution should always prevail.

Landmark Cases Related to Adoption

Shabnam Hashmi V. Union of India[19]

In this particular case, the Court was requested to enable adoption of children irrespective of religion, caste, creed etc. Here, the petitioner was a Muslim who adopted a young girl. She was subject to Muslim Shariat Law which did not recognize an adopted child to have equal status of a biological child.[20] It was requested by the petitioner to recognize the right of an individual belonging to any religion to adopt a child. A three judge bench of SC decided this case. [21]

Counsel for the petitioner states, in view of the Juvenile Justice Act 2000, to adopt a child irrespective of religion stands satisfactory.[22] Thus, it was held by the Supreme Court in its final judgement that prospective parents irrespective of religious background have the right to adopt children. Religion is no bar for adoption. Judgment was delivered by Justice Ranjan Gogoi.

Lakshmi Kant Pandey V. Union of India, 1984[23]

This case is one of the landmark cases in the study of adoption. It deals with inter-country adoptions and Court laid down guidelines to protect the interest of the child. A petition was filed by Advocate Lakshmi Kant Pandey under Article 32 of the Constitution.[24] This petition is about the malpractices by some social organization which send Indian children for adoption overseas. The petitioner pointed out that these children were ending up in unhealthy situations. The Supreme Court issued directions to establish a regulatory body to overlook the adoption process. That is how CARA came into being.[25]

What More is to Be Done?

As demand for adoption is rapidly increasing in our country; it is high time we make child and prospective parent friendly policies to avoid time lapse. CARA should provide necessary guidance and other information to the parents who are looking forward for adoption in a user-friendly manner on their website. The process should be less tedious and also ensure that the time in waiting be reduced from the three or four years which is the norm now. Post adoption visits by the regulatory body should also be maintained to ensure the safety of the adopted child.

Conclusion

According to CARA (Central Adoption Resource Authority) which is handled by Ministry of Women and Child Development in India, the In-country Adoption number is 3374 in the year 2018-19 and Inter-Country Adoption is 653 in the same year.[26]

Adoption is the best way of providing every child a family. It brings an everlasting smile to parents who are eager to have a child. I conclude with these words of Doug Chapman,

“If you have a heart for adoption, don’t let fear stand in the way”


[1]Almas Sheikh,” Legal Framework Governing Adoption Laws in India” (law octopus, Feb 4 2015) <https://www.lawctopus.com/academike/legal-framework-governing-adoption-laws-india> [intro 1]

[2] Wikipedia- History- Adoption for well born<https://en.wikipedia.org/&gt; [5]

[3] The Adoption History Project-<pages.uorefon.edu/adoption/topics/adoptionhistbrief.html> [2]

[4]Ibid [2]

[5] Adoption Law: United States- <https://www.loc.gov/law/help/adoption-law/unitedstates.php> [Federal Statutory law 6]

[6] Ibid [6]

[7]Vinita Bhargava “Adoption in India- Policies and Experiences” Chap 3 43 (2005) <https://books.google.co.in/books&gt;

[8] Juvenile Justice (Care and Protection) Amendment Act 2006- No 33 of 2006

[9] Ajay Thakur, “All you Need to Know about Child Adoption in India” (ipleaders, 20 March 2017) https://blog.ipleaders.in/all-you-need-to-know-about-child-adoption-laws-in-india/

[10] Almas Sheikh,” Legal Framework Governing Adoption Laws in India” (lawctopus, Feb 4 2015) <https://www.lawctopus.com/academike/legal-framework-governing-adoption-laws-india&gt;

[11] ibid

[12] Ajay Thakur (n 9) [20]

[13] Almas Sheikh (n 11) [17]

[14] CARA official website <http://cara.nic.in/about/about_cara.html&gt;

[15] Almas Sheikh (n 11) Gender Bias in Adoption

[16] International Journal of Legal Developments and Allied Issues “Child Adoption in India: A Comprehensive Study” (The Law Brigade Group, Sept 25 2019) <http://thelawbrigade.com/family-law/adoption-law/child-adoption-in-india-a-comprehensive-study/&gt;

[17]CARA official website (n 14)

[18]Kamal Saiyed, “NRI couple based in US adopts two Navsari children” TheIndianExpress (Surat, 13 January 2018)

[19]Shabnam Hashmi v. Union of India [2014] 4 SCC 1

[20] Human Rights Law Network- HRLN “Supreme Court says prospective parents irrespective of religious background, have the right to adopt children.” < https://hrln.org/&gt;

[21]ibid

[22]Shabnam Hashmi v. Union of India [2014] (9); 7-8

[23]Lakshmi Kant Pandey v. Union of India [1984] SCR (2) 795

[24]Ibid 1

[25]International Journal of Legal Developments and Allied Issues “Child Adoption in India: A Comprehensive Study” (n 16)

[26] CARA official website- Statistics

Samyukta P Menon from National University of Advanced Legal Studies, Kochi

editor: vatsala sood

One thought on “Adoption Laws – An Indian Perspective

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: