In the present article, the author has explained laws of adoption in India and how it is varies with different religions while focusing on single parent adoption.
Hindu Adoptions and Maintenance Act, 1956 deals with laws relating to adoption rights of Hindus, Buddhists, Jains and Sikhs. Muslims, Christians, Parsis and Jews do not get their adoption process maintained by it because complete adoption is not recognized by these religions but if a person has a desire to adopt a child he/she can take the guardianship under section 8 of The Guardianship and Wards Act, 1890.
The Hindu Adoptions and Maintenance Act, 1956 has defined two categories of people eligible for adopting a child:
- Any male Hindu including Buddhists, Jains and Sikhs have the right to adopt a child but only when he is a major, mentally fit. In case he is married and has a living wife then adoption is possible only after the consent given by the wife unless she is declared incompetent to make decisions and is declared so by the court.
- Any female Hindu that includes Buddhists, Jains and Sikhs have the right to adopt a child if she is unmarried or in case married then her marriage should have been dissolved or her husband is incompetent to make decisions or to raise a child.
That means the Act provides eligibility to any Hindu including Buddhists, Sikhs and Jain to adopt a child if they have attained majority and are of sound mind. In case the person is married, they can adopt only after the permission of the living spouse.
Apart from this, The CARA Guidelines and Adoption Regulations, 2017 and The Juvenile Justice (Care and Protection of Children Act,2000) contain the procedure and guidelines for the process of adoption.
In Islam the term used for adoption is ‘Kafala’ which is not adoption as Islam only recognises ‘Acknowledgement of Paternity’. Thus, a Muslim cannot be a parent of an adopted child rather he can only play the role of a guardian/ward, It believes in preserving the integrity of the family line thus adoption in itself is not considered unlawful but if a Muslim person assigns the adopted child to himself similar to a biological child then that would be considered unlawful. However, in the recent landmark judgement of Shabnam Hashmi v. Union of India right of adoption has been extended to Muslims also. The three-judge bench consisting of Chief Justice P. Sathasivam and Justices Ranjan Gogoi and Shiva Kirti Singh ordered that “Right to adopt a child as per Juvenile Justice Act would prevail over all the religious codes as well as personal laws”
As mentioned under section 2(aa) of The Juvenile Justice Act, 2000, all the rights, privileges and responsibilities are conferred to the adoptive parent same as the ones attached with a normal parent-child relationship. If adoption in Christians and Parsis to be taken into consideration then these religions as well do not recognise adoption so the adoption is done only after seeking permission from courts under The Guardians and Wards Act, 1890.
Since Christians do not have an adoption act, they act as a foster parent to the child adopted. After the child attains majority he/she is free to be independent but does not have any right over property. However, after the Shabnam Hashmi judgement where the court held secular laws of adoption under Juvenile Justice Act will supersede personal laws children will be treated as their own by the parents not just foster children.
Single Parent Adoption:
In a study by Indian Association for Promotion of Adoption and Child Welfare it has been reported that the number of single women interested in adopting children is increasing rapidly. According to the Central Adoption Resource Authority, there has been 50% growth since 2015 in single prospective adoptive parents among which a majority are women approaching local adoption agencies for counselling. The Juvenile Justice Act was amended in 2006, and according to it the meaning of adoption is the process by which the adopted child is permanently separated by his/her biological parents and becomes the legitimate child of the adoptive parent with all the rights, responsibilities and privileges that are attached with the relationship.
Ministry of Women and Child Development under Ms. Maneka Gandhi has made very fascinating progress by issuing the Central Adoption Resource Agency (CARA) Guideline in 2015. The guidelines talk about the rules governing female adoption rights as it allows a female to adopt a child of any gender and also the minimum age for adoptive parent is lowered from 30 to 25. Although on paper adoption of a child by a single parent is no longer a major problem, when we face reality and come across incidents it appears that despite a favourable law, single men and women still struggle to adopt a child in India with delay formalities and single parents often being suggested getting married first as they are considered to not have a stable household. Often laws around single parent adoption are referred to as not gender-neutral because men do not have the same privileges or options as women as is evident through a data by UN Women report which states 8% of households globally are single-parent households of which 84% single parent in the world are women.
Under Juvenile Justice Act Adoption Rules for Men are:
- The parents who are going to adopt the child should be physically and mentally fit and have the motivation to adopt the child and take good care of them and provide them with a better lifestyle.
- If the prospective parents are married then it is required for both the partners to give their consent for adoption.
- An unmarried or divorced person can also go for adoption but only after fulfilling the conditions laid down by the authorities and adhere to the guidelines and rules of respective acts.
- Everyone is allowed to adopt a child of their choice the only exception is an unmarried male who cannot adopt a girl child.
- One should adhere to all the criteria and rules framed by the authorities.
Although clause 4 questions the gender neutrality of the rules and is criticized as women in India can adopt a child of any gender. However, looking at the safety of women in India explains the inclusion of this clause. Be that as it may, it does not validate the point of it being gender-neutral because women adopting male child or adoption, in general, doesn’t come with a sure sort guarantee of safety and the whole concept will fail.
Procedure for Child Adoption in India:
- One who wishes to adopt has to fill a form online to register which is available on the CARA website or can reach District Child Protection Officer (DCPO).
- Home Study Report of the prospective parents is then created by the adoption agency within 30 days of the registration.
- Once the Home Study Report is posted on the database, prospective parents are allowed to tell their preferences and choose a child.
- Maximum of 6 children’s photograph is shown to the adoptive parent along with their medical report and other studies. They are given a period of 48 hours to reserve a child for possible adoption so that rest of them could be released.
- Meetings are being fixed between prospective adoptive parents and adoption agency and parents are also allowed to meet the child.
- This process should not take more than 15 days to complete and also after the completion at the time of handing over the child to the adoptive parents they need to sign the Child Study Report in the presence of a social worker.
- If in case the compatibility between parent and child is not good then the process of matching starts all over again.
According to CARA guidelines adoption process in India takes not more than Rs. 46,000.
Youngest Single Parent India:
Single parent adoption is mainly dominated by women and thus when a man decided to adopt a physically challenged child, it was a big deal. Aditya Tiwari, a Pune based engineer at the age of 27, decided to adopt a child but his application was rejected as the legal age for a person to adopt was 30 along with him being unmarried. After the amendments in the CARA guidelines in 2015, it was reduced to 25 years of age which enabled Aditya to adopt Avnish, a boy suffering from Down Syndrome who was abandoned by his biological parents in an orphanage. Aditya adopted Avnish on January 1, 2016, at the age of 27 thus becoming the youngest single parent in India.
Adoption is a way of experiencing and enjoying parenthood along with aiding those children who do not have the privilege to get be cared for by their biological parents. Moreover, since commercial surrogacy has been banned in India, it’s not possible for unmarried people to have children as only couples who are married for at least five years are allowed to go through surrogacy. Thus, the only way available to a single parent is adoption but despite the presence of favourable adoption rules, society serves as a barrier. This society’s mindset needs to be changed and it should be accepted that every person has the right to go by their own choices.
Adoption in itself is considered a moral act. Due to biological or other complexities a person may not be able to raise a child of their own, and in order to complete his/her family or to experience the love and emotion of being a parent, they opt to adopt a child. The laws should be as easy and helpful as possible to streamline this process. The scrutinizing process should be made very strict as in the end it is the life and future of the child. In the author’s opinion, one who is opting for adoption should not only look for beautiful looking children but also should think about children with disabilities as it can be a way to make their lives better.
 Shabnam Hashmi v. Union of India and Ors. AIR 2014 SC 1281