Adoption under different laws in India

Adoption is a process of establishing a parent-child  relationship between persons who are not related by birth. It allows parentless  and orphan children to have parents, home, name and a good life and on the  other hand, it enables childless parents to have a child of their own.

Adoption-by-legal-course ensures irrevocable rights  to both adoptive parents as well as adopted child. In India, there are 3 main  existing legislations i.e.

     
  • The  Hindu Adoption and Maintenance Act of 1956 which is  applicable on Hindus, Buddhists, Jains and Sikhs.
  •  
  • The  Guardian and Wards Act of  1890 assist other religions i.e. Muslim, Parsi, Christian and Jews in adoption  as there are no concrete provisions under their personal laws.
  •  
  • The  Juvenile Justice (Care and Protection) Act of  2000, amended in 2010 covers the rehabilitation and social reintegration for  orphan children.

Adoption under different legislations in India

The  Hindu Adoption and Maintenance Act, 1956
  Hindu Adoption and Maintenance Act, 1956  changed the years long restrictions in adopting the child by eradicating  various gender based prejudiced provisions. The law is applicable on Hindus,  Buddhists, Jains, Sikhs and other religions that fall under the governance of  Hindu Law.

1. Who  is allowed to adopt?

Any Hindu Male:  

       
  • Who  is an adult and is of sound mind;
  •    
  •  If he is married, then adoption decision  should be made in consensus with his living wife;
  •    
  •  In case, his wife has abandoned the world for  any reason.
  •    
  •  If he is married but his wife has changed her  religion and is ceased to be  a Hindu;
  •    
  • If  his wife is declared to be of unsound mind by the court of appropriate  jurisdiction.
 

        Married   Woman can also adopt, if    
    •  She is a widow.
    •      
    •  She is a divorcee.
    •      
    •  Her husband has abandoned the world or changed  his religion from Hinduism to another, or is of unsound mind as declared by a  competent court.
    •    
       

    Unmarried Woman can also adopt, if:-

    •  She is an adult and is major.
    •        
    •  She is a Hindu.
    •        
    •  She is capable to adopt in terms of soundness  of mind.
         

    2. Who  can be adopted?

    • The child can either be a girl or a boy  if he/she is a Hindu; or;
    •          
    • He/ She has not been adopted before;
    •          
    • The age of the child is below 15 years;
    •          
    • The child is not married.
           

    The last 2 conditions can be legally  waived off if the adopting parent(s) belong to a Hindu Community where their  customs and usage allow them to adopt married person or person who have  attained the age of 15 years.

           

    3. What  are the necessary requirements for a valid adoption?

    • The adopting parent/person is legally  capable of adopting the child.
    •            
    • The giving or the biological parent is  legally authorized of giving in adoption.
    •  
    • The person who is to be adopted fulfills  the aforementioned eligibility criterion and hence, is legally capable of being  adopted.
    •            
       
           

    4. Capacity  of a Hindu male to adopt:

    • A Hindu male should be of sound mind and  has attained the age of majority.
    •            
    • He should have the legal capacity to  take in adoption.
             

    Provided following conditions are  fulfilled:-

             
                A. If he is married and has a living wife,  then he can adopt only with the consent of his wife.

             

      B. He doesn’t require consent of his wife  if:-

                 
      • His  wife has ceased to be a Hindu;
      •            
      • His  wife has completely abandoned the world;
      •            
      • His  wife is declared to be of unsound mind by the court of competent jurisdiction
               

      5. Capacity  of a Hindu female to adopt: The Act has promoted  the ‘Right of equality’ by enacting a separate provision defining the capacity  of Hindu female to take in adoption. It allows any female Hindu to adopt, if:-

      • She is of sound mind and has attained  the age of majority.
      •              
      • She is legally capable to take a boy or  a girl in adoption.
                 

      Provided following conditions are  fulfilled:-

                 

                      A. If she is married and has a living  husband, then she can adopt only with the consent of her living husband.

                   

        B. She doesn’t require consent of her  husband, if:

                       
        • Her  husband is deceased.
        •                
        • Her  husband has renounced the world completely.
        •                
        • Her  husband has changed his religions and thus ceased to be a Hindu.
        •                
        • Her  husband is declared to be of unsound mind by the court of competent  jurisdiction.
                   

                 

                  6. Procedure  for adoption: There is a need of following a valid  procedure to carry out adoption which involve a series of steps:

               
        • The parents/persons who are willing to take  a child in for adoption must fulfill the eligibility conditions and capacity to  adopt.
        •          
        • In order to take in adoption, they have  to get in touch with any voluntary coordinating agency or Child Welfare Agency  in their respective region/area.
        •          
        • The Agency will, then, register their  particulars by way of Application-Form.
        •          
        • The Agency will conduct a preliminary  interview with the adopting couple in order to understand their intention and  motivation behind adoption. It is a way to evaluate their reasons for adoption,  emotional health, their quality of married life, family & financial  background, couple’s attitude towards this big step and verify your application  along with submitted documents.
        •          
        • Next, this agency will identify a  placement agency and a suitable child that fulfills the legal requirements as  prescribed in the Act and the requirements of couple’s application.
        •          
        • Afterwards, a ‘Home-Study’ report is  prepared for perusal by the Agency.
        •          
        • The adopting parents will be called to  meet the suitable child as identified by the placement agency.
        •          
        • The Doctor selected by the adopting  parents will screen the child medically.
        •          
        • Once the decision has been made, the  prospective parents can file the petition at the court of apt jurisdiction,  where court hearing takes place. The court is required to dispose the adoption  case within a maximum duration of 2 months.
        •          
        • As the Court issues the decree, the  adoption is finalized.
        •          
        • The agency will be guided to ensure a  post-adoption follow up.
        •          
        • The adoptive parents or adopted child  cannot cancel the valid adoption or return back to his/her adoptive parents if  valid procedure has been followed. However, in case of any fraud in the  adoption proceedings, only the court can invalidate such an adoption. 
        •        
               

        7. Documentation  required under the adoption procedure

        • Passport.
        •                  
        • Residence proof.
        •                  
        • Income proof.
        •                  
        • Marriage certificate copy with a  photograph.
        •                  
        • A copy of divorce decree/death  certificate of spouse.
        •                  
        • A copy of birth certificate of couple.
        •                  
        • Medical certificate certifying the  health of the couple.
        •                  
        • An undertaking to permitting a follow up  post the adoption by a foreign or equivalent adoption authority. 

                      
                 
                What  are the property rights to adopted children under Hindu Law?         
          • After valid adoption decree has been  passed by the court, an adopted child will be deemed to be the child/legal heir  of his/her adoptive parents from the time of adoption. Hence, he has all the  legal rights to inherit the property of adoptive parents just like their  biological children.
          •          

            Muslim,  Christian and Parsi Law
            Muslims, Christian and Parsi do not have  any Act or Law that governs adoption proceedings. The Guardianship and Wards  Act, 1890 comes in aid to that Non-Hindu couple/person who wishes to adopt a  child. The Act allows ‘Guardianship’ but does not allow complete adoption, and  thus, makes the child a ‘Ward’ and the interested couple their ‘Guardian’.        

                     

            What  are the main provisions under the GWA Act for 'guardianship'?

                     
                         
            • It is applicable to all the children  with no relevance to race, caste or creed.
            •            
            • Unlike Hindu Adoption & Maintenance  Act, 1956, GWA Act doesn’t grant equivalent status to the adopted child as that  to the biological child of the adoptive parents. It only grants a  ‘Guardian-Ward’ relationship.
            •            
            • Here, the Act allows guardianship only  till the child is minor. This relationship lasts when the child attains the age  of 21 years. After completing the prescribed age, he/she will not remain as’  ward’ and will be considered as an individual identity.
            •          
                     

            What  is the Procedure under the Act?

                     
                         
            • The person seeking guardianship has to  place a completely filled application with the Court. The application must  provide complete information of the person, his reasons to become guardian and  any other information that is asked in the application.
            •            
            • After admitting the application, the  court will set the date of hearing where it will hear and view evidences,  requirements and then, will announce its decision after considering the  interests of minor and on the basis of its discretionary powers.
            •          
                     

            What  are the property rights to children adopted under this Act?

                     

            Under this Act, the child will only  become the ward of his/her guardian parents. He will not become their own child  and thus, do not take their name or inherit their property by any right.  However, if the adoptive parents wish to bequeath their property, then they can  do so by way of will, which can later be challenged by any of their blood  relative.

                     

            Inter-country  adoption:  Procedure, Documentation and  timeline
                          What  is Inter-country Adoption?

                     

            It is a new concept wherein the child is  adopted by a foreign national or person of foreign origin. In order to prevent  misuse or illegal use of the children, the adoption proceedings should be dealt  with extra caution and consideration. In India, there is no separate Act that  governs Inter-country adoption; still, it is covered under Guidelines Governing  Adoption of Children, 2015.

                     

            Also, as per the Supreme Court  Guidelines:

                     
                         
            • A foreign parent can adopt an Indian  child before he/she completes the age of 3 years.
            •            
            • In the absence of any concrete Act on  inter-country adoption, the provisions of Guardian and Wards Act, 1890 will be  followed for adoption.
            •          
                     

            Adoption  Procedure

                     

            The adoption procedure involves the following  steps:-

                     
                         
            • The foreign or non-resident Indian nationals  who wish to adopt a child of an Indian origin have to approach Central  Authority or an authorized foreign adoption agency for preparing or developing  their Home Study Report and for other essential actions.
            •            
            • Once the Home study report is prepared,  the application will be registered by the agency in CARA (Child Adoption  Resource Information and Guidance System) along with requisite documents i.e.  passport, residence proof, income proof, copy of marriage certificate and  photo, copy of divorce decree/death certificate of spouse, copy of birth  certificate of couple, medical certificate, an undertaking to allow follow up  after adoption by foreign Adoption or equivalent authority.
            •            
            • The said report and documents will be  carefully examined at CARA for ascertaining their eligibility and suitability.
            •            
            • The profiles of 2 children will be  referred to them for selection and they have to hold back any one of them  within 96 hours, with respect to their preferences.
            •            
            • Then, they will be required to sign  his/her medical examination report or child study report within 30 days.
            •            
            • They can request for personal visit to  meet the child, which will be obliged only after the application of adoption is  approved and accepted by CARA.
            •            
            • Once CARA sent it’s No Objection Certificate  (NOC) in favor of proposed adoption within 10 days from the receipt of the  acceptance of the child by the prospective adoptive parents, then only, the  prospective parents will be allowed to take the child in pre-adoption foster  care in India.
            •            
            • The specialized adoption Agency in India  will file an application in the district court of apt jurisdiction with  appropriate documents within 7 days from date of receipt of acceptance of the  child by prospective parents.
            •            
            • The adoption proceeding will take place  in court in- camera. The case needs to be disposed off within two months from  the date of filing of adoption petition.
            •            
            • On satisfaction, the court will grant  the certified adoption order to the agency which will further be forwarded to  the prospective adoptive parents within 10 days and will make necessary entry  in the CARA system.
            •            
            • Finally, the agency will provide the  child’s birth certificate to the prospective adoptive parents quoting their  names as the legal parents and date of birth as mentioned in adoption order.
            •          
                     

             (http://www.cara.nic.in/InnerContent.aspx?Id=163#Guidelines  – 2015)

                     

            Documentation  required under the adoption procedure

                     
                         
            • Passport.
            •            
            • Residence proof.
            •            
            • Income proof.
            •            
            • Marriage certificate copy with a  photograph.
            •            
            • A copy of divorce decree/death  certificate of spouse.
            •            
            • A copy of birth certificate of couple.
            •            
            • Medical certificate certifying the  health of the couple.
            •            
            • An undertaking to permitting a follow up  post the adoption by a foreign or equivalent adoption authority.
            •          
                     

            Rights  of the adopted child in terms of property and other benefits

                     

            In order to safeguard the right of  adopted child in foreign country, the foreign or NRI prospective adoptive  parents have to furnish a certificate from appropriate authority which will  state that:

                     
                         
            • The applicant is of sound mind and is  fit to adopt the child.
            •            
            • The adopted child will enjoy all the  rights as inherited by the biological child as well as of the citizen of that  country.
            •            
            • The applicant has made requisite  provision via security deposit or bond or in any other form, as prescribed, as  per the rules under this Act, in order to enable the child to be repatriated to  India, if it becomes necessary for any reason whatsoever.
            •          
                     

            The above- mentioned  legislations have been enacted with an objective to secure the rights of an  adopted child. Adoption within the ambit of legal framework transfers all the  legitimate rights and responsibilities from the biological parents to the  adopting parents. These personal religious laws govern the rules and  regulations of adoption

                     

            For any further assistance or queries,  please write to us office@indialawoffices.com.

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