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.
Copyright 2023 – Helpline Law
