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Child adoption laws in India

Meaning of Adoption: Adoption is the social, emotional, and legal process in which the children who are not raised by their biological parents become a full and permanent member of another family while maintaining genetic & psychological connections to their birth family.

Concept: When the natural or biological parents give away their child to another family by way of gift voluntarily and without any consideration, it is when the transplantation of the child takes place. The transplantation of the child from an old family to a new family is called “Adoption”.

Effects after Adoption

  • The child will cease to be a member of the family in which he was born and will become a member of his adopting family. He will be known as the “Dattaka Putra”.
  • The child will have no more rights or duties for status to maintain towards the natural parents.
  • After, coming to the new family it will be considered as if the child was born in that new family only and not in any different family.
  • The adoptee will acquire all rights, duties, and status of the adopting family.

Relevance of concept of adoption in present times

The concept of adoption has now been rendered completely secular. It is no longer based on religious and spiritual considerations. The very object of adoption under the old law was to extend the spiritual benefit to the father and to continue the lineage.

The secular objective was secondary but The Hindu Adoption and Maintenance Act has completely ignored the spiritual aspect and emphasized only the secular aspects. This becomes clear from the fact that the Act has permitted the adoption of a girl and that the ceremony of Datta Homam which is a ritual for taking in adoption is no longer necessary for adoption like ancient times.

Moreover, the powers of the Hindu females have been considerably increased as without the consent of the wife neither a child could be adopted nor could be given in adoption. This position is in sharp contradiction to the law existing before the commencement of the Act.

The Act has brought some changes of far-reaching consequences for a widow to adopt a child. In the present scheme the provisions of prior consent of the husband, as it existed in the old law have been done away with now or a maiden is very much eligible to adopt at her option.

Laws Related to adoption in India

The Hindu Adoption and Maintenance Act, 1956 deals with the legal procedure of adoption of a child in India. As per the Act, a Hindu does not merely mean a person that follows the Hindu religion but also includes other sub-religions of Hinduism such as Buddhists, Jains, Sikhs, Virashaiva, Lingayat, or members belonging to Arya Samaj. The followers of Brahmo-Samaj and Prarthana are also included in the definition of Hindu.

But, The Hindu Adoption and Maintenance Act, covers everyone residing in India except those who are Christian, Muslim, Parsi, or Jew.

In India, adoption is not permitted in the personal laws of Muslims, Christians, Parsis, or Jews. Hence, for adoption, they usually go for guardianship of a child through The Guardians and Wards Act, 1890.

About the Hindu Adoption and Maintenance Act, 1956

For adoption the act consists of:

  • What a valid adoption is?
  • Who can adopt children?
  • Who may be given adoption?
  • Who may be adopted?
  • Conditions for a valid adoption.
  • Effects of adoption.
  • Rights of adoptive parents to dispose of their properties

What a valid adoption is?

Section 6 of the Act states how adoption can be valid. No adoption shall be valid unless- The person adopting has the capacity and also the right to take in adoption; the person giving in adoption can do so; the person adopted is capable of being taken in adoption and the adoption is made in compliance with the other conditions mentioned in under section 11.

Who can adopt children?

Section 7 of the Act deals with the capacity of a male to take in the adoption of a child. It is essential that the male has attained the age of majority and is of sound mind which means the male person is free from any intoxication and is without any mental ailment. He must have a wife that is alive and her consent is necessary while adopting a child. The consent of the wife can be overlooked only if the wife is incapable of giving consent due to insanity, converted to another religion, or has renounced the world. In exceptional cases, if a person has multiple wives then the consent of all the wives is necessary for adoption.

Section 8 of the Act deals with the capacity of a female to take in adoption. Any female Hindu who is mentally sound; not a minor; and lastly who is unmarried. Though in the case of a married woman, she can only adopt, if her marriage has been dissolved or the husband has died, or has completely and finally renounced the world, or has ceased to be a Hindu, or has been declared by the court of competent jurisdiction to be of unsound mind.

Who maybe given adoption?

Section 9 deals with who may be given adoption. In the context of a father as well as for a mother, there are certain criteria that are essential to fulfil to give in adoption. They are stated as follows:-

  • Father: Father cannot give the child in adoption without the consent of the mother until and unless-
    • She has renounced the world; or
    • She has ceased to be a Hindu; or
    • She has been judicially declared to be of an unsound mind; or
    • The marriage has been dissolved.

The word “father” stated here does not include Adoptive father, Putative Father, and Step-Father. Now, if the father has ceased to be a Hindu, the power of giving the child in adoption goes to the mother. The mother does not need to take the consent of the father before giving the child in adoption.

  • Mother: The mother cannot give the child in adoption without the consent of the father until and unless-
    • He has renounced the world; or
    • He has ceased to be a Hindu; or
    • He has been judicially declared to be of unsound mind.

The mother can give a child in adoption even if the father had expressed his consent before he died that she alone can decide about the upbringing of the child. The expression “mother” stated here does not include an Adoptive mother and Stepmother.

Though there are certain exceptions:

  1. A mother even after conversion can give the child in adoption.
  2. A mother even after her divorce can give the child in adoption.
  • Guardian: The expression “guardian” includes both “de-jure” and “de-facto” guardians. A de-facto guardian is a person who takes a continuous interest in the minor, his property, or both without any legal authority. De- facto guardians are not appointed by law. De-jure guardian is the one who is appointed by a court of law and can manage and administer the property of the minor with legal authority.

The guardian can give the child in adoption only under certain conditions which are as follows:-

  1. Both the parents died; or
  2. Both the parents had renounced the world; or
  3. Both the parents had been declared unsound mind judicially; or
  4. Both the parents have abandoned the child; or
  5. The parentage of the child is unknown.

Who maybe adopted?

Section 10 states about the people who may be adopted. The conditions or the essentials for the ones who may be adopted are as follows:-

  • He/she has to be a Hindu
  • He/she has not already been adopted
  • A Married person cannot be adopted unless customs allows doing so
  • Below (15) years of age unless customs allows doing so

Conditions for valid adoption

Section 11 states the other conditions for an adoption to be a valid one.

In every adoption, the following conditions must be complied with-

  1. If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu (son), grandson, great-grandson (whether by legitimate blood relationship or by adoption living at the time of adoption).
  2. If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or granddaughter (whether by legitimate blood relationship or by adoption) living at the time of adoption.
  3. A male adopting a girl must have an age difference of 21 years.
  4. A female adopting a boy must have an age difference of 21 years.
  5. The same child may not be adopted simultaneously by two or more persons.
  6. The child to be adopted must have been given up for adoption as per the guidelines of this act, by their biological parents or guardians

Effects of Adoption

Section 12 of the Act states that they shall be considered as the child of their adoptive parents for all purposes. Secondly, the adoptive parents shall have all the parental obligations and rights. Thirdly, the child shall have all the rights and obligations of a son or daughter.

However, there are certain conditions mentioned in the act which the adoptee needs to abide by after adoption, such as,

Firstly, he/she must not have an incestuous relationship with anyone from his biological family and should not marry anyone from his family of birth. If any such situation arises then the rules of the Hindu Marriage Act, 1955 regarding “the Sapinda relationship” will be applicable to justify if the marriage is legitimate or void.

Secondly, if the adoptee had any property before the adoption, it shall continue to be in his possession even after being adopted. Moreover, such property may bring some obligations over the adoptee and hence would be liable to all those obligations, including having to maintain his biological family, if required.

Thirdly, the adoptee child shall not deprive any member of his birth family of any property that he held before the adoption.

Rights of the adoptive parents to dispose off their property

Section 13 of the act states that, if the adoptive parents have the desire to dispose of their properties by transfer by gift or will, they are free to do so. Adoption of the child does not act as a constraint until and unless there is an existing agreement that states the contrary.

Prohibition of certain actions stated for adoption under this act

Section 17 of the Act states prohibition of certain payments as-

“If the giver and taker of the child during adoption exchanges money against the child then it becomes a punishable offence. The punishment for such offence is 6 months (minimum) imprisonment, Fine, or both imprisonment and fine.”

Conclusion

Adoption is a boon for the ones who unfortunately didn’t get the opportunity to know what a pleasure being among family members is and also what a blessing are parents in life. Adoption acts as a means for birth parents even when they see their child has been brought up well and has consistent knowledge of their well-being. When people are not capable to be parent, adoption provides them the option to maintain a relationship with their child instead of having to choose any other alternative. Thus, adoption brings happiness to those kids who were abandoned or orphaned.

Child adoption laws
This article has been written by Akansha Chakraborty. She is first year LLB student at Gauhati University

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