ADOPTION

In the partial fulfillment of marking scheme of B.A.LL.B. (5th semester)

Submitted To: Submitted By:Shvet Sharma

MS:ANNU KUNDU BA.LLB 5th –SEM

Geeta Institute Of Law , Karhansh , Panipat

Introduction

Adopting a child is considered a good deed performed by humans. Generally, Adoption means to
willfully adopt a Child and treat him like one’s own Child. In Hindu law, the different provisions
with respect to Adoption are given but in other personal laws like Muslim law, Christian Law,
Parsis Law, no separate laws are given so they have to approach the court for adoption under the
Guardians and Wards Act, 1890.

What is Legal Adoption?

According to the Juvenile Justice (Care and Protection of Children) change Act, 2006, once a
child is separated from his biological parents for good and becomes a legitimate child of his
adoptive parents he gets all the rights that are related to biological parents.

If a Foreigner wants to adopt an Indian Child then he has to approach the court under the
Guardian and Wards Act, 1890 and if they want to take the Indian Child out of the Country the
adoption should be done as per Foreign Laws.

While under the Hindu Minority and Guardianship Act, 1956, the Guardian should be Natural
Guardian or Guardian appointed by the Court. Natural Guardian for both the Boys and the
Unmarried Girls is first the father and then the mother. Under Muslim Law, the father has a
dominant position.

Adoption under Hindu Law

As per Hindu Shastra, it is believed that the adopted son is a reflection of the natural son of
Adoptive Parents. This helps in guaranteeing the protection and care of the adopted son. Once a
child for good is separated from his biological parents and becomes a legitimate child of his
adoptive parents, he has all the rights that are related to adoptive parents. This means the
adoptive child cannot marry the other adoptive child or real child of his adoptive parents.
Who is allowed to Adopt a Child?

A married or unmarried male, a married or unmarried female, NRI may adopt a child.

Under the Hindu Adoption and Maintenance Act, 1956

Any male Hindu, having a sound mind, a major, and is eligible for adopting a child can adopt a
child. If the male Hindu is married and wants to adopt a child he has to take the consent of his
wife as well before adoption, and the consent should be free.

Any Female Hindu, having a sound mind, a major, and is eligible for adopting a child can adopt
a child. If the Female Hindu is married and wants to adopt a child she has to take the consent of
her husband as well before adoption, and the consent should be free.

Conditions for adoption by Hindu couples or single parent

1. When a Hindu male or a Female want to adopt a son, they should not have a son
living whether legitimate or illegitimate, at the time of adoption.

2. When a male or a Female Hindu want to adopt a daughter, they should not have a
daughter or son’s daughter living at the time of adoption.

3. If a male wants to adopt a daughter, he should be at least 21 years older than the
adoptive daughter.

4. If a Female wants to adopt a son, she should be at least 21 years older than the
adoptive son.
In personal laws like Muslim Law, Christian Law, Paris Law, the condition for a valid Adoption
are not at all given so if they have to adopt a child they can adopt as per the Guardians and
Wards Act. But according to the adoption under the Guardians and Wards Act, the person
becomes a guardian of the child and not the adoptive parent. And when a child becomes 21 he
will be treated as an individual entity.
In Mohammed Khan v. Muhammad Ismail

In this case, it was held that, if a Muslim person has a desire to adopt a child he can do so by
applying under the Guardians and Wards Act.

In Hindu law, the different provisions with respect to Adoption are given but in personal laws
like Muslim law, Christian Law, Parsis Law, no separate laws are given so they have to approach
the court for adoption under the Guardians and Wards Act, 1890.

Intercountry adoption

In India, the adoption of an Indian Child by a foreign citizen or NRI has been covered under the
Guidelines i.e. Adoption of Children, 2015. These guidelines are made to stop the misuse or
illegal use of children through adoption. As per the Supreme Court, a foreigner can adopt an
Indian child before the age of 3 years. In the absence of any concrete act on intercountry
adoption, the provisions of Guardians and Wards Act, 1890 will be followed for adoption.

If a person wants to adopt an abused, surrendered child, that kind of intercountry adoption can be
done as per the Juvenile Justice (Care and Protection of Children) Act, 2015.

But the Guardians and Wards Act, 1890 does not have any provision regarding the adoption of
orphans, abandoned child. Section 58 of this Juvenile Justice (Care and Protection of Children)
Act defines that any Indian citizen of India, irrespective of their religion if someone is interested
to adopt an orphan or abandoned or surrendered child, he/she have to apply for the same to a
Specialised Adoption Agency(SAA).

Section 57 under the Juvenile Justice (Care and Protection of Children) Act tells about the
eligibility of prospective adoptive parents. As per Section 57 of Juvenile Justice (Care and
Protection of Children) Act, the adoptive parents should be physically fit, financially sound,
mentally alert and highly motivated to adopt a child for providing hi/her a good upbringing and
both partners must consent for the adoption.
Who can be Adopted?

According to Hindu Law, any child can be adopted as per some conditions:

1. The child should be Hindu.

2. The child is not adopted before.

3. The age of the child is below 15 years.

4. The child should not be married.

As per the Guardians and Wards Act, 1890 any child can be adopted as per some conditions:

1. The child is not Hindu

2. The child should be minor

3. An orphan or abandoned or surrendered child.

What is the necessary procedure to Adopt a Child?

1. As per the Hindu Adoption and Maintenance Act, 1956 if the party is willing to adopt
a child they have to make an application to a child welfare agency. The registration of
adoptive parents and child can be done by the agency certified by the Central
Adoption Resource Authority in New Delhi.

2. The next step is, the registered agent will conduct an interview of the Adoptive
parents in order to understand their intention behind the Adoption.

3. When the adoptive couple decides which child they want to adopt they have to file the
petition under the act and the court starts the hearings.

4. Last, the court will pass a decree and the adoption is finalized.
Under The Guardianship and Wards Act, 1890 if the party is willing to adopt a child they have
to file an application to the court and has to disclose their intention i.e. why they want to adopt a
child. The court will give a date and on that date, a hearing will be placed. The adoptive couple
tells the court about the child they want to adopt. Last, the court will pass a decree and the
adoption is finalized.

As per the Guardians and Wards Act, 1890 any child can be adopted as per the following
conditions:

1. The child is not Hindu

2. The child should be minor

3. An orphan or abandoned or surrendered child.

4. The child should be below 18 years of age

There is a directive that adoption proceedings have to be completed within two hearings, and the
petition has to be disposed of within two months of the filing of the petition. The certified copy
of the order has to be obtained by the agency within 10 days. The agency must also obtain the
birth certificate of the child, with the names of the adoptive parents.

Other Aspects of Adoption

How much time does the entire procedure take?

Adopting a child in India is a long process. Earlier, parents who wished to adopt would go to the
nearest agency and register. The agency would match the preferences of the couple with the
children available. The match may or may not happen, and would take months, even years. Now,
all adoption agencies have to upload details and the Central Adoption Resource Authority
(CARA) software will match preferences across the country. This has lessened the duration of an
adoption.
What will be the age of the child a person can adopt?

1. As per the Hindu Adoption and Maintenance Act, the child who completes the age of
years is not entitled to be given under adoption unless the party i.e. the adoptive
couple’s custom allows them to do so. If the custom allows adopting a child who
complete years of age then that adoption can be valid.

2. But As per the Guardians and Wards Act, the child who is below 18 years of age can
be adopted.

Can a person specify the gender of the child he/she wants to adopt?

An adoptive couple has a right to specify the gender of the child, and can also specify the colour
of the skin, the religion of the child and then decide which child they want to adopt.

Can a person adopt a child if he already has one?

The adoptive couple can adopt a child if they already have one. The condition is based on the
gender of the child. Under the Hindu Adoption and Maintenance Act, the Hindu can adopt a
child of different gender if they already have one child.

Illustration

Situation 1: If A and B already have a male child, and want to adopt a girl child then they can
adopt as per provision under the Hindu Adoption and Maintenance Act.

Situation 2: If A and B already have a male child, and want to adopt a male child then they
cannot adopt as per provision under the Hindu Adoption and Maintenance Act.

The Guardians And Ward Act (GWA), 1860

In Hindu law, the different provisions with respect to Adoption are given but in personal laws
like Muslim law, Christian Law, Parsis Law, no separate laws are given so they have to approach
the court for adoption under the Guardians and Wards Act, 1890.

Under The Guardianship and Wards Act, 1890 if the party is willing to adopt a child they have
to file an application to the court and has to disclose their intention i.e. why they want to adopt a
child. The court will give a date and on that date, a hearing will be placed. The adoptive couple
decide tells the court about the child they want to adopt. Last, the court will pass a decree and the
adoption is finalized.

As per the Guardians and Wards Act, 1890 any child can be adopted as per some conditions:

1. The child is not Hindu

2. The child should be minor

3. An orphan or abandoned or surrendered child.

4. The child should be below 18 years of age

There is a directive that adoption proceedings have to be completed within two hearings, and the
petition has to be disposed of within two months of the filing of the petition. The certified copy
of the order has to be obtained by the agency within 10 days. The agency must also obtain the
birth certificate of the child, with the names of the adoptive parents.

Conclusion

Adopting a child is considered a good deed performed by humans. Generally, Adoption means
willfully adopt a Child and treated like one’s own Child. In Hindu law, the different provisions
with respect to Adoption are given but in personal laws like Muslim law, Christian Law, Parsis
Law, no separate laws are given so they have to approach the court for adoption under the
Guardians and Wards Act, 1890.
Once a child for good is separated from his biological parents and become a legitimate child of
his adoptive parents and have all the rights that are related to adoptive parents. This means the
adoptive child cannot marry other the adoptive child or real child of his adoptive parents, In the
modern adoption laws, Adopting a child is considered a good deed performed by humans.
Generally, Adoption means willfully adopt a Child and treated like one’s own Child.

But the Guardians and Wards Act, 1890 does not have any provision regarding the adoption of
orphans, abandoned child. Section 58 of this Juvenile Justice (Care and Protection of Children)
Act defines that any Indian citizen of India, irrespective of their religion, if interested to adopt an
orphan or abandoned or surrendered child, may apply for the same to a Specialised Adoption
Agency, in the manner as provided in the adoption regulations framed by the Authority.

References

^ Barbara Melosh, the American Way of Adoption Archived 1 September 2018 at the Wayback
Machine page 10

^ Code of Hammurabi

^ Codex Justinianus

^ Jump up to:a b Brodzinsky and Schecter (editors), The Psychology of Adoption, 1990, page 274

^ H. David Kirk, Adoptive Kinship: A Modern Institution in Need of Reform, 1985, page xiv.

^ Jump up to:a b Mary Kathleen Benet, The Politics of Adoption, 1976, page 14

^ John Boswell, The Kindness of Strangers, 1998, page 74, 115

^ John Boswell, The Kindness of Strangers, 1998, page 62-63

^ W. Scheidel, The Roman Slave Supply, May 2007, page 10

^ John Boswell, The Kindness of Strangers, 1998, page 3

^ John Boswell, The Kindness of Strangers, 1998, page 53-95

^ A. Tiwari, The Hindu Law of Adoption, Central Indian Law Quarterly, Vol 18,
2005 Archived 5 February 2009 at the Wayback Machine