Due to increasing rate of infertility across globe or other reasons such as single parent, no desires to have own children, many parents are left with no other option than to opt for adoption if having desires to have baby. However, Adoption process and understanding of different laws makes it herculean/cumbersome task for parents to opt for it.
Introduction
As per Black’s Law Dictionary “Adoption” shares the legal meaning of Adoption as “The taking and receiving as one’s own that to which he bore no prior relation, colorable or otherwise- The act of one who takes another’s child into his own family, treating him as his own, and giving him all the rights and duties of his own child”
Background of Adoption?
In India though there is no specific law of adoption, however it is guided and permitted by the statute. Having made Adoption a legal affiliation of a child, it forms the subject matter of personal law, Muslims Christians and Parsis have no specific adoption laws and have to approach the court having jurisdiction of area under the “Guardians and Wards Act 1890”. Muslims, Parsis and Christians can adopt the child under the said act considering Foster care.
Foster Care here defines the relationship that once the child gets majority he/she is free whether to be carry the relationship or move out free. Whereas, in such relationship (adoption) such child shall not get any legal right of inheritance. Even parents from other countries shall have to follow the same procedures as stated above and seek court guidance on movement of child to other country from India whereas child adoption shall be governed by respective host country’s laws.
Also Read: What are the Important Aspect in Divorce? 4 Important Factors to Decide?
Is Adoption legal in India?
The Guardians and Wards Act, 1890, Muslim Law, and Hindu Law are three different yet widely used legal systems. A guardian may be a court-appointed guardian, a testamentary guardian, or a natural guardian. The minor’s person and his possessions must be considered separately when considering who should be the minor’s guardian. The same person is frequently not trusted with both.
Hindu minority and guardianship legislation have been established in the Hindu Minority and Guardianship Act, 1956 (32 of 1956). It has affirmed the higher right of father, just like in the case of uncodified legislation. A child is defined as a minor up until the age of 18. The father is the boy’s natural guardian, followed by the mother for unmarried girls. Only for the custody of children under the age of five is the mother’s prior right recognised.
The mother has a stronger right in cases of illegitimate children than the presumed father. Guardianship implies control over both because the law treats the minor’s person and his possessions equally. The Act directs that in deciding the question of guardianship, courts must take the welfare of child as the paramount consideration.
What Muslim Law says about Adoption?
The father holds a dominant place in Muslim law. Additionally, it distinguishes between custody and guardianship. According to Sunnis, the father is preferable for guardianship, which typically refers to guardianship of property, and in his absence, his executor. The guardianship transfers to the paternal grandfather if the father did not name an executor.
Shias differ in that the father is considered to be the only guardian, but upon his passing, the grandpa, not the executor, has the authority to assume that role. However, both schools concur that father is the only guardian while he is still living. Even after the father has passed away, the mother is not acknowledged as the child’s natural guardian.
How Property Rights are Defined in Adoption?
There is no question that a father has both property rights and person rights when it comes to guardianship rights. Even though a mother has primary custody of a small kid, the father still has a broad right of control and supervision. Mother, however, may be named as a testamentary guardian by the father. Therefore, even if mother may not be considered the child’s natural guardian, there is no issue with her being named in the father’s will.
According to Islamic law, a mother’s right to custody of her minor children (Hizanat) is an unalienable privilege. She cannot be deprived of it even by her father. The only circumstance that can deny the mother of this right is misconduct. The Shia school maintains that a mother’s claim to custody expires after a child reaches a certain age.
How Adoption is Defined under The Guardians and Wards Act, 1890?
The Guardians and Wards Act, 1890, contains the general law governing guardians and wards. It stipulates unequivocally that the father’s right is paramount and that nobody else may be chosen unless the father is deemed unfit. Additionally, this Act stipulates that when appointing a guardian under the Act, the court must consider the child’s welfare.
Is Adoption legal in Hindu Law?
Shastric Hindu Law regarded adoption more as a sacramental than a secular act. Some judges believe that adoption serves two purposes: 1) to ensure that one’s funeral rites are carried out, and 2) to preserve one’s lineage[1]. Hindus thought that a father could only be spared from Poota by producing a son, and that if a mother died without having a son, she would go to a location in hell called Poota. This was one of the explanations for having a son. In the ancient Hindu Shastras, Dattaka and Kritrima were seen as two separate kinds of sons.
According to the Hindu Shastras, the adopted son ought to reflect the original son. This ensured the adopted son’s safety and welfare. He became more than just the adoptive parents; he also created all of the paternal and maternal relatives in the adoptive family. This means that regardless of whether the daughter was adopted or born to them, he cannot wed her.
According to contemporary adoption legislation, the major goals of adoption are to comfort and relieve a childless individual and, on the other hand, to save the helpless, undesired, poor, or orphan child by giving it parents. However, it was determined in the Chandrashekhara case that the devolution of property is only of secondary significance and that the validity of an adoption must be determined by spiritual rather than temporal factors.
How Adoption is governed under Hindu Law?
Currently, the adoption under “Hindu Law” is governed by the “The Hindu Adoption And Maintenance Act, 1956
The Hindu Adoption and Maintenance Act of 1956 only applies to Hindus, who are defined as anyone who is a Hindu by religion, including a Virashaiva, a Lingayat, a follower of the Brahmo, Prarthana, or Arya Samaj, or a Buddhist, Jaina, or Sikh by religion, or to anyone else who is not a Muslim, Christian, Parsi, or Jew by religion. It also covers any child, genuine or not, who has been raised as a Hindu, Buddhist, Jaina, or Sikh despite having been abandoned by both parents or whose parentage is unknown.
Muslims, Christians, and Parsis do not acknowledge adoption, while Hindus do. The Hindu Adoptions Act regulates adoption among Hindus, and as of its passage, all adoptions must be done in compliance with it. On December 21st, 1956, it became law. Only males could be adopted before this Act, but it now allows for the adoption of females as well. With the exception of the state of Jammu and Kashmir, this Act applies to all of India. It applies to everyone who is not a Muslim, Christian, or Parsi by religion, including Hindus, Buddhists, Jainas, and Sikhs.
What are the Requirements For A Valid Adoption?
In the Hindu law the requirements for a valid adoption. The Act reads,
- No adoption is valid unless the person adopting is lawfully capable of taking in adoption
- The person giving in adoption is lawfully capable of giving in adoption
- The person adopted is lawfully capable of being taken in adoption
- The adoption is completed by an actual giving and taking and The ceremony called “Datta Homam” (oblation to the fire) has been performed.
(However this may not be essential in all cases as to the validity of adoption)
Who may Adopt and What are the Conditions?
How a Male can adopt ?
Any male Hindu
- Who is of sound mind
- Who is not a minor, has the capacity to take a son or daughter in adoption.
- Who is married and has a wife living, he shall not adopt except with the consent of his wife, unless his wife has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind. If a person has more than one wife living at the time of adoption the consent of all the wives is necessary unless the consent of one of them is unnecessary for any of the reasons specified in the preceding provision.
How a Female can adopt ?
Any female Hindu
- Who is of sound mind
- Who is not a minor
- Who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption.
- Where the woman is married it is the husband who has the right to take in adoption with the consent of the wife.
What are the Conditions to give Adoption and Who Can give adoption?
The person giving a child in adoption has the capacity/right to do so:
- No person except the father or mother or guardian of the child shall have the capacity to give the child in adoption.
- The father alone if he is alive shall have the right to give in adoption, but such right shall not be exercised except with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.
- The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.
- Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is unknown – the guardian of the child may give the child in adoption with the previous permission of the court. The court while granting permission shall be satisfied that the adoption is for the welfare of the child and due consideration will be given to the wishes of the child having regard for the age and understanding of the child.
The court shall be satisfied that no payment or reward in consideration of the adoption except as the court may sanction has been given or taken.
Who Can Be Adopted and What are the Conditions for such Adoption?
The person can be adopted or No person can be adopted unless
- He or She is a Hindu
- He or She has not already been adopted
- He or She has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption
- He or She has not completed the age of fifteen years unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.
What are the Conditions for Valid Adoption?
Other conditions for a valid adoption are fulfilled:
- If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son living at the time of adoption
- 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 son’s daughter living at the time of adoption;
- If the adoption is by a male and the person to be adopted is a male, the adoptive father is at least twenty-one years older than the person to be adopted
- If the adoption is by a female and the person to be adopted is a male, the adoptive mother s at least twenty-one years older than the person to be adopted
- The same child may not be adopted simultaneously by two or more parents; the child to be adopted must be actually given and taken in adoption with an intent to transfer the child from the family of birth.
The Guardian and Ward Act (GWA)
Jews, Christians, Parsis, and Muslims do not accept full adoption under their personal laws. People who want to adopt a kid must take the child into “guardianship” under the terms of The Guardian and Wards Act, 1890, as non-Hindus do not have an enabling law to do so.
However, this does not grant the child the same status as a child who was born into the family biologically. The child cannot legally become their own, acquire their name, or inherit their property, unlike a child adopted under the Hindu Adoption and Maintenance Act of 1956. Only a guardian-ward relationship is granted by this Act. This legal guardian-ward relationship is in place until the child turns 21.This legal guardian-ward relationship is in place until the child turns 21.
Foreigners who wish to adopt an Indian kid do so in accordance with this Act in order to acquire legal Guardianship of the child after assuring the court that they will adopt the child in accordance with local law within two years of the child’s arrival in their country.
Is Adoption under Muslim Law legal?
A son is adopted when his biological parents give him to his adoptive parents as a gift, removing him from the family he was born into. Adoption is not acknowledged in Islam. It was determined in Mohammed Allahabad Khan v. Mohammad Ismail that there is nothing in Mohammedan Law that is comparable to adoption as it is acknowledged in the Hindu System. According to Islamic law, acknowledging fatherhood is the closest thing to adoption.
The key distinction between the two is that while one of the requirements for acknowledgement is that the acknowledgeee must not be the known son of another, this is not true of adoption, where the adoptee is the known son of another person.
Is Adoption under Parsis And Christian Law legal?
Although adoption is not recognised by these communities’ personal laws, it is nevertheless possible to adopt from an orphanage in these areas with the court’s approval thanks to the Guardians and Wards Act. In contrast, there is no adoption law in Christian Communities.
Since adoption constitutes a child’s legal affiliation, it falls under the purview of personal law. Because there are no adoption rules for Christians, they must apply to the court under the Guardians and Wards Act of 1890. The necessity for a consistent adoption law has been emphasized by the National Commission on Women. Only foster care is permitted under the aforementioned Act for Christians to adopt children. When a minor in foster care reaches adulthood, he is free to cut all ties.
The Guardians and Wards Act, 1890, contains the general law governing guardians and wards. It stipulates unequivocally that the father’s right is paramount and that nobody else may be chosen unless the father is deemed unfit. Additionally, this Act stipulates that when appointing a guardian under the Act, the court must consider the child’s welfare.
Without a sure, it’s a win-win situation because it joins two ropes, one for the couple that needs a kid and the other for the orphans who, after losing loved ones, need a place to live and parents.
According to “Bal Swaraj,” Maharashtra has been the state most severely hit by the Covid wave, with 7,084 children losing a parent, being abandoned, or becoming orphans since April 1 of last year. Other states where children are most affected, according to the NCPCR‘s affidavit submitted in the suo motu case taken up by the top court, include Uttar Pradesh (3,172), Rajasthan (2,482), Haryana (2,438), Madhya Pradesh (2,243), Andhra Pradesh (2,089), Kerala (2,002), Bihar (1,634), and Odisha (1,073).
According to the report, out of the 7,084 total children in Maharashtra, 6,865 have lost one parent, 217 are orphans, and two have been abandoned. Madhya Pradesh tops the list with 226 abandoned children.
Conclusion:
Making adoption laws simple while also enforcing strict controls to prevent their abuse has evolved through time into a necessity and requirement of society. It is necessary from both the child’s perspective—who is living in an institution without any social connections to the outside world—and the perspective of the childless parents, who have given up all hope. The Indian government has been continuously attempting to improve rules and make them more lenient so that parents don’t have to wait too long to adopt their child.
Disclaimer:
The views expressed in the blogs are purely the authors’ own, and they are not intended to offend anyone or to be prejudicial toward or against any individual, group of individuals, society, sex, gender, race, creed, nation, or religion, or any other term that is even remotely and closely connected.
Legal-Varta is a platform for disseminating knowledge so that everyone can comprehend the legal system better. In order to avoid any misrepresentation and since it is even not advisable to do so, only content that is directly related to the Law and Statute is included in the articles. If any misrepresentation is discovered, however, we are willing to amend it because it is only for everyone’s advantage.
End Notes:
1. Inder Singh v. Kartar Singh (AIR 1966 Punj. 258), as cited in Paras
Diwan, Family Law, (Allahabad Law Agency, Faridabad, Seventh Edition 2005), p. 307
2. Chandrashekhara Mudaliar v. Kulandaiveluo Mudaliar (AIR 1963 SC 185), as cited in B.M. Gandhi, Hindu Law, (Eastern Law Book Company, Lucknow, Second Edition 2003), p. 339.