Adoption Under Different Laws In India

Adoption Under Different Laws in India

“The bond that links your true family is not one of blood, but of respect and joy in each other’s life.”

Richard Bach

Adoption is a vital institution in our society. It is the legal process of constructing a parent child relationship between individuals who are not biologically related. The Hindu Adoption and Maintenance Act, 1956; Guardians and Wards Act, 1980; Juvenile Justice (Care and Protection of Children) Act, 2015 regulate adoption laws in India. It is the subject of ‘personal law’ where people who are Hindu, Buddhist, Jain or Sikh by religion can make a legal adoption. Because there are no separate adoption laws in India for Muslims, Christians and Parsis, hence they must seek formal adoption through Guardians and Wards Act, 1890. From informally adopting a male child for the purpose of performing final rites following the death of adopted parents to single women adopting daughters, India has undergone significant transformations.

The Government of India attempted to create a uniform law for adoption but weren’t successful. Adoption can serve a vital social purpose in our country, where there are several orphans, abandoned, disabled and underprivileged children. On the other hand, there are many people in India and overseas who do not have children. In most Western countries, one can adopt multiple children and not be childless, however under Hindu law, one is unable to adopt more than one son and one daughter. As a result, a new hypothesis, the child welfare theory, has arisen over time. The Hindu Adoption and Maintenance Act, 1956 governs adoption in Hindu law. This Act pertains to all Hindus, Buddhists, Jains and Sikhs, as well as everyone who is not a Muslim, Parsi, Jew or Christian. Adoption can be made by following people under this act:

Any male Hindu, who is of sound mind, not a minor, and is entitled to adopt a son or daughter; however, if the male has a living spouse at the time of adoption, his spouse’s agreement is required. Secondly, any female Hindu who is not married or whose marriage has been dissolved, or whose husband is deceased or has been pronounced incapable, can adopt a son or a daughter. If the family already has a biological child, the adoption of another child of the opposite sex is permitted. When a male child is adopted by a female, the female must be 21 years older than the son. In case of a male adopting a female child, the male must be at least 21 years older than the daughter. Also, the adopted children have same rights as biological children. Adoption under this Act is final and binding.

Under the Guardians and Wards Act, 1890 anyone who desires a child may become the child’s guardian until the youngster comes to 21 years of age. The Act, however, does not grant the guardian any adoption rights, and the only relationship that exists between the parents and the child is that of Guardian-Ward. Unlike the Hindu Adoption and Maintenance Act of 1956, this act does not grant the adopted child the status of biological child. Furthermore, the Indian Government is working to provide complete rights and welfare to children. Chapter III of the Indian Constitution establishes Fundamental Rights. One of these rights is guaranteed by Article 21, which states that ‘No person shall be deprived of his life or personal liberty except according to the procedure established by law.’ Article 24 – Fundamental Rights of Citizens provides the right against exploitation of children below 14 years. Article 39 clearly requires the State to direct its policies in order to establish a healthy environment for children and to ensure that necessary facilities are available. Also, under the Ministry of Social Justice and Empowerment, Central Adoption Resource Authority (CARA) is an autonomous body of the Indian Government. It was established on 20th June, 1990 to handle all aspects of adoption in India. Its role is to mandate and control both in-country and inter-country adoption of children in India. Under the rules of the Hague Convention on Inter-country adoption, 1993, ratified by the Government of India in 2003, CARA is appointed as the central authority to deal with inter-country adoptions. Through its affiliated adoption agencies, CARA primarily deals with adoption of orphaned, abandoned and surrendered children.

Adoption is a good cause that offers joy to children who have been abandoned or orphaned. This allows the humanitarian aspect of society to shine through. A uniform civil code in adoption laws will not infringe on religious freedom. It should be noted that Directive Principles of State Policy (DPSP) require the state to bring uniformity in laws.

References

http://www.penacclaims.com/wp-content/uploads/2020/06/Arundhati-Banerjee.pdf

http://docs.manupatra.in/newsline/articles/Upload/E8EFE493-114B-4E5B-A014-682EB1729301.pdf