Author: Sanskruti Kunjir, Balaji Law College, Affiliated with Savitibai Phule Pune University, Pune
To the Point
In India, adoption is governed by the Hindu Adoption and Maintenance Act, 1956 (HAMA), and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). The HAMA provides for the adoption of children by Hindus, Buddhists, Jains, and Sikhs, while the JJ Act regulates the adoption of children by non-Hindus and provides for the care and protection of children in need of care and protection. The JJ Act applies universally, especially concerning orphans, abandoned, and surrendered children. Central Adoption Resource Authority (CARA) is the nodal body overseeing inter-country and in-country adoptions. Despite progressive legislation, challenges persist, including bureaucratic delays, limited availability of adoptable children, and the need for stricter enforcement of regulations.
Use of Legal Jargon
HAMA (Hindu Adoption and Maintenance Act, 1956): A statute allowing Hindus, Buddhists, Jains, and Sikhs to adopt.
JJ Act (Juvenile Justice (Care and Protection of Children) Act, 2015): Comprehensive legislation for children in need of care and protection, including adoption.
CARA (Central Adoption Resource Authority): Statutory body regulating and monitoring adoptions in India.
Prospective Adoptive Parents (PAPs): Individuals or couples seeking to adopt a child.
Child Welfare Committee (CWC): A body constituted under the JJ Act to deal with issues concerning children in need of care and protection.
District Child Protection Unit (DCPU): District-level agency implementing child protection schemes.
Inter-country adoption: Adoption of an Indian child by foreign nationals.
In-country adoption: Adoption of a child by Indian citizens residing in India.
Free for adoption: a child which is legally cleared to be adopted.
Best interest of the child: The paramount consideration in all adoption-related decisions.
The Proof
Despite the existence of these laws, the adoption process in India is often plagued by delays, corruption, and bureaucratic red tape. According to the Central Adoption Resource Authority (CARA), the average time taken for adoption is around 2-3 years, which can be traumatic for the child and the adoptive parents.
Moreover, the JJ Act has been criticized for its cumbersome and lengthy adoption process, which can lead to children languishing in institutions for extended periods. Furthermore, the Act’s emphasis on institutional care over foster care and adoption has been questioned by experts, who argue that institutional care can be detrimental to a child’s physical, emotional, and psychological well-being.
Reforms are necessary to address these challenges and ensure a smooth and efficient adoption process. One possible solution is to simplify the adoption process and reduce the number of authorities involved. This can be achieved by introducing a single-window clearance system, which would enable prospective adoptive parents to navigate the adoption process more easily.
Additionally, the government should invest in strengthening the foster care system, which can provide a more nurturing and supportive environment for children in need of care and protection. This can be achieved by providing training and support to foster parents, as well as ensuring that they receive adequate financial assistance to care for the children.
Abstract
Adoption laws in India are governed by the Hindu Adoption and Maintenance Act, 1956, and the Juvenile Justice (Care and Protection of Children) Act, 2015. Despite the existence of these laws, the adoption process in India is often plagued by delays, corruption, and bureaucratic red tape. Reforms are necessary to address these challenges and ensure a smooth and efficient adoption process. This article argues that simplifying the adoption process, reducing the number of authorities involved, and strengthening the foster care system can help to achieve this goal.
Case Laws
Lakshmi Kant Pandey vs. Union of India (1984): The Supreme Court held that the adoption of a child by a Hindu couple is governed by the Hindu Adoption and Maintenance Act, 1956. This landmark case led to the establishment of guidelines for inter-country adoptions, emphasizing the need for stringent safeguards to prevent exploitation. This case was instrumental in the creation of CARA.
Vishal Jeet vs. Union of India (2016): The Supreme Court directed the Central Government to frame rules for the adoption of children by non-Hindus under the Juvenile Justice (Care and Protection of Children) Act, 2015.
Shabnam Hashmi v. Union of India (2014): The Supreme Court clarified that the JJ Act, 2000 (predecessor to the 2015 Act), is a secular legislation applicable to all citizens, irrespective of religious affiliation. This case expanded the scope of adoption rights.
Githa Hariharan v. Reserve Bank of India (1999): While not directly related to adoption, this case established the principle of gender equality in guardianship, which has implications for adoption processes. It set a precedent for challenging discriminatory personal laws.
Anokha v. State of Rajasthan and Another (2004): This case highlighted the importance of procedural compliance in adoption cases and emphasized the need for thorough investigations to ensure the child’s welfare.
Conclusion
Indian adoption laws have evolved significantly, but challenges remain. Streamlining processes, enhancing infrastructure, and addressing social stigma are crucial for improving the efficiency and effectiveness of the adoption system. Greater awareness and sensitivity toward the needs of adopted children and PAPs are essential. Reforms should focus on reducing bureaucratic delays, increasing the availability of legally free children, and strengthening monitoring mechanisms. The ultimate goal is to create a child-centric system that prioritizes the “best interest of the child” and provides a stable and loving home for every child in need.
FAQS
Q: What are the laws governing adoption in India?
A: The Hindu Adoption and Maintenance Act, 1956, and the Juvenile Justice (Care and Protection of Children) Act, 2015.
Q: Who is CARA, and what is its role?
A: CARA (Central Adoption Resource Authority) is a statutory body under the Ministry of Women and Child Development. It regulates and monitors in-country and inter-country adoptions.
Q: What is the average time taken for adoption in India?
A: According to CARA, the average time taken for adoption is around 2-3 years.
Q: What are the challenges faced by prospective adoptive parents in India?
A: Delays, corruption, and bureaucratic red tape are some of the challenges faced by prospective adoptive parents in India.
Q: Who can adopt a child in India?
A: Eligibility criteria vary, but generally, PAPs must be physically, mentally, and financially capable of providing a stable environment. Specific rules apply to single parents and foreign nationals.
Q: What is the difference between HAMA and the JJ Act?
A: HAMA applies to Hindus, Buddhists, Jains, and Sikhs, while the JJ Act applies to all children in need of care and protection, regardless of religion.
Q: What are the steps of the adoption process in India?
A: Registration with CARA, home study report, matching with a child, acceptance, and court order.
Q: What is inter-country adoption?
A: Adoption of a child from India by foreign nationals or Overseas Citizens of India (OCI).
Q: What is in-country adoption?
A: Adoption of a child by Indian citizens residing in India.
Q: Where can I find more information about adoption in India?
A: The CARA website (cara.nic.in) is the primary source of information.
References
– Hindu Adoption and Maintenance Act, 1956
– Juvenile Justice (Care and Protection of Children) Act, 2015
– Central Adoption Resource Authority (CARA)
– Lakshmi Kant Pandey vs. Union of India (1984)
– Vishal Jeet vs. Union of India (2016)
– Shabnam Hashmi v. Union of India (2014)
– Githa Hariharan v. Reserve Bank of India (1999)
– Anokha v. State of Rajasthan and Another (2004)
