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Adoption laws in India

Updated: Feb 20, 2022

Written by - Ridhi Saxena.

Contents

Introduction

Hindu adoption and maintenance Act 1956

Who can adopt?

Who can be adopted?

Other valid condition for adoption

Guardian and wards act 1890

Juvenile justice (care and protection of children) act 2015

Conclusion


Introduction

Adoption is a very common practice; we all have heard about it. It is even a part of history and now it is legalized. Adoption is a practice of giving child the parents and providing the parents with child, this practice gives many a family they are deprived of and a fulfilled life. There are various acts which govern the laws for adoption. It can be intra country and inter country. It is a kind of blessing for the couples who cannot conceive and for the child who are homeless. It is a Ray of hope for many families.

Previously in India adoption was only available to the Hindu community, Hindu adoption and maintenance act 1956 facilitates a Hindu person to adopt a child. Other religions like Christian, Parsis, and Muslim cannot adopt a child legally but can be guardian of a child governing under the guardian and wards act 1890. At present juvenile justice (care and protection) Amendment Act 2015 provide us a secular act for adoption by this act any religion can adopt a child.

In this article we are going to discuss about all the acts which govern adoption in India and all the requirements to adopt a child within those acts.


Hindu adoption and maintenance Act 1956

Hindu adoption and maintenance act 1956 was enacted by the parliament on 21st December 1956 this act allows all the Hindus to adopt a child[i]. This act is applicable to persons

· Who is Hindu by the religion in any forms including a virashaiva, Lingayat or a follower of the Brahma, Arya or prathna samaj.

· To any person who is Buddhist, Jain or Sikh by religion

· To other person who is not Muslim, parsi, Christian or Jew by religion.

The explanation for the states that the child whether illegitimate or legitimate both of whose parents come under these categories or one of their parents belong to these categories or who has been abandoned by their parents or their parentage is not known but brought up as these categories or any person who is convert or reconvert to these.


Who can adopt?

· Capacity of a male Hindu to take in adoption- under section 7 of this act any male Hindu who is of sound mind and not a minor has the capacity to take son or daughter in adoption. Provided if he has a wife living then there should be consent of his wife unless she has finally announced the world or cease to be Hindu or has been declared of unsound mind by the court.[ii]

· Capacity of female Hindu to take in adoption- female Hindu who is of sound mind and has completed the age of 18 can also adopted son or daughter to herself and in her own right female Hindu who is unmarried or widow or divorcee can also adopt to herself on a on right, provided that she has no Hindu daughter or son’s daughter living at the time of adoption. A married woman can only adopt a child when husband renounced the world or ceased to be Hindu or declared as of unsound mind.

· No person except father and mother of the guardian of a child shall have a capacity to give child in adoption.[iii]


Who can be adopted?

According to section 10 of this act any person who is Hindu has not already been adopted, has not been married unless there is custom or usage and has not completed the age of 15 years unless there is a custom or usage.

Other valid condition for adoption

· The adoptive parents cannot adopt child of same sex in case they already have a child or son's child. For example, if adoptive parents already have a son or son's son then they can only adopt a girl child.

· An unmarried male and female can adopt a female and male respectively only when the difference between adoptive parent and adopted child age is of at least 21 years.

· The same child may not be adopted simultaneously buy 2 or more persons and the child to be adopted must be actually given and taken in adoption.

Once such child gets adopted, he/she have the same rights as of the actual child even in the property.


Guardian and wards act 1890

The guardian and wards act 1890 comes for non-Hindu couples who wish to adopt a child. The act allows guardianship but does not allow adoption completely and does make the child award and interested couple as their guardian.

The main provision under this Act are-

· It is applicable to all children with no restriction to race caste or Creed.

· Guardian and wards act 1890 doesn't grant a child the equal status as of biological child it only grants the guardian and ward relationship.

· In this act guardianship is only allowed till the child is minor once he/she attends the age of 21 year this relationship lasts.

Under this act the child will not become their own child and thus do not take their name or inherit property by any kind of right. However, if adoptive parents want to give their property then they can give it by making the will but it can be challenged by any blood relative.

Unlike as in Hindu adoption and maintenance act here the child do not be considered as their biological child.


Juvenile justice (care and protection of children) act 2015

Adoption in inter countries is a new concept for India. Juvenile justice (care and protection of children) act 2015 provide for adoption in inter country and adoption as secular practice. Now by this act any religion can adopt a child and give rights as a biological parent.

· According to section 2(12) of juvenile justice (care and protection) act 2015 children can be adopted up to the age of 18 years[iv]

· According to section 56(1) couple or single parent can adopt a child.

· In case of couple adopting a child consent of both parents are very important.

· A single male cannot adopt a girl child

· No child can be given in adoption unless adoptive parents had completed 2 years of marriage.

· The age difference between adoptive parents and adopted child must be of minimum 25 years.

· Couples with 3 or more child shall not be considered for adoption except they are relative or step parent or in some special case.[v]

Unless Hindu adoption and maintenance act 1956 under this act registration is mandatory.


Conclusion

Adoption is more like a sacred practice. It gives a home and family to a homeless child and children to the parents. Government of India is continuously working on providing the children the home with all the safety measures. The process of adoption in India is time consuming and hard process as first of all they make sure that the adopted child is going in the right hands.

As now we have a secular act for adoption in India all the religions are allowed to adopt the child. However, the rate of adoption in India is still very low.

[i] Hindu adoption and maintenance act, 1956(78 of 1956) s.1 [ii] Hindu adoption and maintenance act 1956(78 of 1956) s.7 [iii] Hindu adoption and maintenance act 1956(78 of 1956) s.9 [iv] The juvenile justice (care and protection of children) act 2015 (no.2 of 2016) s.2(12) [v] Role of judiciary and court procedure for adoption- CARA cara.nic.in

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