Conditions and Effects of Adoption in India

Abstract

This article is written by Pooja Lakshmi (l19blb076@bennett.edu.in), studying BBA-LLB at Bennett University, Greater Noida. The fixed legal transfer of all parental rights from one person to another or couple is called adoption. Adoption is considered a sacramental act, and it is a very disappointing state that these children become victims of sexual violence and human trafficking cases in some cases. In contrast, in many other cases, children are taken to an adoption agency by luck, and they may hope for a better life while waiting to be adopted. This article is a summary of the conditions and effects of the adoption of both parents and children.

Introduction

Adopting a child is an act of bringing in a stranger in the family by creating filial consanguinity with the family. Making an adoption leads to the snapping of the relations from the child’s family of birth and creating similar homogenous relations in the family of adoption.

The custom and implementation of Adoption in India date back to prehistoric times as per the texts of Vasishtha and Baudtaayana, like old texts that confer the adopted son’s right to inherit in the family of adoption. Daya – Bhaga recognizes an adopted son in the list of heirs. However, the aim with which the act is carried has differed, and now the act of adoption still remains unchanged.

Children are considered to be a cluster of joy, and the future of our world depends on them. Meanwhile, children born in India are being taken care of, pampered, and given all the necessities for their all-round development, whereas on the other hand, more than 60,000 children are being abandoned per annum in India. Adoption is not permitted in India according to the personal laws of Muslim, Christian, Parsi’s, and Jews; instead, they choose guardianship of a child through the Guardianship and Wards Act 1890.

There is no variation between the rights of adoptive parents or the biological parents, and an adopted child has all of the social, legal, emotional, and relationship benefits of biological children. Citizens of India who are Jains, Sikhs, Hindus, or Buddhists are allowed to traditionally adopt a child by The Hindu Adoption and Maintenance Act of 1956. Few reforms brought to ease the institution of adoption and restrictions have changed over time.

The adoptive parents can not ask to adopt a particular child. In case of preferences for a specified, adoption may take longer to match the needs (which include skin color, age like preferences), thus reducing the pool of kids available for adoption.

The Hindu Adoption and Maintenance Act, 1956

Every Hindu can do an adoption from the time of attaining the age of consent and are of sound mind. This act brings a fair play by removing gender-based bias or discriminatory factors by reflecting equality and social justice principles.

S.6 to S.11 of the Hindu Adoption and Maintenance Act (HAMA) clearly states the necessary conditions for a valid adoption. Section 7 and Section 8 of the act states the capacity of a male and female Hindu to take in adoption. Section 9 of the act specially mentions the person capable of giving in adoption very clearly. Section 10 states the specifics of a person who can be adopted. Section 11 states various conditions for a valid adoption. Section 12 states the effects of adoption and under Hindu law (both old and new) as the child’s adoption means that the child is deracinated from the natural-born family and transplanted to a new family. Section 13 states the right of adoptive parents to dispose of their properties, which says that an adoption does not require the adoptive father or mother of the power to dispose of their property by any means. Section 15 states that valid adoption cannot be canceled, and thus, no adoption that has been made validly can be canceled by the adoptive parents or any other person. Moreover, the child cannot renounce his or her status and return to the family of his or her birth. Section 16 states the presumption as to registered documents relating to adoption, which thereby explains that any document registered under any law for the time being in force is produced before any court to record an adoption made and is signed by the person giving and taking the child in adoption. In this case, the court shall presume that the adoption has been made in compliance with this act’s provisions until it is disproved. Section 17 prohibits any payment or other rewards in consideration of any person’s adoption, and no person shall give or agree to give any other person any payment or reward.

Guardian and Wards Act, 1890

Hindu Adoption and Maintenance Act covers the guidelines for the Hindu society. There was a need to make a law that was sensitive to other religion’s privacy laws that were not mentioned under the Hindu Adoption and Maintenance Act 1956, leading to the rise of the Guardians and Wards Act of 1890 .

The Guardian Wards Act, 1890, was the sole non-religious universal law regarding a kid’s guardianship and applied to every state in India except Jammu and Kashmir. This law is mainly applicable for Muslims, Christians, Parsi’s, and Jews because their laws do not permit full adoption. It is applied to every child regardless of race or creed.

Eligibility to adopt child in India

The nodal agency to monitor and regulate in-country and intra-country adoption is the Central Adoption Resource Authority (CARA). It is a part of the Ministry of Women and child care.The following are certain essential conditions in order to be eligible to adopt a child:

Any orphan surrendered, or neglected child is legally declared free for adoption by the child welfare committee as per the guidelines given by the Central Government of India.
A child without a guardian or legal parent is called an orphan; inclusive, they cannot take care of themselves.
When the child is unaccompanied by parents or guardians, the child welfare committee has declared them abandoned.
Renounce on account of social, physical, and emotional factors that are beyond the control of parents or guardians is regarded as a surrendered child as declared by the child welfare committee.
In the case of adoption, a child requires to be “legally free.” A child is observed to be legally free if even after trying level best, the police fail to find the birth parent or guardian of the child.

Conditions to adopt a child in India

The adoptive parents need to be physically, mentally, financially, and emotionally stable. They should not be suffering from any life-threatening diseases.
Couples with three or more children are forbidden from adoption unless it has a valid reason.
A single female is allowed to adopt a child of any gender, whereas a single male is restricted from adopting a girl child.
The age limit of a single parent should be less than 55 years.
In the case of a couple, the cumulative age should not exceed 110 yrs.
On the date of registration, parents’ age should be as per the guidelines of CARA.

Steps to adopt a child in India

REGISTRATION – Adoptive parents must register with an authorized agency where the social workers will explain the process and complete the legal formalities, paperwork, and general preparation required for registration.
HOME STUDY AND COUNSELLING – The registration agency’s social worker visits the house of the adoptive parents to do a home study. The agency needs to make the adoptive parents attend counseling sessions to understand the preparation strengths, motivation, and weaknesses of the adoptive parents. The home study is to be completed within three months from the registration date and can only proceed to the counseling session.
REFERRAL OF THE CHILD – The agency shall adumbrate the interested couple when there is a child ready for adoption along with the medical reports, physical examination reports, and other relevant information with the couple. When the couple is comfortable with the details shared, they are given some time to spend with the child.
ACCEPTANCE OF THE CHILD – Provided that the parents are comfortable with the child, they need to sign certain documents pertaining to the acceptance of the child.
FILING OF PETITION – The necessary documents should be submitted to a lawyer, and a petition should be prepared and presented to the court. The adoptive parents need to visit the court and sign the petition in front of the court officer.
PRE-ADOPTION FOSTER CARE – After the petition is signed in the court, the child is taken to a pre-adoption foster care centre by the adoptive parents to understand the habits of the child before taking the child home.
COURT HEARING – Along with the child, the parents have to attend a court hearing, held in a closed room where the judge might ask a few questions and mentions the amount that needs to be invested in the child’s name.
COURT ORDER – The judge will pass the adoption orders once the receipt of the investment made is presented in front of the judge.
FOLLOW UP – After the post-completion of the adoption, the agency henceforth needs to submit follow-up reports to the court on the child’s well-being that may continue for 1–2 years.

Post Adoption follow-up for In-country adoptions is conducted for two years on a six-month basis from the date of pre-adoption foster placement of the child with the PAPs and report uploaded in CARINGS.[1] In case of adjustment problems or disruption, the process to be undertaken is specified. [2] In case of dissolution, the application for annulment of the adoption order shall be filed in the court which issues the adoption order.[3]

NOC For Inter-country Adoptions:

All Inter-country Adoptions shall only be under the provisions of S. 56(4) JJ Act & AR 2017.[4]

NOC is mandatory for all the Inter-country Adoptions under the Hague Convention.

It is issued by the Central Authority of the sending country (CARA) after the receipt of Article 5 & 17 from the receiving country.

Conclusion

The adoption laws have improved tremendously, but many childless parents cannot adopt a child due to a lack of a uniform code. There should be no bias in the adoption of a child. Adoption brings happiness to kids who were left out alone. Adoption allows the human side of civilization to shine. Moreover, it is a helpful program where the kid is treated as a natural-born child and given all the love, care, and attention. It fills the emptiness in the parents who wish for having kids and enjoying their laughter and mischief; hence, echoing off home’s walls. Even now, a couple of changes could be made to make laws more uniform regarding adoption.

If you have the heart for adoption, do not let the fear stand in the way, because parenthood requires love, not DNA.

[1] Schedule XII of AR 2017 (Reg 13(1) of AR 2017).

[2] Schedule XII of AR 2017 (Reg 13(5)(6) of AR 2017).

[3] Schedule XII of AR 2017 (Reg 13(7) of AR 2017).

[4] Juvenile Justice Act, 2015 & AR 2017 (Section 56(4) of the JJ Act).

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