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ADOPTION IN INDIA


“Adoption is not about finding children for families, it’s about finding families for children.” — Joyce Maguire Pavao [1]


Collins Dictionary describes adoption as to- choose and brings into a certain relationship; specif., to take into one's own family by a legal process and raise as one's own child. Adoption allows an individual or a couple to become the parent/parents of a child after a legal process, where they get the child’s rights, privileges, and responsibilities and severs the ties with biological parents permanently.


Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, defines-“adoption means the process through which the adopted child is permanently separated from his biological parent and becomes the legitimate child of his adoptive parents with all right, privileges and responsibility that are attached to the relationship”.[2]


ADOPTION LAWS IN INDIA

Adoption falls under the subject matter of Personal Laws. A person whether Single or married, Non-Resident Indian (NRI), or a foreigner (citizen of another country) may adopt a child. A person can adopt a child from India under these Laws:


Hindu Adoption and Maintenance Act, 1956.

Hindus, including Buddhists, Sikhs, and Jains are governed by this act for Legal Adoption.

  • Capacity to Adopt:

Section 7 and 8 of the HAMA deals with the capacity to adopt Hindu Males and Females.

A) Hindu Male

Under section 7, the following conditions have to be fulfilled by any Hindu male (including Jain, Buddhist, and Sikh)

a. He is a major.

b. He is of sound mind.

He must have the basic capacity to understand the provisions of the Act (i.e. HAMA).

c. He should obtain his wife’s consent; it’s not necessary if she’s declared by the court as unsound mind or renounced Hindu religion/ world.

d. Consent of the wife is required in case of Judicial separation but not in case of Divorce.

e. The consent must be obtained before the civil adoption takes place and not later on where the proviso is disregarded adoption is not valid.

B) Hindu Female

Under section 8, the following conditions have to be fulfilled by any Hindu female (including Jain, Buddhist, and Sikh)

a. She is a major;

A woman, who has completed the age of eighteen, could adopt regardless of marital status. If she marries post-adoption, then her spouse would become the stepfather of the Child.

b. She is of sound mind

c. She is unmarried or if married, the court declares that her husband became unsound mind or renounced Hindu religion/world or their marriage is dissolved.

d. Adoption by an unmarried can also take place even though she is having an illegitimate child.

  • Who can be adopted?

Under HAMA, a child can be adopted if:

  1. The child can either be a girl or a boy if he/she is a Hindu.

  2. He/ She have not been adopted before.

  3. The age of the child is below 15 years.

  4. The child should not be married.

  • Conditions for adoption:

  1. The adoptive father or mother shouldn’t have a Hindu son, son’s son, or son’s son’s son living at the time of adoption of a son and a Hindu daughter or son’s daughter living at the time of adoption of a daughter.

  2. The adoptive father (adoption by a male) has to be at least 21 years older if he is to adopt a daughter and the adoptive mother (adoption by female) has to be at least 21 years older if she is to adopt a male.

  3. The Child has to be given to adoption by its biological parents or guardian or any other person/ body (in cases of an orphan, abandoned, and surrendered child).


Inter-country adoptions cannot be done under HAMA as this falls under private and direct adoption and is not supported by Hague Convention on Adoptions. Juvenile Justice Act provides for Inter-country adoption and prospective parents can go about their adoption through this Act.[3]


OAS children (Orphaned, Abandoned, and Surrendered) cannot be adopted under HAMA as belongs to the Government, they can be adopted under Juvenile Justice Act and Section 16 of HAMA, a registered Adoption deed finalizes the process of Adoption.


The Guardian and Wards Act, 1890.

In India, there are no separate adoption laws for Muslims, Christians, and Parsis, so they have to approach the court under the Guardians and Wards Act, 1890 for legal adoption, for a child who is not a Hindu and less than 18 years of age.


Adoption is not recognized in Muslim Law. In “Mohammed Allahabad Khan v. Muhammad Ismail”,[4] Mahmood, J., held that there is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System.

The Act does not establish Adoption (parent-child relationship) between the child and parent but just the relationship of Guardian and Ward till the child attains 18 years, after which there would be no legal rights and responsibilities between them.


Juvenile Justice Amendment Act, 2006.

A person of any religion can adopt under this Act and none of the provisions under this Act apply to HAMA.

This Act provides for both In-country and Inter-country Adoptions where any child under the age of 18 years (including Orphan, Abandoned & Surrendered (OAS) children) can be adopted.

  • Eligibility of Prospective Adoption Parents (PAPs):

Under the provisions of this Act, a couple/single parent can adopt and a Single male is not eligible to adopt a girl child. A PAPs couple should have had completed at least 2 years of their marriage and PAPs with 3 or more children shall not be eligible to adopt a normal Orphan, Abandoned & Surrendered (OAS) child.[5]

CARA (Central Adoption Resource Authority)

Cara is a statutory body and functions as the central or nodal body of the adoption of Indian children and monitors the in-country and inter-country adoptions.

Although any person, who is single or married, NRI or foreigner if eligible, can adopt from India, the procedure varies. The two types of Adoptions under the Juvenile Justice Act, 2015 and the Adoption Regulations, 2017 are as follows:

IN-COUNTRY ADOPTION

In-country adoption is a process where an individual or a couple PAPs and the child to be adopted belong to the same nationality. There are three ways to go about In-country adoption, they are as follows:


In-country Adoption of OAS Children

OAS children are the Orphaned, Abandoned, and Surrendered children, who are produced to Child Welfare Committee (CWC), within 24 hours after they are found /surrendered/ orphaned and sent to the Child Care Institution (CCI) or Selected Adoption Agencies (SAA) for immediate care and protection.


Then the undertaken child is declared Legally Free (can be given in Adoption) by CWC after following the due procedure laid under Section 38 of the Juvenile Justice Act & Regulations 6, 7 of Adoption Regulations 2017.


The process of Adoption under this Category is the PAPs have to register themselves and upload required documents on CARINGS (Child Adoption Resource Information and Guidance System) and then a Home study is conducted by a Social Worker in the PAPs residence to check their suitability and eligibility.


If Home Study Report (HSR) finds the PAPs suitable, then they are provided with the profiles of the available legally free children and they have to reserve a child within 48 hours after which the SAA with PAPs files a petition in the court for an Adoption Order, which finalizes the procedure and places the child in Adoptive Family.

There would be a Post-adoption follow-up by CARINGS every 6 months, up to 2 years from the adoption and they can also file for annulment of adoption order if the report after follow-up suggests the need to do so.


In-Country Relative Adoption

Here the PAPs intend to adopt a child of their relatives. The first step in the process is the PAPs have to register themselves on CARINGS and upload the required documents. The consent of Biological parents and the child, if they are older than 5 years of age is necessary.


District Child Protection Unit (DCPU) carries out verification and if the report filed by DCPU is satisfactory, State Adoption Resource Agency (SARA) gives its approval for the PAPs to file an application before the Court (Family court or District court or civil court) as the case may be and get an Adoption Order from the Court.


In-country Adoption By Step-Parent

Here the couple PAPs is one of the biological parents and a step-parent. At First, they have to obtain the permission from Child Welfare Committee (CWC) for the Adoption as per Schedule XX of Adoption Regulations 2017.

After uploading of required documents in CARINGS, they would get initial approval from CARA; consequently, the PAPs can apply to the court (Family court or District court or civil court) as the case may be and get an Adoption Order from the Court.


INTER-COUNTRY ADOPTION

Inter-country adoption is a process where an individual or a couple PAPs and the child to be adopted belong to a different nationality.

Hague Adoption Convention monitors the inter-country adoptions; India became a signatory of this Convention in 2003. It ensures that the children are free from the risks of illegal, irregular, premature, or ill-prepared adoptions abroad or prevent the abduction, the sale of, or traffic in children and that the adoptions carried out is in the best interests of the children. There are two ways to go about Inter-country adoption, they are as follows:


Inter-country Adoption of OAS Children

The first step in this process is Counseling and preparation of the Home Study Report (HSR) of PAPs by the Social worker of Authorized Foreign Adoption Agency (AFAA) or CA (Central Authority) for Hague Signatory Countries and Indian Mission for others. Then the PAPs are registered and upload required documents in CARINGS by AFAA/CA/ India Mission.


After the initial approval by CARA, the PAPs can choose and reserve a child from the profiles provided. Then CARA has to issue a mandatory NOC (non-objection Certificate) after receipt of Article 5 & 17 report from the receiving country (PAPs country).


Article 5 and 17 of The Hague Adoption convention report is given by the receiving country after determining that the PAPs are eligible and suited to adopt and that the child is or will be authorized to enter and reside permanently in the receiving State (PAPs country).

Then PAPs apply to the Court for an Adoption Order, Conformity Certificate, Passport, and Visa & Exit Visa for the child. Followed by Child Arrival and Citizenship (of the receiving country), Post- Adoption Follow-up till 2 years.


Inter-Country Relative Adoption

A Non-Resident Indian or an Overseas Citizen of India, interested to adopt a relative’s child may approach an Authorized Foreign Adoption Agency (AFAA) or the CA (Central Authority) in the country of their residence for preparation of a Home Study Report. Followed by, Registration of PAPs by the Social worker of AFAA or CA or Indian Diplomatic Mission (IDM), PAPs has to upload their documents on CARINGS.


CARA carious out initial scrutiny, followed by Verification by DCPU & Recommendation by SARA. As per Article 16 of The Hague Adoption Convention, CARA has to give pre-approval after the receipt of receiving the country’s report that PAPs are duly counseled, the adoption is in the best interests of the child, etc.[6]


PAPs can apply to the competent court and obtain the Adoption orders. CARA has to issue NOC& Certificate of Conformity following which; Passport and Exit Visa are issued to the Child. Then there is Child Arrival and Citizenship (of the receiving country), Post- Adoption Follow-up till 2 years.


Post Adoption Follow Up of Inter-country Adopted Children [7]

AFAA conducts Post adoptions follow-up quarterly for 2 years after the adoption and uploads its report on CARINGS. In case of any problem, the child shall receive care, protection, and rehabilitation through the child protection services of the receiving country as per the Hague Convention (Regulations 19(2) to (5) of Adoption Regulations 2017).

COURT PROCEDURE FOR ADOPTION [7]

The Adoption applications have to be filed before the civil court, which has jurisdiction in matters of adoption and guardianship and may include the District Court, Family Court, or City Civil court (Section 2 (23) of the Juvenile Justice Act)


Court Procedure is defined in Sec 61 of Juvenile Justice Act & Regulations 12, 17, 55 of the Adoption Regulations 2017 as per which, the court should satisfy itself before issuing adoption order that the adoption is for the welfare of the child and no payment is being made by the PAPs to the agency or the parent or guardian of the child in case of relative-adoption, in consideration of the adoption, except adoption fees or service charges or child care corpus authorized by CARA and the case proceedings shall be disposed within two months and shall be carried done in-camera.


CONCLUSION

Adoption can serve as a solution for a populous country like us, where there are many unwanted children (Orphaned, Abandoned, and Surrendered) and they can have a good life with the care and affection of a family through adoption. Although Adoption is not recognized by Muslim Laws, the Juvenile Justice Act provides Muslim PAPs with an opportunity to adopt under the Act and also a step towards the Uniform Civil Code.


References:

  1. The Family of Adoption Hardcover – by Joyce Maguire Pavao

  2. Section 2(aa) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006.

  3. Para 22 & 23 of Chapter 6 of Hague Convention Information Brochure.

  4. (ILR (1888) 12 All.289)

  5. Sec 57 of the Juvenile Justice Act & Regulation 5 of Adoption Regulations 2017

  6. http://cara.nic.in/

  7. http://cara.nic.in/PDF/Role%20of%20Judiciary.pdf


Article Written by-

VL Meghana Gattupalli

3rd Year, Icfai Law School, IFHE, Hyderabad.


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