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Published : June 24, 2012 | Author : mini.anshuman
Category : family law | Total Views : 25432 | Rating :

  
mini.anshuman
Mini Gautam, B.S.L LL.B from ILS Law College and currently pursuing LLM in International Financial Law from Kings College London. Anshuman Chanda, B.S.L LL.B from ILS Law College and currently pursuing LLM in Tax Law from Kings College London.
 

The Road to Becoming Parents – Law on Adoption in India

“Adoption” means the process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached with the relationship. [s.2(aa) of the Juvenile Justice Act as amended in 2006]

The very purpose of any adoption proceedings is to affect this new status of relationship. As a result of the decree of adoption; the child, to all intents and purposes, becomes the child of the adoptive parent.

Adoption is so widely recognized that it can be characterized as an almost worldwide institution with historical roots traceable to antiquity.

A child can be adopted under Hindu Adoption and Maintenance Act, 1956 and Juvenile Justice (Care and Protection) of Children Act, 2000 (last amended in 2006).

Origin and Development of Adoption
Adoption in Hindu mythology - The object of adoption was to secure performance of funeral rights and to preserve the continuation of one’s pedigree. A ‘Dattak Homam’ made the relationship lawful and gave complete rights of name and inheritance to the son. Boys were given in adoption and a female could not take a child in adoption excepting a widow who could adopt a boy in the name of her late husband. Adoption was applicable to Hindus. Muslims, Jews and Parsis were out of its purview, though the church accepted adoption as a part of its canon law and gave the adopted child the full status of a biological child. On 21 December, 1956, this custom of adoption among the Hindus was given a legal status through enactment of Hindu Adoption and Maintenance Act, 1956.

Adoption among Muslims - Today, some Muslims do adopt children in India but since there is no law to make their adoption legal, the adoption remains informal.

Adoption and Christians - The canon law does not bar or prohibit Christians from adopting a child. But since there is no law on adoption for Christians in India, they have to resort to the Guardians and Wards Act, 1890.

Rising trends.- The concept and practice of adoption in India has changed considerably from the past. Adoption in earlier times was parent - centered, the needs of the parents being the chief consideration. But from the beginning of the 1960s alterations have taken place at the social, legal and practice levels of adoption. Adoption is considered the best substitute for children deprived of their biological families.

International Scenario -
Article 19(1) of The United Nations Convention on the Rights of the Child provides that States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Many national and international instruments have played a dominant role in popularizing the practice of adoption. Among these the ones noteworthy of mention are The National Policy for Children, 1974; The United Nations Declaration on the Rights of the Child, 1959 and most importantly The United Nations Convention on the Rights of the Child, 1989. Article 20 of The United Nations Convention on the Rights of the Child, states that children deprived of family environment should be provided with alternative family care or institutional placement. The focus of adoption has shifted from the needs of the parents to the rights of the child in the family.

Foster Care and Adoption

Foster care provides temporary substitute care for children. It is different from adoption where the child severs all ties with his own natural parents. In foster care, the child is placed in another family for a short or extended period of time depending on the circumstances. The child’s own parents usually visit regularly and eventually after rehabilitation, the child may return home. When the family is undergoing a temporary crisis like death of a parent or sudden disease, children experience a lot of tension and stress. They maybe needed to be detached from their natural homes to prevent neglect. Children can be placed in foster care families.

Sponsorship and Adoption
Sponsorship provides supplementary support to families who are unable to meet educational and other needs of their children. Sponsorship helps to send the child to school, provide medical aid and at the same time stay in touch with the family of birth. It is an excellent way in which society can help parents who are not in very favorable positions by extending their helping hand.

Indian Adoption Laws
1. Hindu Adoption and Maintenance Act, 1956 - Only statute in force specifically governing adoption in children and its ambit is confined to Hindus in India (s.2 defines who are considered Hindus for the application of the Act).

2. The Juvenile Justice (Care and Protection of Children Act), 2000 – Juvenile Justice Act, 2000 contains provisions relating to rehabilitation and social integration of children. s.40 of the Act provides that rehabilitation and social integration of a child shall begin during the stay of the child in a children’s home or special home by:
a. Adoption;
b. Foster care;
c. Sponsorship and
d. Sending the child to an after-care organization.
1. The Guardians and Wards Act, 1890. - The Act is indirectly invoked by other communities also to become guardians of children during minority. The statute does not deal with adoption as such. It concerns mainly with guardianship and is to be read along with respective personal laws, or as ancillary to the latter. However, it must be noted that the process is not equivalent to adoption; it would only give the child the status of a ward.

2. The Hindu Minority and Guardianship Act, 1956. - The Act reforms and codifies the law relating to guardianship of minors. This Act also applies only to Hindus.

3. The Hindu Succession Act, 1955 and The Indian Succession Act, 1925. – They govern succession and inheritance rights.

Basic Features of Law Relating to Adoption
1. Hindu Adoption and Maintenance Act, 1956 amended the pristine law of adoption among Hindus and unified several forms of adoption which prevailed earlier like Dattaka, Kritima, etc into a single form.

2. Under Hindu Adoption and Maintenance Act, in-country adoption is even now a private act between the natural and adoptive parents, not requiring scrutiny or permission of the court except when a person other than the natural guardian is giving the child in adoption.

3. A married man, a widow, a widower, a single woman, or a divorced or a deserted woman has the capacity to adopt, if they are Hindus (s.7 and 8 of Hindu Adoption and Maintenance Act).

4. The father has a prior right of adoption but can do so only with the consent of his wife, i.e. the mother of the child (s.7 of Hindu Adoption and Maintenance Act). Adoption made without her consent is void. The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu.

It is sad to note that the archaic system of considering the father to be the first and obvious guardian is still followed in the law.
1. Both sons as well as daughters can be adopted. Any Hindu child, whether relative or not of the adoptive parents can now be adopted. The caste or sub-caste of the child is now no bar; only condition is that the child should be a Hindu. Adoption of physically and mentally disabled children is also valid.

2. No Hindu male or female can adopt a son if he or she already has a Hindu son, son’s son or son’s son’s son living at the time of adoption. Similarly he or she has no right to adopt a female child if he or she has a Hindu daughter or son’s daughter living at the time of adoption (s.11 of Hindu Adoption and Maintenance Act).

3. Hindu Adoption and Maintenance Act abrogates all pre-Act customs and usages pertaining to adoption for which provision has been made in the Act.

Hague Convention
India has signed the Hague Convention on Inter-Country adoption, 1993 on 9 January, 2003 and ratified the same on 6 June, 2003, with a view to strengthening international cooperation and protection of children placed in inter-country adoption. The Convention recognizes that for full and harmonious development of his or her personality, the child should grow up in a family environment, in an atmosphere of happiness, love and understanding. The Convention also states that the objectives of inter-country adoption should be in the best interests of the child, with respect to their fundamental rights and to prevent abduction, sale and traffic in children.

For the purpose of implementation of the Convention, in our country, Ministry of Social Justice and Empowerment is functioning as the Administrative Ministry and Central Adoption Resource Agency (CARA) as the Central Authority.

The following analysis is based on the guidelines given by Central Adoption Resource Agency.

Central Adoption Resource Agency (CARA)
In pursuance of the landmark judgment of the Supreme Court of India in the Laxmi Kant Pandey v/s Union of India case, (1991) 4 SCC 33, the Central Adoption Resource Agency was established by the Ministry and subsequently the Revised Guidelines for the Adoption of India children were issued in 1995 to provide a framework of rules regulating and monitoring inter-country adoptions. These Guidelines are now applicable all over the country and they provide a uniform mechanism for processing cases of inter-country adoption.

Who Can Adopt?
1. Prospective Adoptive Parent(s) should have a reasonable and regular source of income to support the needs of the child within the family.
2. PAPs should not suffer from major health hazards that can come in the way of parenting.
3. No child shall be given to a couple unless they have 2 years of stable marriage.
4. Neither of them should have a criminal record.
5. Couples in live-in relationships cannot adopt. The law may need to be amended in this area since so many couples opt for live-in relationships even in India nowadays and they should be given the option of bringing up a child in a loving and caring home environment if they are found competent to do it. Similarly, same sex couples are not given children in adoption. This may also need to change if the law has to keep pace with the changing patterns of society and if we wish to call ourselves a broad minded and aware nation.
6. Composite age should not exceed 90 years for adopting children in the age group of 0-3. The individual age of the PAPs should not be less than 25 years and more than 50 years. To adopt children above three years of age, the maximum composite age of the PAPs should be 105 years wherein the individual age of the PAPs should not be less than 25 years and more than 55 years.
7. A single parent can also adopt. However, a single or unmarried male person is not permitted to adopt a girl child. The law is discriminatory against men in this regard. While the possibility of abuse of a girl child by a male may seem something to be protected against, there should be no general rule that single men cannot make good fathers for adopted girls.
8. Age difference between single PAP(s) and adopted child should be at least 21 years if they are of opposite sexes.
9. A single parent should be atleast 30 years of age and upto 45 years to adopt a child in the age group of 0-3. The maximum age for adopting a child older than 3 years is 50.
10. Single parent should have additional family support.
11. Older couples can adopt an older child.

From where you can Adopt?

# RIPA (Recognised Indian Placement Agencies)
# Shishu Grehas getting grant-in-aid from Central Government
# LAPAs (Licensed Adoption Placement Agencies by respective State Governments)
# Adoption Coordinating Agencies and State Adoption Cells may also be contacted

Not to Adopt From

# Unlicensed homes or Agencies
# Nursing homes or hospitals
# Any unknown person

Procedure for Adoption
1. Prospective Parents should register with the local Licensed Adoption Agency or Adoption Coordinating Agency or State Adoption Cell. Interest of the PAP(s) in adoption is ascertained at this stage.
2. A home study of the Prospective Adoptive Parents is conducted by a social worker of the Agency.
3. After initial survey, PAP(s) submit documents related to their financial status and health status to the agency.
4. A child is then shown to the parents.
5. A social worker tries to place the child according to the expectations of the parents.
6. After acceptance, the child is placed with the family. Meanwhile the Agency files a petition for obtaining necessary orders under the relevant Act.
7. Fees, as prescribed by Government, will be charged, by the licensed agency for maintenance and legal costs.
8. The above process is completed within 6-8 weeks once the child has been matched with the family. There are regular follow-up visits and post-adoption counseling by the social worker till the child adjusts in his or her new environment.

Children who can be adopted
# He or she maybe a child relinquished by his or her parents or guardians
# He or she maybe a child found abandoned. Such a child must be referred to the Child Welfare Committee through the Police. Child Welfare Committee has the sole authority to declare a child fit for adoption under The Juvenile Justice Act, 2000

Surrendered Children
A child may be surrendered in case: -
(i). The child is born as a consequence of non-consensual relationship;

(ii). The child is born of an unwed mother or out of wedlock;

(iii). One of the biological parents of the child is dead and the living parent is incapacitated or unfit to take care;

(iv). The parents of the child are compelled to relinquish him or her due to physical, emotional and social factors beyond their control.

Birth parents relinquishing a child have to execute a document of surrender in favour of the adoption agency, duly witnessed by any authority of the hospital or nursing home and a relative and the waiting period of 2 months is given to the birth parents to reconsider the decision. After expiry of the period, the child is legally free for adoption. (Ss 14 and 15 of the CARA Guidelines)

Salient features of the Hague Convention.-
# Child should be adoptable.
# Possibilities of placement of child within the State have been given due consideration.
# Consent from required persons, institutions and authorities has been given in legal form who have been counseled about the legal effects of adoption.
# The consents have not been induced by any payment or compensation.
# Consideration has been given to the child’s wishes.
# There will be a Central Authority in each contracting State (In India, CARA).
# Persons residing in one contracting state, who wish to adopt a child habitually resident in another contracting state, shall apply to the Central Authority in the State of their habitual residence.
# Report will be made to determine if the applicants are eligible and suited to adopt
# Report shall be transmitted to the Central Authority of State of Origin
# If Central authority is satisfied that the child is adoptable, a report shall be prepared.
# It shall be determined if the adoption is in the best interest of the child, with due consideration to the child’s ethnic, religious or cultural background.
# If after the transfer, placement is not in the interest of the child, child maybe withdrawn and either put to temporary care or a new placement or brought back if his or her interests so require.
# Competent authority of a contracting state shall ensure that information held by them concerning child’s origin, in particular information of identity of parents etc. is preserved.
# No improper financial or other gain, only costs and expenses, and reasonable professional fees of those involved, maybe charged.
# Competent authorities shall act expeditiously.
# The Secretary General of Hague Convention on Private International law shall at regular intervals convene a Special Commission in order to review the practical operation of the Convention.
# The Convention is open for signature by the States who were members of the Hague Convention.
# Any other State may accede to the Convention.
# Such accession shall have effect only as regards relations between acceding state and those contracting states which have not raised an objection in the 6 months after receipt of the notification. Such an objection may also be raised by the states at the time when they ratify, accept or approve the convention after an accession. Any such objection shall be notified to the depository.


Conclusion
There can hardly be any act nobler than providing shelter, care and love to a homeless child. However, many well-meaning prospective parents get caught up in the administrative delays related to adoption in India. It is necessary to put in place a number of safeguards to ensure that children are sent to homes where they will not be abused or hurt in any manner. But they should be limited to a reasonable extent. A balance needs to be implemented and ensured. CARA is doing good work in a positive direction but there is much that still needs to be done. It will be extremely unfortunate if there are children without homes and homes without children just because of governmental delays and administrative hurdles.

The  author can be reached at: mini.anshuman@legalserviceindia.com




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Article Comments

Posted by Poornima SD on July 04, 2016
my daughter[14 years ] wants her step father to be as guardian. her
biological father has divorced me.

Posted by Tushar Shirwadkar on August 18, 2013
I would like to know information about adoption formalities by mutual
consent

Posted by Chandini P on August 02, 2012
Sir,

I would like to know if the legal guardianship (obtained by a court
order)of a minor boy can be transferd from one maternal uncle to
another? Please advise.
Thanks
Chandini

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