ADOPTION

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This article is written by Chhavi Tripathi of 3^rd Semester of Atal Bihari Vajpayee School Of Legal Studies, CSJM University, Kanpur

ABSTRACT

“Little Souls find their way to you, whether they are from your womb or someone else’s” –Sheryl Crow

Adoption is a term that has a vast meaning encompassing love, trust and faith. Child Adoption is bliss, having a child is the greatest joy a couple or a parent could have. Adoption is a wonderful choice not only for single parents but also for children who are homeless. It illuminates a parent-child bond among people who have neither met before nor are genetically connected. In India, we see orphanages are full of young children as they have no parents to take care of.

According to the official adoption data, 3,559 children were adopted in India between April 2020 and March 2021. As of March 2023, based on the data of CARINGS a total of 1760 children are legally available for adoption[1]. Generational obsessive preference for sons in rural India is rooted in the prevalent patriarchal system, even today the girl child is found in a Dustbin even after having the presence biological parent[2]. The reports have shown that people prefer boys over girls in their adoption plans. This article will delve into the motivations behind adoption, encompassing its social, psychological, legal and cultural dimensions.

Finally, this article will highlight the changing landscape of adoption, including evolving trends and challenges in the 21^st century. By shedding light on these diverse facets of adoption, this article aims to contribute to a deeper understanding of this critical and evolving aspect of human society.

Keywords: Adoption, Love, Trust, Single parents, Homeless children, Parent-child bond, Gender preference, Patriarchal system, Girl child, Motivations, Social dimensions, psychological dimensions, Legal dimensions, Cultural dimensions, 21st century

INTRODUCTION

Adoption is a process whereby a person assumes the parenting of the other, usually a child from that person’s biological or legal parents. This is a lawful process through which an adopting child becomes the lawful child of the person adopting. This means that an individual has all the rights, duties and responsibilities attached to that child. Some fundamental principles govern the adoption of children in India:

The paramount consideration of any individual who is adopting shall be in the child’s best interest.
The preference shall be given to the child with the Indian citizens with due regard to its socio-cultural environment.
All adoptions shall be registered on the Child Adoption Resource Information and Guidance System and shall be under its authority.[3]

Adoption benefits orphans, homeless children and childless couples, it does not restrict itself to couples but to single adults and makes their lives meaningful. The Juvenile Justice Act of 2015[4] states that adoption is the process through which the child adopted is permanently separated from his/her biological parents and becomes the lawful child of his/her adoptive parents with all the rights, privileges and liabilities that are attached to a natural child.

II.TYPES OF ADOPTION

Adoption is a legal way of getting a child from an agency and it involves raising the child as your own by taking all the responsibilities of that child.

There are 4 types of adoption:

Open Adoption

It means that this kind of adoption is open which means that the birth parents of a child and his/her adopting parents keep in contact through letters, e-mails or phone calls and may even visit each other. This type of adoption has the advantage that the birth mother can decide to whom her child should go.

2. Semi-open Adoption

This kind of adoption does not involve any direct contact between the biological parents and the adoptive parents. The biological mother of the child keeps receiving letters and photographs from the adoptive parents until the child reaches the legal age.

3. Closed adoption

As the name suggests this kind of adoption does not have any contact between the adoptive parents and the birth parents. Both the set of parents do not have any kind of information about each other.

4. Intrafamily Adoption/ Relative Adoption

This kind of Adoption happens within the family. This usually takes place when the biological parents of a child die, get married to someone else, or cannot take care of the child then a member of a family steps into the shoes of the biological parent.

There are two kinds of adoption based on the territory:

Domestic adoption

This adoption refers to the adoption that happens within the country. This refers to the adoption that happens within the country. Registration is required for couples who wish to adopt a child as well and verification of the particulars is carried out by an investigating officer who will also assess whether the couple is eligible for adoption or not.

2. International Adoption

This adoption involves adopting a child from an outside country or in other words the couple can adopt a child from a country who is not a native of that country[5]

III. ADOPTION MOTIVATIONS

Adoption is a meaningful way of erecting families and furnishing children with loving homes. It is a legal and emotional process that involves accepting the responsibilities of caring for a child who is not biologically related to the adoptive parents.

When we talk about motivations for adoption, it varies from person to person and their motivation for adoption can vary:

The very first motivation for an adoption can be because of a genuine love for children. Although it may sound a bit unrealistic. Some couples have a compelling love for children such that they adopt children, irrespective of whether they have natural heirs or not.
The second and very common reason could be because of infertility to produce a child biologically.
People often adopt children to help the needy ones.
To avoid the transmission of genetic abnormalities or diseases if the couple have their biological child.
A single person who wants to experience parenthood, the very common example is Miss Universe and film Actress Sushmita Sen who is a single child and has adopted a child[6].

IV. ADOPTION IN INDIA

“Adoption is not about finding children for families; it’s about finding families for children” -Joyce Maguire Pavao

This quote highlights the need that adoption is all about finding the families of children. It is quite difficult to think how life would be without parents as any person who has grown up with their parents couldn’t understand what is like to live without parents. But visit any adoption centre and ask an 8-year-old child, he doesn’t know what it’s like to have a parent. India has the highest population when compared to other countries and every day, many children are pushed towards the orphanage centres. The children who beg on the road are not provided with food from the people who are capable enough to feed them, this could be a reason why most children have to stay alone.

ADOPTION PROCESS

The adoption process in India is governed by three laws:

The Hindu Adoption and Maintenance Act (HAMA), 1956.
The Guardianship and Wards Act of 1890.
The Juvenile Justice Act, 2015[7]

HINDU ADOPTION AND MAINTENANCE ACT, 1956

This act has used the word ‘child’ which includes both a girl and a boy instead of ‘son’ which makes the definition of adoption must wider. According to this act, a Hindu means any person who is Buddhist, Jain, Sikh, Vira Shaiva, Lingayat or a member of Arya samaj and who is not a Christian, Muslim, Parsi or Jew. Under this act, both a Hindu male and a Hindu Female could take adoption of a child.

CAPACITY OF A HINDU MALE TO ADOPT

Section 7 of the Act states that a male Hindu who is willing to adopt a child must fulfil the following conditions:

Must be of a Sound mind
Must be a major and can adopt a son or a daughter.
The wife of that man must consent to the adoption, if no consent then that adoption is void.

CAPACITY OF A HINDU FEMALE TO ADOPT

Section 8 of the HAMA, states the following conditions for a Hindu female to adopt which are as follows:

Must be of sound mind
Must be a major
Be a widow or a divorced woman.
Be an unmarried woman
In case the woman has renounced the world or converted to another religion, consent is not required for adoption.[8]

RIGHTS TO GIVE A CHILD FOR ADOPTION

Section 9 of HAMA mentions the right to give a child for adoption:

If case parents die, the guardian can give up their child for adoption.
If the father is alive then he can give his child up for adoption and in that case, no consent is required.
If the mother becomes an unsound mind, then his/her father can give up his child for adoption.

It was held in Bal Gangadhar Tilak v. Shrinivas Tilak[9]; it was held by the privy council that adoption is not only to legalise the child but also it have a religious means to make obligations and sacrifices for the child.

RESISTANCE CONDITIONS OF ADOPTION

The HAMA has prescribed some conditions for adoption which are as follows:

Adoption of a Son

This act clearly stated that if someone desires to adopt a son, they must not have a living son, grandson, or even a great-grandson.

Adoption of a daughter

This act clearly states to adopt a daughter one must not have a daughter or a son’s daughter but if the two have ceased to be a Hindu, then adoption is valid.

Adoption of a female child by a man

Under section 11 of HAMA, the age gap between the male and the female child should be 21 years.

Adoption of a male child by a woman

Under section 8 of HAMA, the age gap between the male child and the female should be 21 years. [10]

PROCESS OF ADOPTION

According to HAMA any party willing to adopt a child can write an application to the child welfare agency. The registration could be done by any agency certified by CARA (Central Adoption Resource Authority).
The next involves the interview of the couple who desire to adopt a child to know the couple’s true intention and motive.
When the adoption agency is satisfied with the interview by the couple. The party can file a petition and within 2 months of filing the petition, the court has to dispose of the case.
In the end, the court issues a decree and the adoption procedure is finalised. [11]

EFFECT OF ADOPTION

Generally, when a child is adopted, he/she has the same rights on the property and all other rights of his parents as the biological child. But there are some exceptions limiting this general rule:

An adopted child on attaining majority can only marry an adopted child and not the one who is not adopted.
Any property owned by the adopted child before adoption remains with them, along with any associated obligations, including maintaining relations with their birth family.
Adoption does not revoke prior vested estates.[12]

CASE LAWS

In Malti Roy Chowdhury v. Sudhindranath Majumdar[13], it was held that “Adoption has to be taken factually or legally by the male in case of marriage, and not by the wife. In other words, the wife cannot adopt indeed with the concurrence of the husband”

In Nilima Mukherjee v. Kanta Bhushan Ghosh[14], In this case, a plea of adoption was taken based on joint accounts with the alleged adoptive father, the court held that the mere fact of having a joint account cannot be considered as proof of adoption.

In Kumar Sursen v. The State of Bihar[15], in this case, Hindu Parents wanted to adopt a Muslim Child, but the court declined to give them the status of an adopted child.

2. GUARDIANS AND WARDS ACT, 1890

The main aim of this act is to define the guardianship of the child. Islamic, Christian and Parsi personal laws and other laws in India do not recognize a full adoption. In India, non-Hindus have no legal way to adopt a kid; Instead, they are only taken on a “Guardianship” under the 1980 Guardian and Ward Act. This act offers complete adoptive rights to the parents. Unlike the HAMA this act does not give any biological rights of the child to the parents.

According to section n 4(a) of this act the minority of a particular person is defined by the age of that person. Guardianship is when a person is appointed to make decisions on behalf of another person who lacks decision-making capacity.

APPLICABILITY

This act applies to all minors (Persons below the age of 18 years) and in some cases, to individuals who are of unsound mind. It is meant to protect the rights of minors in situations including custody disputes and the appointment of guardians.

DUTIES, RIGHTS AND LIABILITIES OF GUARDIANS

The guardian and children relation is a fiduciary relation for the protection of will and other instruments, but it cannot make any profit in the will and property of children.
Minors are considered incompetent which prevents them from becoming a guardian of children. They could be a parent of their children but not a guardian.
In case a guardian is a minor, then the court appoints the collector for the care and protection of children. The collector is connected with the guardian, also the court will decide on duties towards children.[16]

WHO CAN BE A GUARDIAN?

The Act defines who can be appointed as a guardian for a minor. It distinguishes between two types of guardians:

Natural Guardian: A natural guardian is typically the father of a minor, and in his absence, the mother. However, the court can appoint a different person as a guardian if it is in the best interest of the child.
Testamentary Guardian: A testamentary guardian is appointed by a minor’s parent through a will. The person appointed as a testamentary guardian has the authority to act as a guardian upon the parent’s death.
Guardian Appointed by the Court: The court can appoint a guardian if it deems that it is necessary for the welfare and well-being of the minor. This is typically done when disputes arise between parents or if the child has no natural guardian.

JURISDICTION

The Act provides that the court having jurisdiction in the place where the minor ordinarily resides will have the authority to make decisions regarding guardianship and the welfare of the child.

TYPES OF GUARDIANS

The Act provides for two types of guardianship:

Guardianship of the Person: This refers to the custody of the minor and the responsibility for their day-to-day care, including decisions related to their education, health, and overall well-being.
Guardianship of the Property: This pertains to the management and protection of the minor’s property and assets. The guardian of the property is responsible for managing and preserving the minor’s assets until they come of age.

RIGHTS AND DUTIES OF GUARDIAN

Guardians have both rights and duties under the Act. They have the right to the custody and control of the minor and the right to make decisions regarding their upbringing and welfare. However, they are also bound by certain duties to act in the best interest of the minor and protect their rights and property.

Supervision and Review: The court has the authority to supervise the actions of guardians to ensure that they are acting in the best interest of the minor. If a guardian is found to be failing in their duties or if circumstances change, the court can modify or revoke the appointment.
The welfare of the Minor: The paramount consideration in all matters related to guardianship is the welfare of the minor. The court is expected to make decisions that are in the best interest of the child, taking into account their physical, mental, and emotional needs.

ADOPTION PROCESS

According to this act, the interested party can apply to the court where they have to mention the reason for adoption and the other necessary details for adoption.
The court will examine all the pieces of evidence, documents and other requirements as considered upon the minor’s interests.
It will be at the discretion of the court whether the party should be given guardianship of the minor or not.

CASE LAWS

In the case of PT Chathu v. VKK Kanaran[17], the court held that if the father is alive and is not unfit to be a natural guardian, the mother cannot claim to be the guardian of the minor.

In Rajalakshmi v. Ramachandran[18], the Court stated that the fact that someone surrenders your property to a minor and appoints yourself as guardian of that property does not mean that you are a guardian as per law.

In Bakshi Ram v. Shila Devi[19], the court held that a mother’s rights as a natural guardian cannot be questioned or confined even after her remarriage.

3. JUVENILE JUSTICE ACT, 2015

The Juvenile Justice (Care and Protection of Children) Act, 2015 is an Indian legislation that provides a framework for the care, protection, treatment and rehabilitation of children in need of care and protection. The adoption process under this act is regulated by the Central Adoption Resource Authority (CARA).

The primary aim of adoption is to provide a child who can not be cared for by his biological parents with a permanent substitute family. The family of a child has the primary responsibility to provide him with care and protection. Orphan, abandoned or surrendered children may be given in adoption by a Court in keeping with the provisions of several guidelines regarding adoption issued by the State Govt./Central Adoption Resource Authority and notified by the Central Govt. But the Court should be satisfied with the investigation having carried out which is required for giving such children in adoption.[20]

The Juvenile Justice Act (Care and Protection) read with Adoption Regulation, 2017 has recognized five kinds of adoption namely:

An abandoned, surrendered, destitute child adopted by any person living within the country.
An abandoned, surrendered, destitute child adopted by any person living outside the country.
A child of a relative living outside the country.
A child of a relative living inside the country.
Adoption of a child by step-parents.

CHILD WELFARE COMMITTEE

Section 29 of the Juvenile Justice Act, 2000 provides that a Child Welfare Committee could be set up and shall have the authority to declare any child in need of care and protection who is orphaned, abandoned and surrendered free for adoption.

CWC shall be governed as laid down in the Juvenile Justice Act 2006 and its rules. If the CWC declares any child is free from adoption, there will be termination of parental rights. Section 41 (5) of the Juvenile Justice Act, 2000 provides that a child shall be offered for adoption on fulfilment of the following requirements. [21]

In the case of an Abandoned child, if two members of the committee declare the child legally free for placement.
In the case of a surrendered child, if the period of two months for reconsideration by the parents is lapsed.
In the case of a child who can understand and express his consent, if his/her consent is obtained in this regard.

PROCESS OF ADOPTION

Specialized Adoption Agencies are required to promptly present orphaned and abandoned children eligible for adoption to the Committee within 24 hours of receiving them. A report must also be filed with the local police station.
A child becomes eligible for adoption after an inquiry conducted by a Probation Officer or Child Welfare Officer, with the findings presented to the Committee within one month.
For children declared legally free for adoption, Specialized adoption agencies must declare no claimants after public notifications. There are specific timeframes for this process: 60 days for children under two and four months for children above two.
No child above seven years can be adopted without their consent.
Surrendered children, born from non-consensual relationships, unwed mothers, or incapacitated parents, require counselling. A two-month reconsideration period is granted to parents after the surrender. If surrender is unavoidable, a non-judicial deed is executed in the Committee’s presence.

CASE LAWS

In Laxmi Kant Pandey v. Union of India and Ors[22], this case addressed the issue of adoption under the Hindu Adoption and Maintenance Act which is relevant to the Juvenile Justice Act. The Supreme Court of India clarified the concept of adoption under Hindu law.

Shabnam Hashmi v. Union of India[23]: In this case, the Supreme Court of India discussed issues related to the adoption and guardianship of children, particularly those belonging to religious minorities. It has implications for adoption under the Juvenile Justice Act.

Sahara House Building Society v. State of Gujarat[24]: This case touched upon the procedural aspects of adoption and the rights of adoptive parents and children, emphasizing the importance of complying with legal requirements for adoption.

Suman Singh v. Sanjay Singh[25]: This case, while not directly related to the Juvenile Justice Act, discussed the rights of a child adopted under customary law and the recognition of such adoptions in the Indian legal system.[26]

CARA GUIDELINES ON ADOPTION

Adoption in India is regulated by the Central Adoption Resource Authority which is an autonomous body under the Ministry of Women and Child Development.

KEY PROVISIONS

Following are the key provisions of the latest CARA guidelines of 2017:

In a married couple, a single male/female can adopt a child up to 18 years of age.
A single male can only adopt a male child.
There are no restrictions on a single female to adopt only a female child, she has been given the right to adopt a child of any gender.
The minimum age difference between the adoptive parent and the child should be 25 years.
Parents with greater age:

90 years (single parent – 45 years) can adopt a child up to 4 years of age.

100 years (single parent – 50 years) can adopt a child between 4 to 8 years of age.

110 years (single parent – 55 years) can adopt a child between 8 to 18 years of age.

6. Online Registration of both parents who wish to adopt is mandatory with the CARA Adoption system – CARINGS and upholds required documents per their status.

7. The parents can indicate their preferences while registering i.e., `From age 0 to 18 years, can be of any gender, can give top 3 preference of the state, the child can be Normal/ Sibling/single need.

8. A fee of Rs. 46,000 is payable by the parent to the SAA.

CONCLUSION

Adoption is a complex and transformative process that profoundly impacts the lives of both the adoptive parents and the children. It provides a loving and nurturing environment for children in need, offering them the opportunity to thrive and grow within a supportive family. While it comes with its challenges and legal intricacies, the power of adoption lies in its ability to create strong, unbreakable bonds, and to provide children with a chance at a brighter future.

REFERENCES