Published On: 20th November, 2024
Authored By: Inshirah Azmi
Faculty of Law, Aligarh Muslim University, Aligarh
The establishment of a parent-child bond through a social and legal procedure other than birth is known as adoption. It is the process through which a child of one parent becomes a child of another parent(s). The country’s multicultural, multilingual, and multireligious attitudes have made it challenging to recognize all the complexity and implement an adoption policy that works for everyone. Adoption must be reinstated to guarantee the orphan, abandoned, and relinquished child’s right to a home. As civilization has progressed, the adoption procedure has become more important for both secular and religious purposes. Only Hindus came to recognize adoption as a legal institution. Muslims do not recognize adoption; however, it is common among Christians and Parsis. Hindus believe that the motivation behind adopting is the desire to have a son by natural birth. A person was permitted to adopt another person’s son as his own if he had no biological son. In the past, the sonship was valued for a variety of secular and religious reasons. In a diverse country like India, where customs vary widely, legal guidelines are essential to ensure that adoptions are ethical, transparent, and secure. The laws not only provide a structured process but also safeguard the welfare of children, prevent trafficking, and grant the adopted child legal rights akin to those of a biological child. The main laws governing adoption in India are the Juvenile Justice Act of 2015 (JJA) and the Hindu Adoption and Maintenance Act of 1956 (HAMA). These laws contain different rules and processes for adoption eligibility based on the child’s religion, country, and marital status of the adoptive parents.
Adoption according to HAMA
The Hindu Adoption and Maintenance Act, 1956 (HAMA) reflects the religious and cultural traditions of Hindus, Buddhists, Jains, and Sikhs in India, providing a framework for adoption that aligns with ancient customs. Under HAMA, adoption is viewed as a sacred duty, rooted in the belief that raising a child continues family lineage and fulfills religious obligations, such as performing last rites[1]. The law allows both men and women to adopt, though with gender-specific conditions, such as a husband needing his wife’s consent unless legally incapacitated. It also prohibits adopting a child of the same gender if one already exists, a custom historically tied to balancing family lineage. HAMA blends tradition with contemporary legal concepts by granting adopted children the same rights as biological offspring, including inheritance while maintaining religious rituals.
Adopting a kid is open to any male Hindu who is of sound mind, meets the requirements for adoption, and is a major. Before adoption, a married Hindu man seeking to adopt a child must obtain his wife’s approval, which must be given freely[2]. Any Hindu woman who is a major, of sound mind, and who meets the requirements to adopt a child may do so. Before adoption, a married Hindu woman desiring to adopt a child must obtain her husband’s consent, which must be given freely[3]. In the case of Ghisalal v Dhapubhai[4], it was said that the requirement was that the wife’s consent be obtained in writing or by a voluntary, affirmative act; her mere presence at the adoption ceremony would not constitute her assent.
Hindu men and women who wish to adopt a son shall not, at the time of adoption, have a living son, whether illegitimate or legitimate[5]. It is forbidden for a Hindu man or woman to adopt a daughter while their own daughter or son’s daughter is still alive[6]. It is required for a man to be at least 21 years older comparatively to adopt a daughter and a woman must be at least 21 years older than the adoptive son to adopt a boy[7].
The adopted child in the adoptive family has the same rights as a biological child under the Hindu Adoption and Maintenance Act (HAMA). The child joins the family as a full member after being lawfully adopted, and having the same rights, obligations, and legal standing as a biological child. This ensures the kid is not subjected to discrimination in succession proceedings and includes the right to inherit property from the adopted parents, whether it is self-acquired or ancestral. Furthermore, the adoption is irreversible, which means the adoptive parents cannot take the child back or deny them. To further emphasize the child’s complete integration into the adoptive family, the law also severs the child’s legal links with their birth family[8]. Through these provisions, HAMA ensures that the adopted child is afforded complete legal protection and security within the family structure.
Shrinivas Krishnarao Kango v. Narayan Devji Kango[9]– In this instance, an adopted child filed a petition seeking a portion of his joint undivided property. The defendants contended that the adopted child was only entitled to ancestrally derived property, not self-acquired property. The court decided that when a kid is adopted, adoption has the consequence of creating a legal fiction and making the adopted child the natural heir. When a Hindu man’s widow adopts a child, the adoption has a retroactive effect, granting the adopted child all son-related rights from the father’s date of death. It was further decided that the son would be entitled to a portion of the adoptive father’s assets as a result of the adoption. However, the adoption back rule is not observed when someone makes a claim to another person’s property. In these situations, the rule that applies is that once property is vested in someone, it cannot be taken away from them.
Adoption according to JJ Act
By meeting their basic needs through adequate care, protection, development, and treatment along with social reintegration, and by adopting and putting into practice a child-friendly approach in the arbitration and disposal of matters and cases in the best interest of children and for the rehabilitation of children, the Juvenile Justice Care and Protection of Children Act 2015 aims to strengthen and amend the law pertaining to children who are alleged to be in conflict with the law and children who require care and protection.
Shabnam Hashmi v. Union of India[10]—In this case, the SC held that the JJ Act is a secular law. Under this act, anyone can adopt a child, regardless of their religious beliefs.
This act has established an organized and legally governed adoption procedure with the goal of safeguarding the child’s welfare. The entire procedure is supervised and facilitated by the Central Adoption Resource Authority (CARA). Regardless of their faith, potential adoptive parents must register on the CARA website and submit to a comprehensive home study conducted by a professional adoption agency. Their appropriateness and adoption readiness are assessed in this evaluation. Adoptable children under the JJ Act are usually orphaned, abandoned, or relinquished, and the Child Welfare Committee (CWC) must declare them legally free for adoption. After a match is made, the adoptive parents must supervise the child’s foster care for a pre-adoption period before the adoption is legally completed with a court order. The JJ Act requires an open procedure, guarantees that domestic and international adoptions follow stringent legal guidelines, safeguards the child’s rights, and stops abuses such as child trafficking[11]. CARA’s function is to control and mandate adoptions of children in India, both domestically and internationally. The Hague Convention on Inter-country Adoption, 1993, which was ratified by the Indian government in 2003, designates CARA as the Central Authority to handle inter-country adoptions. Adopting orphans, abandoned, and surrendered children is CARA’s main focus through its affiliated/licensed adoption agencies[12].
Challenges in the Adoption System
The lengthy, intricate, and bureaucratic adoption procedure in India can lead to delays in connecting adoptive children with qualified families, which prolongs the waiting period for the children and irritates the adoptive parents. Instances of illicit and uncontrolled adoption practices in India. This includes baby trafficking and child sales, as well as the existence of unregulated adoption agencies that prey on vulnerable kids and biological parents. In many traditional countries, the idea of adoption can incite shame and foster negative sentiments toward adopted children and their families. As a result of this negative view, adoptive homes may experience social disfavor or even isolation, and adoptees may face unfair stereotypes or unfounded opinions. Certain families may place more emphasis on the biological side of having children than the other, which could cause problems with acceptance and unfair treatment of family members. There can be a trend in some parts of India to prefer male children. This tendency may affect how often adoptable female children are, which could lead to an uneven proportion of girls who are left unadopted. Some families could be deterred from adopting since adoption entails significant costs, including travel, home study, and legal fees. These financial limitations may prevent prospective parents from proceeding with the adoption procedure[13].
Suggestions
It is crucial to realign the adoption process such that children’s needs come first rather than the needs of the parents in order to put their welfare first. This change can be accomplished in large part by integrating the numerous adoption-related regulations. Adoption rules must be strengthened by means of comprehensive examination and reform in order to improve the adoption process and place a higher priority on the welfare of children. This means reducing wait times, streamlining documentation, resolving any ambiguities or gaps in the law, and maintaining openness at all times. Fostering acceptance of child adoption as a dependable family formation method requires educating society on the advantages, procedures, and legal ramifications of the practice. Furthermore, fostering the idea that this alternate approach is equally valuable necessitates educating people without regard to biases or preconceptions. It is advised that the government conduct a comprehensive investigation to ascertain the main reason behind the drop in adoption rates observed in India.[14]
Conclusion
A balanced, inclusive system that honours both cultural traditions and current child protection concerns in adoption must integrate traditional values with contemporary legal frameworks. Traditional regulations like the Hindu Adoption and Maintenance Act (HAMA) help communities to keep their distinctive rituals connected to family lineage and the spiritual significance of adoption in a country like India, where religious beliefs and family structures are highly valued. For example, HAMA recognizes that Hindus have a religious obligation to adopt, particularly in order to preserve family heritage. Families can adopt in a way that is consistent with their cultural heritage and religious convictions because to this regard for tradition. On the other hand, contemporary legal frameworks such as the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) offer much-needed child protections, such as uniform laws, openness in the adoption procedure, and protection against exploitation or trafficking. The Central Adoption Resource Authority (CARA) oversees these legal protections, which guarantee an ethical adoption procedure that takes into account all religions and prioritizes the child’s care over the wishes of the adoptive parents. In accordance with international norms such as the Hague Convention, the JJ Act guarantees equality in adoption proceedings by establishing a single platform for all people, regardless of their religion. The combination of these two systems—traditional and modern—reflects India’s dedication to safeguarding children while honoring the country’s population variety. It permits families to adopt in a way that is culturally appropriate while guaranteeing that the child’s rights and best interests are safeguarded by way of legal supervision. The adoption process is strengthened by this dual approach, which also guarantees the preservation of traditional values while addressing modern issues like child protection, accountability, and transparency in the legal environment. By doing this, India establishes a progressive benchmark for juggling custom with accountability under the law when it comes to adoption. Indian law therefore achieves a delicate balance, guaranteeing the coexistence of cultural heritage and the legal protection of children in the adoption context, providing a future that is advantageous to families, communities, and, above all, the children.
References:
[1] Sneha Priya, ‘Hindu Adoption And Maintenance Act’, Legal Service India <https://www.legalserviceindia.com/legal/article-5613-hindu-adoption-and-maintenance-act.html> accessed 6 September 2024
[2] Hindu Adoption and Maintenance Act 1956, S. 7
[3] Hindu Adoption and Maintenance Act 1956, S. 8
[4] AIR 2011 SC 644.
[5] Hindu Adoption and Maintenance Act 1956, S. 11(i)
[6] Hindu Adoption and Maintenance Act 1956, S. 11(ii)
[7] Hindu Adoption and Maintenance Act 1956, S. 11(iii-iv)
[8] Niraj Meena, ‘Adoption Laws in India: Challenging Existing law’, Manupatra <https://docs.manupatra.in/newsline/articles/Upload/E8EFE493-114B-4E5B-A014-682EB1729301.pdf> accessed 6 September 2024.
[9] 1954 AIR 379.
[10] AIR 2014 SC 1281
[11] Saumya Kalia, ‘All about CARA, India’s adoption regulation body’ The Hindu (16 November 2023).
[12] Central Adoption Resource Authority (CARA)..
[13] Archita Sharma, “Overview Of Child Adoption In India And Laws Governing It”, The Amikus Qriae <https://theamikusqriae.com/overview-of-child-adoption-in-india-and-laws-governning-it/> accessed 6 September 2024.
[14] Archita Sharma (n 10).
