This Article is written by Debolina Banerjee, a Second-year law student of Sister Nivedita University

INTRODUCTION

Adoption is considered a sacred act of humans by which one voluntarily takes up the child of others as their own and in compliance with legal procedures. According to the Hindu personal law, adoption was considered as a sacramental act. The object of Adoption among the Hindus is twofold: - to secure the performance of one’s funeral rites and to preserve the continuance of one’s lineage. The process of adoption can be considered as legal or illegal. There is no concept of adoption under the Muslim, Christian, and Parsi so they must take adoption as per the rules of the Guardian and Wards Act, 1890 for legal adoption. In India the laws related to Adoption are mainly dealt with by the Hindu Adoption and Maintenance Act, 1956, and the Juvenile Justice (Care and Protection) of Children Amendment Act, 2006. According to the JJ Act adoption is the process by which a child is separated from their biological parents and brought under the responsibility of adoptive parents following the legal procedures.

ADOPTION UNDER THE HINDU LAW

The process of adoption under Hindu personal law is governed by the Hindu Adoptions and Maintenance Act, of 1956. The first object of Adoption is religious namely to secure the spiritual benefit of the adoption and the second object is secular.

· WHO MAY TAKE IN ADOPTION

As per the HAMA (Hindu Adoptions and Maintenance Act, 1956), any male Hindu who is of sound mind and has attained the age of majority is competent to take a son or daughter in adoption. The male person who has a wife who is living cannot adopt without the consent of the wife unless the wife has completely renounced the world, ceased to be a Hindu, or has been declared by a court of competent jurisdiction that she is of unsound mind.

The same conditions apply to any woman Hindu who is willing to take a son or daughter for adoption.

· WHO MAY GIVE IN ADOPTION

Under section 9 of the HAMA, the provisions as per who can give in adoption are specified which include: -

1. The father - it does not include an adoptive father, putative father, or stepfather. The biological father can only give after consent of the mother of the child.

2. The mother- the mother of an illegitimate child has the power to give the child in adoption and no question arises of putative father’s consent.

3. The guardian – this term includes both de jure and de facto guardian. A guardian can exercise the power only if both the parents are dead, the parents have been judicially declared to be of unsound mind, they have renounced the world, parentage of the child is not known.

· WHO MAY BE TAKEN IN ADOPTION

As per sections 10 and 11 of the HAMA, the essentials required for the person to be adopted and the essentials of valid adoption are as follows:

1. He or she must be a Hindu

2. He or she has not already been adopted

3. He or she is not married unless a custom or usage is permitting such adoption

4. He or she has not completed the age of 15 years unless a custom or usage permits such adoption

5. If the adoption is of a son, then the adoptive parents cannot have a Hindu son, son’s son, or son’s son’s son living at the time of adoption. The same applies to the case of the adoption of a girl.

6. There must be an age difference of 21 years between the adoptive parents and the person to be adopted.

THE GUARDIAN AND WARDS ACT, 1890

In India, only the people belonging to the Hindu religion can legally adopt a child but people belonging to other religions can only het Guardianship of a child as per the Provisions of The Guardians and Ward Act, of 1890. The relationship which is established under this is that of guardian and ward. It does not confer any status on the child who is adopted. When the child turns 21 years of age, they no longer remain wards and assume individual identities and do not have any automatic right of inherence.

THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000

The JJ Act applies to all citizens of India. Under this act, any couple, or single parent can adopt an orphan, abandoned, or surrendered child. Under section 37 of the act, child welfare can declare legally that an abandoned, surrendered child is free from adoption and allows children up to the age of 18 years for adoption. The capacity of males and females to adopt under this act can be termed as prospective parents and it takes place as per the provisions of section 5 of the act. The parents must be of sound mind, fit, and competent to take adoption. In cases of married couples, the consent of both partners is required. The minimum age difference between the adoptive parents and the child cannot be less than 25 years of age. A single male is not considered eligible to adopt a girl child.

Central Adoption Resource Authority (CARA) is a statutory body under the JJ Act, 2015 which was established to monitor in-country and inter-country adoptions. The criteria for a valid adoption under this are as follows:-

· The child must be legally free from adoption

· A child can be placed for adoption before he reaches the age of 12 years.

· The consent of the child is needed wherever applicable.

CONCLUSION

Adoption is a pious act and it shall be performed by people at a larger scale in India. It is one of the ways to prevent female foeticide in India. However, only the Hindus legally have the right of Adoption therefore an Uniform Civil Code is needed for adoption among all religions.

REFERENCES

· https://blog.ipleaders.in/all-you-need-to-know-about-child-adoption-laws-in-india/

· https://www.legalserviceindia.com/legal/article-721-adoption-laws-in-india.html

· https://en.wikipedia.org/wiki/Central_Adoption_Resource_Authority

· https://docs.manupatra.in/newsline/articles/Upload/E8EFE493-114B-4E5B-A014-682EB1729301.pdf

· THE HINDU LAWS BARE ACT