Adoption Laws In India

A legal affiliation of a child is called adoption, which relies upon the subject matter of different personal laws in India. Under the Guardian and Wards Act, 1890, communities such as Muslims, Christians, and Parsis can only take a child for foster care. A child is free to sever all connections once they reach 18 years of age. Such a child does not have any legal right to inheritance.

The primary legal systems concerning adoption in India are the Guardians and Wards Act, 1890, Hindu Law, and Muslim Law. There are three kinds of guardians: a natural guardian, a testamentary guardian, and a guardian appointed by law.

Child Adoption Under Hindu Law

According to Hindu Law, adoption is more sacramental than a secular act. The objectives include:

• Securing the continuation of one's descent
• Ensuring performance of funeral rites

The Shastras highlight that the adopted child should reflect a natural child, ensuring love and protection. An adopted child integrates into both the paternal and maternal families, prohibiting marriage between adopted and natural siblings. Modern adoption laws provide companionship for childless couples and a nurturing family environment for orphaned children.

Provisions under the Hindu Adoption and Maintenance Act, 1956 focus on Hindus, which also includes those who identify as Virashaivas, Lingayats, Arya Samaj, Buddhists, Jains, and Sikhs. This Act applies to legitimate or illegitimate children raised as Hindus, Buddhists, Jains, or Sikhs, excluding Muslims, Christians, Parsis, or Jews.

Essentials Of A Valid Adoption Under Hindu Adoption And Maintenance Act, 1956

According to the Act, a valid adoption requires:

• The adopter must be capable of adopting
• The donor must be capable of giving in adoption
• The adoptee must be legally eligible for adoption

The adoption involves an actual giving and taking ceremony named 'Data Homan' (oblation to the fire), though this may not be essential in all cases for the validity of an adoption.

Who Can Adopt

To adopt a child, a Hindu male must be of sound mind, a major, and financially capable. If married, his wife's consent is required unless she has renounced the world, converted from Hinduism, or is declared unsound mind by a court. Similarly, a Hindu female must be of sound mind, a major, single, or have a dissolved marriage, and her consent is necessary for the adoption process.

Who Can Give A Child For Adoption

Under the Act, individuals eligible to give a child for adoption include:

1. The father, with the mother's consent (if alive)
2. Only the father if the mother has renounced the world, converted from Hinduism, or is unsound
3. Only the mother if the father is deceased, has renounced the world, or is unsound
4. A legal guardian, with court permission, if both parents are deceased, have renounced, abandoned the child, or are unsound. The court ensures the adoption is in the child's best interest.

Who Can Be Adopted

Under the Act, the following criteria must be met for adoption:

1. The adoptee is Hindu
2. The adoptee has not already been adopted
3. The adopter and the adoptee are unmarried unless customs allow otherwise
4. The adoptee is under 15 years unless customs allow adoption beyond this age

Other conditions include:

1. An adopter must not have a living son’s son or son’s daughter if adopting a son.
2. An adopter must not have a living daughter's son or daughter's daughter if adopting a daughter.
3. If a male is adopting a male, the adopter must be 21 years older than the adoptee.
4. If a female is adopting a male, the adopter must also be 21 years older than the adoptee.
5. A child cannot be adopted by multiple parents, ensuring a singular family transition.

The Guardian And Ward Act, 1890

Personal laws like Muslim, Christian, and Parsi Laws do not fully recognize adoption. Non-Hindus can legally take guardianship under the Guardian and Ward Act, 1890, which establishes a temporary guardian-ward relationship ending when the ward turns 21. It does not grant inheritance rights.

Adoption - Muslim Law

Under Islam, traditional adoption is not acknowledged. However, there's 'Acknowledgement of Paternity,' different from adoption, as the adoptee cannot be the known child of someone else. Under the Guardian and Ward Act, 1890, courts can approve orphanage adoptions.

Adoption In Parsi And Christian Law

Similarly, Parsis don’t recognize traditional adoption and need court permission under the Guardian and Ward Act for orphanage adoptions. In Christianity, adoption is not acknowledged, and children from orphanages are only taken under guardianship without inheritance rights.

Recent Happenings

The National Commission on Women in India has stressed the need for a uniform adoption law, spotlighting the Guardians and Wards Act, 1890, which prioritizes the father’s rights and considers the child’s welfare for appointing a guardian.