Adoption Laws In India
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. Few of these have to reach court under the Guardian and Wards Act, 1890, like Muslims, Christians, Parsis. They can only take a child for foster care. A child is free to break all the connections once he is a major, i.e., when he/she reaches 18 years of age. Also, such a child does not have any legal right to inheritance.
There are three different legal systems that prevalent in dealing with adoption in India, Guardians and wards Act, 1890, Hindu Law, and Muslim Law. And there are three kinds of guardians, a natural guardian, a testamentary guardian, and a guardian appointed by law.
Let us see the adoption laws under different personal laws in India:
Child Adoption Under Hindu Law
According to the Hindu Law, adoption is more of sacramental than of a secular act. The object of adoption can be set into two parts:
1. To secure the continuation of one’s descent
2. To ensure the performance of his/her funeral rights.
The Shastras in Hindu says that the adopted child should be a reflection of a natural child, which guarantees the love and protection of the child. When a child gets adopted, not only he gets a set of adoptive parents, but also he gets all relations on the paternal and maternal side in the family come into existence. This also means the adopted child cannot marry the other child of his/her parents, whether natural or adopted.
However, the modern adoption laws were made and penned to give a fellow feeling and relief to a childless person/couple and, on the other hand, to provide a proper family filthy life to an unwanted, disputed, or an orphan child.
Provisions Under the Hindu Adoption And Maintenance Act, 1956
The Hindu Adoption and Maintenance Act, 1956, applies only to the Hindus, who lies under the definition of a Hindu, mentioned in Section 2 of the Act. The description also includes people who are Hindu by religion such as Virashaivas, Lingayats, Arya Samaj, or Buddhists, Jains, and Sikhs. Also, this Act undertakes all people who are not Muslim, Christian, Parsi, or Jew by religion, as they have their own laws. This Act can also be applicable to any legitimate or illegitimate child whose parents are unknown and, he/she is brought up as a Hindu, a Buddhist, a Jain, or a Sikh. After the implementation of this Act, it has regulated a lot of adoption cases in India.
The Act came in existence on 21st December 1956. Before this Act, only males were entitled to get adopted, but this Act made a provision for females as well to get adopted. The Hindu Adoption and Maintenance Act, 1956, applies to the whole of India, except the state of Jammu and Kashmir. Other than Hindus, it is also applicable to Buddhists, Jains, Sikhs, and to a person who is by religion, not a Muslim, Christian, or Parsi.
Essentials Of A Valid Adoption Under Hindu Adoption And Maintenance Act, 1956
According to the provisions of the Act, no adoption is a valid one except:
- The person who is willing to adopt should be capable of taking adoption of a child
- The person who is giving the child for adoption is capable of giving an adoption
- The adopted child should be legally capable of getting adopted
The adoption should be completed by performing an actual giving and taking ceremony named, ‘Data Homan’ (oblation to the fire). It is noteworthy that these points may not be essential in all cases when it comes to the validity of an adoption.
Who Can Adopt
In order to adopt a child in India, a Hindu male have to be sound mind, major and should have the capacity to give a proper life (Financially) to adopt a son or a daughter. Along with this if he has a living wife, the adoption should take place only after her consent, unless the wife has completely and openly renounced the world, she has quit Hinduism, or has been declared unsound mind by the concerned court.
In order to adopt a child in India, a Hindu female have to be sound mind, major and should have the capacity to give a proper life (Financially) to adopt a son or a daughter. Another vital requirement for a Hindu Female to adopt is being single (not married). In case she is married, her marriage has been either dissolve, or the husband is dead or has completely and openly renounced the world, he has quit Hinduism or has been declared unsound mind by the concerned court.
The notable factor is this if a Hindu female with a normal married life wishes to adopt a child, the adoption formalities have to be done with the consent of her.
Who Can Give A Child For Adoption
According to the Hindu Adoption and Maintenance Act, 1956, the following people are able to give a child for adoption:
1. The father with the consent of the mother (if she is alive)
2. Only father incase the wife has completely and openly renounced the world, she has quit Hinduism or has been declared unsound mind by the concerned court.
3. Only mother in case her marriage has been either dissolve, or the husband is dead or has entirely and openly renounced the world, he has quit Hinduism or has been declared unsound mind by the concerned court.
4. The legal guardian with the permission of the relevant court in case the child’s both father and mother are either dead, or have entirely renounced the world, or has abandoned the child, or has been declared unsound mind by the concerned court. It is important for the court to be satisfied that the adoption is justified in the welfare of the child, and all the requirements and wishes of him/her will be fulfilled by the adoptive parents with regard to his/her age and age understanding.
Who Can Be Adopted
According to the Hindu Adoption and Maintenance Act, 1956, a child/person can get adopted only if:
1. He/she is a Hindu
2. He/she has not already been adopted
3. He/she is single (not married), except there is some usage or custom applicable on him that allows him/her to get adopted being married
4. He/she has not completed the age of 15 years, except there is some usage or custom applicable to him that allows him/her to get adopted over 15 years of age.
Other Valid Conditions For Adoption Are
1. In case the adoption is being done for a son, the adoptive parent should not have a Hindu son’s son’s son or son’s son’s son, being alive at the time of adoption.
2. In case the adoption is being done for a daughter, the adoptive parent should not have a Hindu daughter or son’s daughter being alive at the time of adoption.
3. In case the adoption is being done for a male, by a male parent, the father adopting should be 21 years older than the adopted son.
4. In case the adoption is being done for a male, by a female parent, the mother adopting should be 21 years older than the adopted son.
5. A child cannot get adopted simultaneously by two or more parents. He/she has to be actually taken for adoption with an intention to transfer the child from his birth family.
The Guardian And Ward Act, 1980
The personal laws in India like Muslim Law, Christian Law, Parsi Law, do not acknowledge a complete adoption. The Non-Hindus in India do not have any authorized law to adopt a child legally; they can only take a ‘guardianship’ under the Guardian and Ward Act, 1980.
However, guardianship does not give the same status as a biological child. Unlike, as mentioned before, under the Hindu Adoption and Maintenance Act, 1956, an adopted child does not have any legal right of inheritance of the property. This Act only recognizes a guardian-ward relationship, which exists only until the ward reaches 21 years of age.
Adoption – Muslim Law
Under Islam, there is nothing as adoption; it is not recognized by Muslim Law. In the landmark case, Mohammed Allahabad Khan v. Mohammad Ismail, it was mentioned that there is nothing in the Muslim Law that is adoption or similar to adoption as recognized by the Hindu System.
The nearest approach to adoption under Muslim Law is ‘Acknowledgement of Paternity’. The difference between the two can be stated that in adoption, the adoptee is the known son of another person, while one of the essentials of acknowledgement is that the acknowledgee must not be known son of another.
However, under the Guardian and Ward Act, 1980, an adoption from an orphanage is permissible by the courts.
Adoption In Parsi And Christian Law
Similar to Muslim Law, Parsis in India do not acknowledge adoption, and they too can adopt a child from an orphanage with the permission of the concerned court under the Guardian and Ward Act, 1980.
In Christianity, there is also no acknowledgement of adoption. Adoption is a subject matter of personal law since it is a legal affiliation of a child. Similar to Muslims and Parsis, Christians also can adopt a child from an orphanage with the permission of the concerned court under the Guardian and Ward Act, 1980. Under the Act, a Christian can only take a child for foster care. Once the child is 21 years of age, he/she is free to choose to live with the guardian or to break all the connections. Also, such a child does not have any legal right to inheritance of the property.
Recently, a uniform adoption law has been stressed by the National Commission on Women in India. The commission emphasized on this particular matter because, the general laws relating to guardianship, under the Guardians and Wards Act, 1890, lays down the father’s right primary than the mother. Also, under the Act, no other person is entitled to adoption until he is found unfit by the court. The Act also mentions that it is vital for the court to take the welfare of the child into consideration, in order to appoint a guardian under the Act.