LAWS RELATED TO ADOPTION AND CUSTODY IN INDIA

has always been a sacred act performed by the humans. As per the Merriam-Webster legal dictionary legal means “to take voluntarily (a child of other parents) as one’s own child especially in compliance with formal legal procedures”.

Child Adoption Laws In India

A legal framework was established so as to protect the rights of the adopted child. In India, it falls under the ambit of personal laws, and due to the incidence of diverse religions practiced in our country, mainly two different laws operate. Muslims, Christians, Parsis and Jews are governed by the Guardians and Wards Act, 1890, as formal adoption is not allowed in these religions. Hindus, Sikhs, Buddhists and Jains on the other hand follow the , 1956. According to section 2(aa) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, “adoption means the process through which the adopted child is permanently separated from his biological parent and becomes the legitimate child of his adoptive parents with all rights, privileges and responsibility that are attached to the relationship”.

INTRODUCTION

Children are considered a bundle of joy and on whom the future of the country depends. While on one hand children born in India are being pampered, taken care of and given all the necessities for their all-round development, on the other hand there are over 60,000 children being abandoned per year in India. In some cases, these children become victims of human trafficking and sexual violence. In fortunate cases, the abandoned children are taken to any adoption agency and may hope for a better life while waiting to get adopted. Such cases, of children being given a chance at a second life through adoption are on the rise. In its simplest of senses, adoption is a process whereby a person assumes the parenting for another and, in doing so, permanently transfers all rights and responsibilities, along with filiation, from the biological parent or parents.

HINDU ADOPTION AND MAINTENANCE ACT, 1956

This Act deals with topics such as capacity to adopt, capacity to give in adoption, effect of adoption, gender bias and such others.

WHO IS ELIGIBLE TO ADOPT A CHILD IN INDIA?

> “Any male Hindu (including Buddhist, Jain or Sikh by religion) who is of sound mind, not a minor and is eligible to adopt a son or a daughter”. But if such male has living spouse at a time of adoption then he can adopt a child only with a consent of his wife (unless she has been declared incompetent to give her consent by the court).

> “Any female Hindu (including Buddhist, Jaina or Sikh by religion) who is not married, or if married, whose husband is not alive or her marriage has been dissolved or her husband has been declared incompetent by the court has the capacity to take a son or daughter”.

Conditions for adoption by Hindu couples or single parent

> “In case of adoption of a son by any Hindu male or female, there should not be any living son in the succeeding three generation of the party (whether by legitimate blood relationship or by adoption).

> In case of adoption of a daughter by any Hindu male or female, they should not have any daughter or son’s daughter at the time of adoption.

> Where there is an adoption of a daughter by a male then the adoptive father should be at least twenty-one years older than the child.

> Where there is an adoption of a son by a female than the adoptive mother should be at least twenty-one years older than the child”.

WHO CAN BE ADOPTED?

As per the Hindu law following child may be adopted namely-

> The child can either be a girl or a boy if he/she is a Hindu.
> He/ She has not been adopted before.
> The age of the child is below 15 years.
> The child should not be married.

CAPACITY TO GIVE IN ADOPTION

The section 9 of this Act states that only the father, the mother or the guardian can make the decision of giving a child in adoption. The father can give the child in it only with the consent of the mother, unless the mother has ceased to be a Hindu, has renounced the world or is of unsound mind. The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

EFFECT OF ADOPTION

When once a child has been adopted, that child severs all ties with his natural family. All the right and obligations of natural born children fall on him.

The wife of a Hindu male, who adopts is deemed to be the adoptive mother. Where an adoption is made with the consent of more than one wife, the senior most in marriage is deemed to be the adoptive mother and the rest are given the title of step mothers. All laws relating to the adoptive parents and/or step parents can be seen in ss. 12, 13 and 14 of the HAMA, 1956.

Also, it has to be noted that the adoptions once made by the parents cannot be cancelled by the parents, nor can the adopted child renounce the adoptive family and go back to his/her birth parents. Adoption is generally held to be permanent in nature, with neither parties going back on their words. This has been stated in section 15 of The Act. But care has to be taken that the adoption referred to in this section is a valid adoption.

child adoption laws in india

GUARDIANS AND WARDS ACT, 1890

As the name itself suggests, the HAMA were mostly the guidelines for the Hindu society. Another law had to be made which was sensitive to the personal laws of other religions which did not come under theHAMA, 1956. This gave rise to the Guardians and Wards Act of 1890.

The Guardians and Wards Act, 1890 was a law to supersede all other laws regarding the same. It became the only non-religious universal law regarding the guardianship of a child, applicable to all of India except the state of Jammu and Kashmir. This law is particularly outlined for Muslims, Christians, Parsis and Jews as their personal laws don’t allow for full adoption, but only guardianship. It applies to all children regardless of race or creed. Following is an overview of the act.

Personal laws of Muslim, Christian, Parsis and Jews do not recognise complete adoption so if a person belonging to such religion has a desire to adopt a child can take the guardianship of a child under section 8 of the Guardians and Wards Act, 1890.

This statute only makes a child a ward, not an adoptive child. According to this statute, the moment child turns to the age of 21, he is no longer consider as a ward and treated as an individual.

However, an adoption can take place from an orphanage by obtaining permission from the court under Guardians and Wards Act. Christians can take a child in adoption under the Guardians and Wards Act, 1890 only under foster care. Once a child under foster care becomes major, he is free to break away all his connections from his adoptive parents.

It was stated that any child who had not completed 18 years of age was to be a minor. This child would be appointed guardians by the court or any other appointed authority.

WHO IS ALLOWED TO ADOPT A CHILD IN INDIA?

In India, an Indian whether he is married or single, Non-Resident Indian (NRI), or a person belonging to any nationality (foreigner) may adopt a child. The guidelines and documentation process for each group of adoptive parents may differ.

Intercountry adoption: In India, there is no separate act that governs adoption by foreign citizens or NRIs but it is covered under Guidelines Governing Adoption of Children, 2015. Under these guidelines misuse or illegal use of the children through adoption is prevented. As per the Supreme Court Guidelines for intercountry adoption a foreign parent can adopt an Indian child before he/she completes the age of 3 years. In the absence of any concrete Act on intercountry adoption, the provisions of Guardians and Wards Act, 1890 will be followed for adoption.

In case of adoption of abandoned, abused and surrendered children all intercountry adoptions shall be done only as per the provisions THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 and the adoption regulations framed by the Authority.

Guardians and Wards Act, 1890 remains silent about the adoption of orphans, abandoned and surrendered children. Chapter VIII of the Juvenile Justice (Care and Protection of Children) Act, 2015 deals with adoption in such category of the child. Section 58 of this Act defines that any citizen of India, irrespective of their religion, if interested to adopt an orphan or abandoned or surrendered child, may apply for the same to a Specialised Adoption Agency, in the manner as provided in the adoption regulations framed by the Authority.

Section 57 of this Act deals with Eligibility of prospective adoptive parents. As per this Section, the adoptive parents should be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him and both partners must consent for the adoption. A single or divorced person can also adopt in accordance with the provisions of adoption regulations framed by the Authority but a single male is not allowed to adopt a girl child.

As per the Guardianship law and The Juvenile Justice (Care and protection of children) Act, 2015 following child may be adopted namely-

> Who is not a Hindu.
> Who is minor (not completed the age of 18 years).
> An orphan or abandoned or surrendered child.

WHAT ARE THE NECESSARY PROCEDURE FOR A VALID ADOPTION?

> Under The Hindu Adoption and Maintenance Act, 1956 the party willing for adoption can make application to Child Welfare Agency. Registration can be done either an Adoption Coordinating Agency (ACA) found in each state’s capital city, or an agency certified by the Central Adoption Resource Authority (CARA) in New Delhi.

> After this, the agency conducts a preliminary interview with the adopting couple in order to understand their intention and motivation behind adoption.

> Once the party decides which child are they going to adopt they file the petition at the court of appropriate jurisdiction, where court hearing takes place regarding adoption (the court is required to dispose the adoption case within 2 months). Once the Court issues the decree, the adoption is finalized.

Under The Guardianship and Wards Act, 1890 the party seeking guardianship has to file application to the Court where they provide complete information on them, reasons behind to become guardian of a child and other information asked in the application. After admitting the application, the court will set the date of hearing where it will hear and view evidence, requirements and considering the interests of a minor, then court will decide whether the guardianship of a minor should be given to such party or not.

There is a directive that adoption proceedings have to be completed within two hearings, and the petition has to be disposed of within two months of the filing of the petition. The certified copy of the order has to be obtained by the agency within 10 days. The agency must also obtain the birth certificate of the child, with the names of the adoptive parents.

OTHER ASPECT OF ADOPTION

> HOW MUCH TIME DOES THE ENTIRE PROCESS TAKE?

Adopting a child in India is a long process. Earlier, parents who wished to adopt would go to the nearest agency and register. The agency would match preferences of the couple with the children available. The match may or may not happen, and would take months, even years. Now, all adoption agencies have to upload details and the Central Adoption Resource Authority (CARA) software will match preferences across the country. This has lessened the duration of an adoption.

> WHAT CAN BE THE AGE OF THE BABY THAT CAN BE ADOPTED?

Under HAMA, 1956 a child who has completed the the age of fifteen years shall not be given in adoption unless there is a custom or usage applicable to the parties who is willing to make an adoption which permits them to adopt a child above the age of fifteen years.

Under The Guardians and Wards Act any child who had not completed 18 years of age can be adopted.

> CAN A PERSON ADOPT A CHILD IF HE ALREADY HAS A CHILD?

Yes. The gender of the child becomes a factor here. The Hindu Adoption and Maintenance Act, 1956 (HAMA, under which Hindus, Jains, Sikhs, Buddhists and Arya Samaj adopt) allows only to adopt a child of the opposite gender to the adoptive parent which they already have. There is no such problem under the other 2 adoption laws, namely the Guardians and Wards Act, 1890 and the Juvenile Justice Act, 2015 which has enabled many Indians to adopt a child of the same gender.

> IS THERE A MINIMUM INCOME NEEDED FOR ADOPTING A CHILD?

As per CARA, couples must have a minimum average monthly income of Rs. 3000. Lower income may be considered considering other assets and support systems e.g. one’s own house etc.

An adoption is a pious act so it should be performed by the people at a large scale because India is a country where there is too much population and there is a huge number of unwanted children. In the past few years, agencies and adoptive parents have noted a growing preference for the girl child over boys in India’s adoption system. Adoption is one of the ways to control and prevent female foeticide and infanticide problem raging in India. And what could be better than to provide a good standard of living to a child who really needs it.

of Children in India

Parenting is not merely the bragging rights of a desperate parent but is an endeavor that determines the future well-being and morale of the child. The need for determining the legal guardianship of children aged below 18 occurs in the event of a divorce or annulment of marriage. In India, the rights of adjudication of this most delicate of provisions are vested with the family law courts. 

Custody of Children in India

Types of Custody

The law concerning custodianship facilitates custodianship of any of the following manner, as directed by the courts:

  • Physical custody
  • Legal custody
  • Joint physical custody
  • Third party custody

Here’s an overview of the above-mentioned types of custodianship.

Physical Custody

Physical custody awards the custody of a child to a single parent if the other parent is abusive and is considered unfit for parenting. The parent with the custodial rights will be designated as the primary caretaker and will be in charge of the child’s emotional, medical and educational needs. For this purpose, the legal guardianship is bestowed on the person who may potentially serve the child better in terms of these needs.

The earning capacity of the parent isn’t prioritized here, as the parents are assessed based on their potential to provide a safe and secure environment for the child. If a non-earning parent is bestowed with the custody of a child, the earning member is accountable to cater to the financial needs of the children.

According to a ruling of the Supreme Court, the custody of a child is bestowed to the mother if the age of the child is five or below, subject to conditions.

Joint Physical Custody

The affection of a child is oftentimes impossible to comprehend. Most children, except in certain extreme scenarios, prefer to side with both their parents. Such a scenario would entitle both the parents to cherish the legal custody of the child, though physical guardianship would be entrusted to a single parent. Here again, the aspect of income isn’t prioritized over the potential of the parent to provide a safe and secure environment to the child.

Legal Custody

The option of legal custody bestows the parents with the entitlement of making vital decisions with respect to the upbringing of a child. The rights so bestowed on them includes the right to cater to the child’s educational, moral, financial, and medical requirements. These aspects are given prominence as it has a direct bearing on the welfare of the child.

Third Party Custody

The discretion to bestow the guardianship rights on the hands of a third party are taken when the concerned adjudicators are of the opinion that neither of the biological parents is considered fit to be assigned with the custodianship. In this case, the rights are granted to a third person.

The Central Regulation

The laws concerning the custody of a child are provided in the Guardians and Wards Act of 1890. The law is enforced on all the religions of the country and is considered in conjunction with the relevant religious laws. On a precise note, the following aspects are considered while determining the guardianship of a child:

  • The personal law wherein the minor is the subject.
  • The age, gender, and religion of the minor.
  • The character and capacity of the proposed guardian.
  • The relationship of the kin with the minor.
  • The wishes of a deceased parent.
  • Any existing or prior relations of the proposed guardian with the minor.
  • The minor’s capacity to make an intelligent preference.
  • The desire of the child.
  • The number of siblings in a family – The courts would generally like to keep the children together if the concerned family has multiple children, and hence would ordain the custodial rights accordingly.
  • The comfort, health, material, the intellectual, moral and spiritual welfare of the child.

The Hindu Law

The Hindu laws pertaining to guardianship are covered in the Hindu Minority and Guardianship Act, 1956, which is almost synonymous with the Guardians and Wards Act, 1890. The similarities found in both these laws are as follows:

  • The mother will be bestowed with the custodianship of the child if the particular child is aged five or below, except in circumstances where the mother is proven to neglect or ill-treat the child.
  • The general regulatory standards of both the laws favor the father to gain custody of older boys and the mothers with that of older girls, though it is by no means a compulsory dictum.
  • A child’s desire is considered if he/she has surpassed the age of nine.

Apart from the above provisions, the Hindu Law ordains the following:

  • The custody of boys and unmarried daughters is bestowed on to the father.
  • Mothers are provided with the upper hand of attaining the custodianship of an illegitimate child, though the father isn’t deprived of these rights.
  • The guardianship of a married girl is attached to her husband.

The Muslim Law

According to the laws of ‘hizanat’ (the Muslim law for child custodianship), the rights of custodianship are entirely vested with a mother except if she is considered unfit to be a guardian. However, it may be noted that the rights of a mother aren’t absolute as the desire of the children holds more significance.

The Christian Law

The laws of Christianity are silent on the issue of child custody rights and are hence governed by the Indian Divorce Act of 1869. Section 41 of this Act entitles the courts to pass orders with respect to the custody, education, and maintenance of Christian children. The Act generally adheres to the rule of joint physical custody.

The Parsi Law

The Parsis, like the Christians, haven’t come up with any laws pertaining to this provision. As a consequence, the associated issues are addressed by the Guardians and Wards Act, 1890, and the Parsi and Marriage Divorce Act, 1936. The latter Act provides ample support to a wife claiming maintenance to support his/her minor children. Also, the Act mandates the courts to pass an order of Parsi custodianship within 60 days.

Recent Court Rulings

The following regulations have been enforced by the various courts over the last few years:

  • The Supreme Court has determined that the mother of a child will be bestowed with its custodianship if the particular child is aged five or below, except in circumstances where the mother is proven to neglect or ill-treat the child.
  • A Supreme Court Bench presided by Justice Vikramjit Singh Sen had issued a directive stating that an unmarried mother need not seek the consent of the biological father of the child to enjoy its custodianship.
  • The Delhi High Court has stated that the name of a mother would be considered sufficient for a child’s passport application if the child is being brought up by a single mother.

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