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ADOPTION RIGHT IN INDIA

Author: Shushant Shubham, V year of B.B.A.,LL.B. from Bennett University


INTRODUCTION

“Adopting one child will not change the world : but for child world will change”

Adoption is a noble cause, that brings happiness to kids, who all were abandoned, or orphaned, or by any matter left without parents. This give chance for us human to act as civilized. In this beneficial program the child is treated as the natural born child and given all the love, attention and care. It also fills the void in the parents who yearned for kids, their laughter and mischief echoing off the wall of a home.


Adoption is the process through which a child is transferred from the family of his birth to his adoptive family. Adoption as a family creation has been building on cumulative work for three decades.India has undergone significant improvements in the area of adoption as one of the antiquated nations of the Asian mainland.India has been displaying complex changes from a casually accepting male child for performing last customs after the death of the received guardians.In the midst of the social transition in the 1950s, India concentrated on seeking a home for children relinquished, dejected, misconceived and surrendered.These children were supervised and set for long-term residential and national adoption.(Dudley) Only in the late 1980s, residential adoption in India collected its resources.Vital developments in the world of adoption have arisen from that point on. In this phenomenological approach we used meetings in tandem with writing audit what's more, adoption books.We concentrated on three territories in this region, after a short authentic perspective from Indian and Western portion. Firstly, the advancement of arrangements and lawful rules in India, moreover, their effect on adoption as a composed group, current difficulties and potential household adoption trends.


Adoption is the basis of a partnership between parent and child by a lawful and social mechanism other than the birth procedure. It is a procedure by which the child of one guardian arrangement becomes the child of another guardian or parent arrangement.Indian adoption approaches are marked by constant efforts by lobbyists for social reform and child welfare groups for quite a long time. This is evident from the laws and solutions put forward by the Indian government.A subsequent legislation found in Section IV of the Juvenile Justice Act of 2000 enacted the concept of universal adoption whereby, without regard to the network or religious backgrounds of the parents or the child involved, a right appears to be given by all means to all subjects and to all children to be adopted.Although this was a positive improvement, this concept also did not grant the child the status of lawful and true blue equal to that of a child of normal, honest goodness.Subsequently, the Juvenile Equity (Care and Security of Children Act, 2006) cleared up the issue where adoption was defined as the process by which the obtained child is removed from the organic guardians for all time and becomes the new parents 'genuine child with all the rights, benefits and duties relevant to the relationship.This example presented the child requiring care and protection for the articulation. Our motivation through this paper is to discuss the history, the show and the eventual fate of adoption in India. For that, one should first get it more about the verifiable point of view of Indian adoption.


OBJECTIVES AND SCOPE

Main objective of this research is to find all the laws relating to adoption prevailing in India. To learn all about all the problems faced by people while adopting children in India. What all are the break through cases relating to changes in law of adoption if there were any. Adoption is a process which can be regarded as a good deed but process involved in adopting a child is complex and to find all those complexity is the main aim of the project.

Mainly the researcher will try to find

  • All the current changes and attitude toward domestic adoption.

  • Government incentives.

  • Challenges in domestic adoption.

  • Future of domestic adoption.


METHODOLOGY

Both quantitative and qualitative information was collected in research. To assess the process of adoption quantitative information on peoples’ awareness on adoption rights and laws relating to adoption was collected. Other statistical information were examined while writing the paper.


CHAPTERIZATION

Chapter I : History of adoption of child in India and evolution of adoption in 19th century

In India, adoption has been practiced for thousands of years. Hinduism is the major religion practiced in India, epics and history has records of saints and royals who were adopted and who also adopt. Both Mahabharata and Ramayana are the two great epics of Hinduism which bear references to adoption. Historically, where a lack of male offspring occurred, couples were in for adoption a male child to designate him as lawful heir.


According to Hindu tradition, sons are important and a dead parent’s soul can only attain heaven if that person has a son to light the funeral pyre, and salvation can be achieved through sons who offer ancestral worship. It claims that, according to the Hindu Mythology, only son could be adopted for the continuity of the family lineage and the success of one's funeral rites. Even the Dharmasastras are only concerned with the fitness of a male child to be adopted. A child was historically adopted for temporal and spiritual reasons and is now often adopted to fulfill the emotional and parental instinct of the adopter. In ancient India the adoption ceremony (Dattahoma) is the most important witness of the adoption and the legitimacy of the adoption ceremony had to be invited by the relatives.[1] According to Smrtikaras if a person takes a child as his own, he will be the inherited authority or heir of the entire property and the adopted child is always entitled to the property even if a boy is born after his adoption.[2]


Traditionally adoption has developed among the Hindus because Hindus attaches importance to a male child.Every Hindu was ordered to have his own natural child by scriptures, only failing which he was permitted to have the secondary child. According to the historical events a natural born boy was taken as the sole representative of a man and the approval by adoption of a secondary son was considered to be absolutely false.Hindus scriptures have therefore never legitimized a son other than the natural one born to be begotten by a man. In early Hindu philosophy, adoption of females was not given. It is proven from the fact that the scriptures did not authorize a wife or a daughter to perform a man's funeral rites or utter sacred texts.A female child was assumed to be unable to save the dead from hell or save him from the pain of afterlife.[3]


America has the longest tradition of adoption practice. A legal procedure, adoption in America provides the parent-child position where there is no parental bond between the two. Industrial revolution brought about the most important changes in the human history. From 18th to the 19th century major changes in agriculture, manufacturing, mining, transport, and technology had a profound effect on the socioeconomic and cultural conditions starting in the United Kingdom, and then subsequently spreading throughout Europe, North America, and eventually the world.[4]Modern American adoption law developed during the latter half of the 19th century due to Industrial Revolution, as a result of which large numbers of immigrant children who were mostly in need of care and safety were given assistance by the child welfare system. Sometimes these dependent children were housed in alms-houses with the mentally ill, and sometimes in foundlings plagued by high mortality rate.


The Orphan Train movement in America lasted from 1853 to the early 1900s for nearly 50 years, and placed more than one lakh kids. In America this social experiment is now known as the idea of foster case.In 1851, Massachusetts was the first state to enact legislation mandating judicial supervision of adoptions, and by 1929 all states had adopted some form of law on adoption. It became common practice during the early part of the 20th century to perform adoptions in secrecy and with locked documents, partially to shield the parties concerned from the social stigma of illegal biologics.[5]


During the 1950s several organizations sought to make the adoption process simpler for children. It was common for parents in America by the 1970s to wait 3-5 years after their initial application to a private adoption agency, until they had a healthy child with them.


After World War II, the adoption agencies started placing children from Europe, Korea and Japan with American families. That time, Korea was the largest source of foreign adoption. The Chinese Government's one child policy has provided American families with a new supply of infants.The 1960s Civil Rights Movement was followed by a increase in transracial adoptions between black children and white parents. But now transracial adoption accounts for a small percentage of all adoptions because the development of psychological and cultural identity in black children could not be fostered by white families.[6]


Chapter II : Classification of adoption

Adoption is nothing more than separating the infant from its original or adoptive parents and being cared for and grown up by the non-biological parents who are the parents adopted. The legal process of being a non-biological parent is adoption in a simple term.According to Manu, adoption is taking the son as a replacement for a male problem failure. Therefore, it is the transplantation of a son from the family in which he is born into a new family in which the natural and biological parents give him as a gift. Therefore, the adoptive son is taken as being born into a new family.He acquires all the rights and privileges in this new family, and breaks his relationship with the old one.

There are two classification of adoption, namely:

  • In country adoption

  • Inter country adoption

Adoption in country is nothing but adoption of the child within the world. In simple terms, adoption in the country means adoption by the adoptive Indian parents of the Indian boy. Adoption intercountry is nothing more than adopting the child from outside the country. Simply stated, inter-country adoption is where adoptive parents are foreigners from another country who are adoptive parents.With regard to the adoption of the In Country Indian Part, which is the Hindu Adoption And Maintenance Act, 1956 is clarified and with regard to the foreign dimension, this paper describes the Convention on the Rights of the Child, the Committee on the Rights of the Child and the Hague Convention. The rule of adoption emerged when the Smriti and Dharma Sutra literature dealt with the issue of adoption just meagrely. A Manu text describes an adopted son, and in a few verses specifies the effect of it. From Manu's text the effects of true adoption were elaborated in their commentaries by the medieval commentators. Vaishtha's Dharma sutra said, "You shouldn't give or accept a single son." This law has been seen by the private council as merely commendatory.The paper also clarified the various requirements for adoption under the Hindu Adoption And Maintenance Act of 1956 on the Indian side and the various requirements of the Convention on the Rights of the Child and the Committee on the Rights of the Child and the two committees established by the International Government.


Essential conditions of a valid adoption under Hindu Maintenance and Adoption Act, 1956[7] Section 6 of this Act provides for four necessary conditions for a legal adoption. There are as below :

1. The person adopting a child shall have the ability and also the right to adopt as provided for in Sections 7 and 8 of this Act.

2. The person giving the child in adoption is capable of doing as provided for in section 9 of this Act.

3. Section 10 of this Act provides that the individual adopted is capable of being taken into adoption.

4. The adoption shall be rendered in accordance with the other criteria set out in section 11 of the Act.


Section 7 of this Act addresses the ability of a person to whom it refers :

  • Every Hindu male who has a sound mind, and is not a minor, has the right to adopt.

  • He will adopt or provide a son or daughter if he has a wife who lives he will not adopt until his wife's consent is obtained. It's easy when the wife is converting to another religion or has given up marital life, or when she's unsound minded.

  • If a person has more than one wife living at the time of adoption then all the wives need to consent.


Section 8 of this Act speaks of a female's power, which it states :

  • Any Hindu female who has a sound mind and is not a minor has the right to take up adoption.

  • She may adopt or provide a son or daughter if she has her husband living she shall not adopt until her husband's consent is obtained. It is comfortable when the husband is converting to another religion or when he or she has left marital life or is unsoundminded.


Section 9: The person in adoption who gives the child should have the following capacities. The criteria are:

  • Anyone except the child's father or mother or guardian shall be allowed to give the child in adoption.

  • The father alone shall have the right to grant adoption if he is alive but such right shall not be exercised except with the consent of the mother who has not renounced the earth, converted to any faith or unsound mind.

  • The mother shall have the right to grant adoption, but such right shall not be exercised except with father's consent unless the father has renounced the earth, converted to another faith or unhealthy mind.

  • When both father and mother are dead or the universe is fully renounced, converted to another religion or unsound mind the child's guardian may give the child in adoption with the court's prior permission. The court should recognize the child's health, age, understanding and the child's will in this respect.


Section 10: Child skill is issued. It states that no individual shall be appropriate except:

  • He or she is a Hindu.

  • He or she is already adopted.

  • He or she did not reach the age of fifteen years because he or she cannot be adopted beyond fifteen.


Section 11: Another valid adoption requirement.

The adoption will take place in compliance with the other requirements set out in section 11. The terms are mandatory and must be adhered to. Terms are as follows:

  • Unless the adoption is of a son, the adoptive father or mother must not have the son of a Hindu son, son's son, or son's son living at the adoption time.

  • If the adoption is of a daughter, at the time of adoption the adoptive parent must not have a Hindu daughter or son's daughter living.

  • If the adoption is by a male and the adoption is a female, then the adoptive parent must be 21 years older than the adopted child.

  • Unless the adoption is by a woman and the adoption is a male then the adoptive mother must be 21 years older than the adopted child.

  • Two or more parents could not adopt the same child at the same time.


At the same time two or more parents were unable to adopt the same child.[8]

Adoption by intercountries is the mechanism by which:

1. A infant is adopted from a nation other than that of which the adoptive parents are citizens.

2. Carry the child home country, where the adoptive parents live indefinitely.

Inter-country adoptions differ from domestic adoptions because of the laws which allow the child to live where the adoptive parents live. In fact, the adopted child must have the same status and relationship with the adoptive parents as a child by birth to qualify as an adoption for immigration purposes into the United States.Though the process can be overwhelming, U.S. families adopt thousands of children per year in search of stable and caring homes from other countries.


Validity of the inter-country adoption was first debated in the landmark case of In Re Rasiklal Chhaganlal Mehta(x) whereby the Court held that inter- country adoptions under section 9(4) of the Hindu Adoption and Maintenance Act, 1956 should be legally valid in the laws of both countries. The adoptive parents must meet the provision of adoption law in their country and must have the requisite approval from the required authority to adopt, thus ensuring that the child does not suffer from immigration and acquire nationality in the country of the adoptive parents.Only after Laxmi kandh Pande v. Union of India, the Supreme Court gave some guidelines and two regulatory bodies called CARA and VACA were created by the government. According to the UN Convention on the Rights of the Baby, Article 21 states that it is the State Party's responsibility to test whether or not the adoption is made lawfully.


In Karnatka State Council for Child Welfare vs Society of Sisters of Charity St Gerosa Convent, the court held that the rationale behind finding Indian parents or parents of Indian origin is to ensure the good future of the children and that they grow up in Indian surrounding so that they can retain their culture and also their heritage. The key and prime concern is the best interest of the children.


In Varsha Sanjay Shinde & Anr. v. Society of Friends of the Sassoon Hospital and others, The BombayHigh Court held that once a child is accepted by an Oversees couple after the proper process has been followed, the same child cannot be shown to other Indian parents and that these Indian parents can then claim no right or privilege to obtain the child merely because they are Indian parents and they should be given preference over Overseas Indians and Foreign Couples.While the key issues were settled the Court held the petition pending in order to see the Court's compliance with directions to give the child to the Indian Overseas Couple and to ensure that the Indian Parents (Petitioners) also get a child promptly.


Therefore, the Court set out the following recommendations for in-country and inter-country adoptions in accordance with the 2011 Recommendations:

1. All the organizations concerned viz RIPA, Specialist Adoption Agencies, SARA, ARC, AFAA to follow the 2011 Guidelines carefully.

2. Although there is no particular number stated in the Guidelines as to the number of Indian parents to whom the child should be shown, the child should be shown to as many Indian parents as possible within a span of 3/4 weeks and, second, the child should be shown to only one parent at a time and not to multiple parents as has been done in the present case.

3. Only if, because of their knowledge, the child is not approved by Indian parents and the Adoption Agencies come to the conclusion that the child is unlikely to be taken by Indian parents upon adoption should it be revealed to foreign parents in that situation.

4. When the child is shown to the foreign parents, the list of priorities listed in the said Guidelines should be shown.

5. ARC and SARA will operate in cooperation with CARA, the Central Nodal Agency, not in dispute.


Chapter III : CHILD ADOPTION LAWS IN INDIA- ACT, ENACTMENTS, RULING AND DECISIONS

The Child Adoption in India is regulated by Laws, Rulings and Decisions:

Difference between the 1956 Hindu Law on Adoption and Maintenance and the 1890 Guardians and Wards Act

Here in India there is no general adoption law for citizens belonging to various faiths. Throughout India, only adoption-related legislation is regulated by The Hindu Adoption and Maintenance Act, 1956, which provides for the legal adoption of a child by Hindus.In India, only Hindus can legally adopt a child and persons of other faiths who are willing to adopt a child can only take the child in 'guardianship' under the terms of the 1890 Law on Guardians and Wards.


The GAWA refers to Catholics, Muslims, Parsis and Jews as it does not accept full adoption into their personal rule. Under the GAWA the post-adoption partnership is that of guardian and ward, respectively. Under GAWA adoption does not confer infant status on the adopted child, which is separate from HAMA.


The HAMA refers to Hindus, Jain, Sikhs and Buddhists. Under this act, adoption is irrevocable and grants the infant full status as a natural child born to the family, and grants the right to inherit the property as well. HAMA's only limitation is that parents would not be allowed to adopt a child of a different sex if they already have or foster the same sex child.Under the GAWA, adolescents turning 21 are no longer wards and assume separate identities. They have no compulsory inheritance rights. Adoptive parents must leave whatever they wish to bequeath to their children through a will which any child related to blood will challenge. The above enactments remain silent about the child who is orphaned, neglected & surrendered.There was no codified law that discussed the adoption of these types of children. As a result, some inconsistencies or discrepancies emerged about the custody, guardianship, or adoption of these types of children, which were detrimental to the children's interests.


The Juvenile Justice (Care & Protection of Children) Act 2000

The Juvenile Justice (Care & Child Protection) Act 2000 extends to all Indian Residents. This requires the adoption of two same-sex babies. It confers parent & child status and not father and father status. It also confers upon the adopted child rights available to the dad.Juvenile Justice (Care and Protection of Children) Act 2000 is intended for the care, security, growth and rehabilitation of juveniles in conflict with the law and of children in need of care and protection, as well as for the adjudication and disposal of other matters relating to them.It is similar to the 1954 Special Marriage Act, which requires everyone living in India to get married under that Act irrespective of the religion he follows[9]. It includes a common legislative structure for justice nationally and this act protects children up to the age of 18. There was no codified law in effect until JJ Act.


Constitution of India

India's government is seeking to give the children full rights and health. The Constitution of India provides for fundamental rights under Chapter III. Article 21 provides one of these rights, which reads as follows: "No person shall be deprived of his life or personal liberty except in accordance with the procedure laid down by law.[10]"Thus Article 21 gives every child a dignified life.

Article 24-" Fundamental Citizens 'Rights "includes the right to the abuse of children under 14 years of age.[11]

Article 44 of the Constitution states that: 'The State shall strive to establish a Uniform Civil Code for the people of India as a whole.'[12]That goal has yet to be completely realized.

Article 39 explicitly demands that the State guide its policy: to provide children with a safe environment and to ensure that they are provided with facilities. It gives them a sense of independence, and young people of integrity are shielded from oppression, labor of coercion, and moral and material abandonment.[13]


Impact of International Convention on CARA

This is widely known as a progressive statute in line with universal standards, such as the UN Convention on the Rights of the Child, of which the Government of India became a signatory in 1992.The State acknowledged responsibilities in signing the Convention to bring all state laws and policies into line with the core principles of children's rights, namely best interest, non-discrimination and the voice of children. The provision of infant adoption as an alternative to institutional treatment is included in this Act.


Chapter IV : ADOPTION AMONGS THE DIFFERENT RELIGIONS IN INDIA

While there is no general adoption law in India, a statute among Hindus does require it. Because adoption is a child's legal association, it is the topic of personal law. According to the Guardians and Wards Act, 1890, Muslims, Christians, and Parsis have no adoption laws and must seek court.In the event that the court has granted permission for the child to be removed from the country, adoption under a foreign statute, i.e. statute applicable to the guardian, takes place outside the country.

1. ADOPTION UNDER HINDU LAW

The Shastric Hindu Law found adoption more of a sacramental act than a secular one. Some judges think the purpose of adoption is twofold: 1) ensuring one's success of one's funeral rites and 2) maintaining one's lineage's continuance. Hindus claimed that one who died without a son would go to hell, and that it was only a son who could save his father from going to Poota.That was one of the reasons for begetting a son. The Hindu Adoption and Maintenance Act, 1956 currently regulates adoption under Hindu rule.


The Hindu Adoption and Maintenance Act of 1956 applies to only the Hindus, who are specified in Section 2 of the Act and includes any person who is a religious Hindu, including Buddhists, Jainas and Sikhs, and any other person who is not by faith a Muslim, Christian, Parsi or Jew.It also includes any legitimate or illegitimate child who has been abandoned by both his father and mother or whose parentage is uncertain and is born as Hindu, Buddhist, Jaina or Sikh in either case. Before this Act only a child could be adopted, but the Act allows for the adoption of a female as well. This Act applies to all of India except the Jammu and Kashmir states.


2. ADOPTION UNDER ENGLISH LAW

Thanks to the industrial revolution, the English adoption law changed, and it started to be accepted during the latter half of the 19th century. English Adoption Law is somewhat similar to Hindu Adoption Law. Adoption under English law is regulated by the 1976 Adoption Act, which is phased out according to the 2002 Adoption and Children Act.It also acknowledges the adoption of intercountries and has been ratified by the International Adoption Convention.

Adoption in England results in adopters and the adopted child having the same legal arrangement as if the child were born in marriage to the adopter.[14] The responsibility for making the adoption was given to English courts. The English Adoption Agencies usually place the child temporarily with potential adopters before the final application for adoption is made.[15]


Chapter V : Adoption under Muslim Law

Mohammedan law is of the opinion that adoption is unknown to Mohammedan law as is understood to Hindu law, which establishes a relationship of parentage. We take account of the notion of appreciation. A Muslim can't determine the child's paternity if he adopts a child he is not the actual father of.


According to various authors on Mohammedan law, adoption among Hindu is believed to establish a parental relationship that is unknown to the law of Mohammedan. Muslim law does not accept the validity of any filiation mode where it is recognized that the parentage of the adopted person belongs to a person other than the adopting family.[16]According to scholars such as Ameer Ali, Wilson and Abdur Rahim are also of the opinion that Mohammedan law does not accept adoption. They think the Holy Quran forbids adoption but the belief that adoption is not acceptable or that adoption is not known to Muslim law is based entirely on incorrect interpretation of Shariat law.[17]


Before the 1937 Shariat Act, customs acknowledged and allowed adoptions among some Muslims. Yet Muslim personal law does not necessarily extend to a individual in matters relating to adoption. Therefore, a Muslim never accepts the offspring of another as his own and the offspring is deemed by legal means to be the immediate descendent.If there is an adoption, then an adopted child keeps its own parental family name and does not change its name to match that of the adoptive family. Unlike Hindu law, adoptive parents are not granted natural parents status in any way.

[1]Neetish Kumar Handa, Adoption in Ancient India, (Visited on April 2, 2020) [2]Ibid [3]Ibid [4]R. Mathur, Legal Perspective in Child Adoption: A Clarion Call to Secularism [5]ibid [6]ibid [7]Family law in India by Prof. T.V. Subba Rao and Prof. Vijender Kumar, pg.326 [8]www.loctopus.com [9]M/S Shabnam Hashmi vs Union of India & Ors. (2014) 4SCC 1 [10]Article 21, Constitution of India [11]Article 24, Constitution of India [12]Article 44, Directive Principles of the State policy, Constitution of India [13]Article 39, Constitution of India [14]Overview of English Adoption Law, (visited on March, 30, 2020) Available at <hhtp://www.adoptionpolicy.org/pdf/eu-england.pdf> [15]ibid [16]Bhartiya, V.P., Muslim Law, 229(1996) (Syed Khalid Rashid’s Muslim Law 5th Ed., Lucknow: Eastern Book Company, 2009) [17]A.K. Bhandari, Adoption Amongst Mohammedans – Whether Permissible In Law, [Page No: 110-114] (2005) I.L.I Journal.