Adoption in India

Often, a childless couple or the couple having a child of particular gender may seek to adopt a  child of a different gender. A child plays an important role in the family and the family may feel incomplete without one. Additionally, for some religious purposes, a child also plays a significant role in the family.

Adoption can take place within the family or outside the family, and it can occur within the country or outside the country.

The welfare of the child is paramount in any adoption process. All legal systems have passed laws or issued guidelines from time to time for the smooth and proper adoption of a child. The courts have also delivered judgements to remove hurdles in the adoption process, always keeping in mind the welfare of the child.

Once the process of adoption is completed legally, the child has rights in the adopted family, and all ties with their biological family are terminated. Orphaned or abandoned children are also adopted under the provisions of Juvenile Justice Care and Protection Act.

In 2015, the Central Government has empowered the Central Adoption Resource Authority (CARA) to centralize the adoption process. The empowerment aimed to:

• Help CARA maintain several adoption agencies, a registry of children, a list of potential adoptive parents and match them with children before adoption.
• Tackle trafficking issues and corruption by allowing shelters for children and NGOs to give children for adoption directly after receiving a no-objection certificate from CARA.

Regulation 5 of Central Adoption Resource Authority covers eligibility criteria for parents who may potentially plan to adopt a child.

Recent Developments in the Adoption Process

In July 2021, the Parliament of India passed the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021.

• The Bill states that instead of the Court, the District Magistrates (DMs) and Additional District Magistrates will issue adoption orders.
• This amendment aims to eliminate delays in adoption due to the huge backlog of pending cases in courts. After a gazette notification was issued in August, the amendments came into effect in September 2021, which stated that all cases pertaining to adoption matters pending before a Court shall be transferred to the District Magistrate.

The amendment also empowers the DMs and makes them responsible for inspecting and assessing the functioning of district child protection units, child welfare committees, child care institutions, specialized juvenile police units, juvenile justice boards, etc.

Age Limits for Adoption

Adoptive parents cannot adopt a child of any age but must adhere to some legal age guidelines:

Age of the Child	Maximum Composite Age of Couple (Prospective Parents)	Maximum Age of Single Prospective Parent
Up to 2 Years	85 years	40 years
Above 2 and up to 4 years	90 years	45 years
Above 4 and up to 8 years	100 years	50 years
Above 8 and up to 18 years	110 years	55 years

Note:

• The minimum age difference between the child and either of the adoptive parents must not be less than 25 years.
• Only after a couple has had 2 years of stable relationship can they choose to adopt a child.

Capacity of a Man to Adopt

A man planning to adopt a child must:

• Be of sound mind.
• Be an adult and not have a living son or a daughter at the time of adoption.
• Has the consent of his wife. Without his wife’s consent, the adoption will be considered ‘void.’
• Have consent of all his wives, if he has more than one wife.

Note: A single man cannot adopt a female child.

Capacity of a Woman to Adopt

A woman willing to adopt a child:

• Must be of sound mind.
• Must be an adult.
• If she has changed her religion, renounced the world or her husband is dead, no consent is needed for adoption.

Adoption Procedure in India

Hindu Adoption and Maintenance Act, 1956 (HAMA)

The Hindu Adoption and Maintenance Act, 1956 deals with the legal proceedings related to child adoption in India along with the legal obligations that follow adoptions, such as taking care of wife, children and in-laws.

According to Hindu Shastras, an adopted son should be the reflection of an actual son and demands that all the paternal and maternal relations are to be fulfilled with the adopted son as well.

As per the Act, it applies to ‘any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.’ It also applies to ‘anyone who is a Buddhist, Jain or Sikh’ and ‘who is not a Muslim, Christian, Parsi, or Jew by religion.’

• It is a parent-centric law that provided son to son-less families for various reasons like succession, inheritance and continuation of the family name. Later on, adoption of daughters was also incorporated.
• It also includes any child, legitimate or illegitimate, that has been abandoned by their mother or father or whose parentage is not known and raised as a Hindu, Buddhist, Jain, or Sikh.

Under the Hindu law, no adoption is considered valid unless:

• Person adopting is lawfully capable of taking in adoption.
• Person adopted is lawfully capable of being taken in adoption.
• Person giving in adoption is lawfully capable of giving in adoption.
• The adoption is completed by actual giving and taking.

Under Section 16 of HAMA, a registered document of adoption would represent the fact that the adoption has been done in complete compliance with the Act and all the necessary ceremonies have been performed.

Note: The HAMA Act extends to the whole of India except the state of Jammu and Kashmir.

Juvenile Justice Act, 2021

The Juvenile Justice Act deals with laws related to children that are allegedly in conflict with the law and children that need care and protection. Anyone applying for adoption must register on CARA’s portal, after which specialized agencies will conduct a home study and prepare a report of the same.

Once the eligibility of the adoptive parents is confirmed, they can adopt any child who is legally free for adoption. As per HAMA, a ‘dattaka hom’ ceremony or an adoption deed or a court order is all you need to receive irrevocable adoption rights for a child.

Under Section 56 of the JJ Act Adoption has been defined as:

"(1) Adoption shall be resorted to for ensuring right to family for the orphan, abandoned and surrendered children, as per the provisions of this Act, the rules made thereunder and the adoption regulations framed by the Authority.

(2) Adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the provisions of this Act and the adoption regulations framed by the Authority.

(3) Nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act, 1956 (78 of 1956).

(4) All inter-country adoptions shall be done only as per the provisions of this Act and the adoption regulations framed by the Authority.

(5) Any person, who takes or sends a child to a foreign country or takes part in any arrangement for transferring the care and custody of a child to another person in a foreign country without a valid order from the [District Magistrate], shall be punishable as per the provisions of section 80.

As per section 56(3) of JJ Act, nothing mentioned in the JJ act will apply on the adoptions done under HAMA. This over-riding effect of section 56(3) on all the other provisions of the JJ act that allows adoption under HAMA to be free from any provisions of JJ Act.

The Guardian and Ward Act, 1890

The personal laws of Muslims, Christians, Jews, and Parsis do not have an enabling law to adopt a child legally or the provisions to recognize complete adoption. Anyone from these religious backgrounds can only apply to take a child under their guardianship under the Guardian and Wards Act (GWA), 1890.

Note: Unlike HAMA, children adopted under GWA are not recognized as the child of the parents that have adopted them or be able to take their name or inherit their property by right.

Adoption under the Muslim Law

Islam does not recognize adoption. On the contrary, for Muslims, adoption refers to the transplantation of the son from the family he was born into another family by gifting him to his adopting parents.

Note: As there is nothing in the Mohammedan Law similar to how adoption is recognized in the Hindu system, acknowledgement is the closest thing to adoption for them.

Adoption under the Christian and Parsi Laws

These communities do not recognize adoption and can only adopt a child from an orphanage by getting a permission from the Court under the Guardian and Wards Act, 1890.

Note:

• Under the Act, Christians are only allowed to take a child under foster care. Once they turn into an adult, they are completely free to break away from familial ties with the adopting family.
• A child adopted by a Christian or Parsi family does not have any legal right of inheritance.

Can You Adopt a Child If You Already Have One?

Yes, even if adoptive parents have a child of their own, they may choose to adopt another. However, as per the HAMA Act, such parents can only adopt a child of the opposite gender as their child, i.e., if you have a boy, you may only adopt a girl, and vice versa. On the other hand, the GWA and the Justice Juvenile Act do not have any similar provisions for adoption. Furthermore, if the child being adopted is old enough to express their views, their opinion shall be taken into consideration.

Can Someone Single Adopt a Child?

Adoption rules for single adoptive parents are as follow:

For Hindus, Sikhs, Jains, and Buddhists (under HAMA)

• Any male is allowed to adopt a child if he has a sound mind and is not a minor. If living with a live-in partner, their consent would be required for adoption, unless they are declared unfit by the court to do so.
• Any female is allowed to adopt a child if she has a sound mind and is unmarried.

For Muslims

• While Muslims do not recognize adoption, under Section 8 of the GWA, they may take a child under their guardianship.

For Christians and Parsis

• While Christians and Parsis do not recognize adoption, they may keep a child under foster care after getting a legal permission from the court under the provisions of GWA.

Can Foreign Nationals Adopt a Child in India?

A foreigner may apply to adopt a child in India under the provisions of GWA, where the court may appoint the foreigner as the guardian of the child they are adopting. The foreign national may take the child to their country and adopt them as per the laws of their country. They must submit the following supporting documents along with the application:

• Recent family photograph.
• Marriage certificate.
• Declaration of the applicants’ physical fitness that has been duly certified by a medical doctor.
• Declaration of the applicants’ financial status with verifying documents like income tax returns, employment certificate, bank references, and details of properties owned by the applicant.
• Declaration of willingness to adopt the child.
• An undertaking to adopt the child as per their country’s laws at the earliest, but not later than two years of the child’s arrival in their country.
• A signed power of attorney in favor of a Social or Child Welfare Agency in India – so that they can monitor the case.
• An undertaking assuring to send the Indian agency and Court a progress report and photograph of the child:

1. Monthly for the first year.      

2. Quarterly for the second year.      

3. Half-yearly for the next five years.

Inter country Adoptions:

Inter country adoptions are regulated by section 60 of the Juvenile justice act:

Section 60, JJ Act: Procedure for inter-country relative adoption

(1) A relative living abroad, who intends to adopt a child from his relative in India shall obtain an order from the 1[District Magistrate] and apply for no objection certificate from Authority, in the manner as provided in the adoption regulations framed by the Authority.

(2) The Authority shall on receipt of the order under sub-section (1) and the application from either the biological parents or from the adoptive parents, issue no objection certificate under intimation to the immigration authority of India and of the receiving country of the child.

(3) The adoptive parents shall, after receiving no objection certificate under sub-section (2), receive the child from the biological parents and shall facilitate the contact of the adopted child with his siblings and biological parents from time to time.

Any PAP’s(Prospective adoptive parent) who is eligible to adopt under HAMA as well as Juvenile justice act has the liberty to choose amongst the both statute however if any PAP’s wishes to relocate their child to foreign land then in that case such Inter-country adoptions are not allowed through the process of HAMA, because of which the liberty to choose the statute defies and the only option remains is through Juvenile justice Act and the Central regulatory authority that is Central Adoption Resource Authority (CARA).

(CARA: In the case of Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244, the Supreme Court, prior to the enactment of the JJ Act, 2000 examined the complexities of inter-country adoptions. The said case resulted in the recommendation for the creation of an agency to oversee such adoptions. This suggestion, combined with the Hague Convention's guidelines, contributed to the formation of CARA.

Later CARA was designated as the Central Authority for implementation of the Hague adoption convention.
Till 2000, Juvenile Justice Act’s provisions related to adoption were not very clear and comprehensive but in the 2015, the J.J. act made the laws regarding adoption process complete and streamlined. The law clearly states that all inter-country adoption will take place only as per the provision of the Juvenile act, and adoption regulations framed by CARA.)

Due to this adoption issue that had raised with the PAP’s who wished to adopt on religious grounds but also wished to relocate their child to foreign land were facing the issue as they weren’t able to adopt under the regulations of HAMA for inter-country adoptions, but in a recent judgment of R.K. and Ors. Vs. Central Adoption Resource Authority and Ors.(2021) the Hon’ble Delhi High Court observed the gravity of the situation and hence decided on the following:

“95. If any of the adoptive parents are located abroad, the Committee may interact with them through any virtual mode to record their satisfaction. Parties in these writ petitions shall accordingly appear before the Committee constituted by CARA for this purpose on 15th September 2021.

96. In terms of the directions issued above;

a. The Secretary, Ministry of Women and Child Development, Government of India shall file a report before this Court as to the manner and mode of creating a permanent mechanism to deal with inter-country adoptions under HAMA, both direct and indirect and place the said report before this Court within a period of two months.

b. There are several errors on the website of CARA in respect of HAMA adoptions. CARA shall carry out corrections in its website and place a report before this Court within eight weeks;

c. CARA shall also frame guidelines for the processing of NOCs for inter-country adoptions under HAMA and make available forms for this purpose on the portal. Let the draft guidelines and the timelines for activating the portal be placed on record by means of a status report within two months. Details of the special Committee constituted to deal with HAMA adoptions shall also be specified in the report;

d. A status report in respect of each of the writ petitions and the processing of grant of NOCs be also filed at least one week before the next date of hearing.”

These recent developments in inter country adoption process CARA and the Ministry of Women and Child Development issued a notification which stated Procedure for Children adopted under the Hindu Adoption and Maintenance Act, 1956, by Parents who desire to relocate the child abroad.

Chapter VIII of the Adoption Regulations, 2022 has laid down procedure for children adopted under HAMA 1956 by parents who desire to relocate the child abroad. In the Post 17th September 2023 cases of HAMA, AFAA / Central Authority / Indian mission may register on the CARA website called CARINGS https://carings.wcd.gov.in/. In such cases all the Prospective Adoptive Parents who wish to adopt their children under HAMA have to approach the AFAA or Central Authority or Indian mission for registration on the CARINGS portal and follow the procedure as mentioned in the Adoption Regulations 2022.

Procedure after 17th September 2021:

In the Post 17th September 2023 cases of HAMA, AFAA/ Central Authority / Indian mission may register on the CARA website called CARINGS https://carings.wcd.gov.in/ All the Prospective Adoptive Parents who wish to adopt their children under HAMA have to approach the AFAA/ Central Authority / Indian mission concerned for registration on the CARINGS portal and follow the procedure as mentioned in the Adoption Regulations 2022.

The following documents may be submitted to the AFAA/ Central Authority / Indian Mission for sponsoring the PAP to CARA for adoption of the child. a. Photograph of Applicant(s)/Prospective Adoptive Parent(s) b. Home Study Report (HSR) of PAP(s) c. Passport (Male PAP) d. Passport (Female PAP) e. Birth Certificate (Male PAP) f. Birth Certificate (Female PAP) g. Proof of Residence of PAPs h. Marriage Certificate (in case of couple) i. Undertaking of Indian mission in case of non-Hague country j. Overseas Citizen of India card of Male PAP (if applicable) k. Overseas Citizen of India card of Female PAP (if applicable) l. Permission of the receiving country as per Article 5 of the Hague Adoption Convention (application in case of Hague Convention ratified country) m. Permission of the receiving country as per Article 17 of the Hague Adoption Convention (application in case of Hague Convention ratified country) The above mentioned Protocol is for submission of documents to CARA for processing of HAMA applications for relocation of child aboard is placed here for the information/ approval of the Steering Committee of CARA.

Issues related to Adoption in India

Apart from delays, there are some other issues that have been prominently hindering adoption in India:

• Lengthy Process: The adoption process in India is tedious; may take up to three years to conclude. This is primarily due to the huge number of parents waiting to adopt from a small pool of children that are available for adoption.
• Trafficking: Child trafficking is a major issue in adoption cases.
• Conflict: While HAMA is responsible for governing adoptions, aspects related to orphans are dealt by the Ministry of Women and Child Development. This results in creating a major conflict in the adoption process.
• Emotional Trauma: Some children bear emotional trauma having faced crisis like losing their parents or family or being separated from them due to desertion.
• Limited Adoption: As the Government has not directed ample resources towards getting children registered, hundreds of children remain unavailable for adoption by prospective parents.
• Mindset: Some Indians wish only their ‘blood and genes’ in their child; some believe that only couples that are ‘infertile’ choose to adopt a child. Again, most parents seek to adopt a child between zero and two years old, as they believe that this is the age for child-parent bonding. Further, prospective adoptive parents have significant worries when it comes to adopting children with disabilities.

Conclusion

Here are a few suggestions that can help bring a positive change in matters of adoption in India:

• Abandoned children, as per government guidelines, should be taken to a Child Care Institution (CCI) by the District Child Protection Officer and if their parents are not identified, they should be placed for adoption. Non-registered CCIs, which cannot link to adoption agencies due to regulations, are institutions where children are quite likely to get poor care, face physical and sexual abuse and may even be trafficked. Such institutions must be shut down immediately to avoid the occurrence of any abuse towards these children.
• The Government should devote more resources towards setting up more CCIs and register and move millions of children off the street.
• There should be adequate messaging to the public to change the mentality that focuses on ‘my child has to be of my blood’.
• Old adoption cases must not be sent back to the courts but to the District Magistrate. The courts should only be asked to deal with petitions filed after the implementation of the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021.

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