What is adoption?
Adoption is a legal process of giving and taking of child to a non-biological parent. It is a process that creates a parent – child relationship between persons who are not related by blood.
The purpose of adoption is to provide a child, who cannot be cared for by his biological parents, the care of a substitute family. The adoptive family of the child has the responsibility to provide him proper care and protection of a family. An adopted child is entitled to all privileges similar to that of a natural-born child, including the right to inherit, in the new family.
The child’s relation with the old family comes to an end. It is simply a transplantation of a son from the family where he/she was born, to another family where he/she is given by his natural parents, as a gift. Adoption is done based on the principle that every child has a right to have a family.
The laws that govern the process of adoption in India
The laws that govern the process of adoption/guardianship in India are: –
- The Guardians and Wards Act, 1890 (GWA),
- The Hindu Adoption and Maintenance Act of 1956 (HAMA) and
- The Juvenile Justice (Care and Protection of Children) Act (JJ Act), 2015
The first and the third law listed above are secular laws applicable to all citizens irrespective of religion but the second one is a personal law applicable to Hindus alone.
The first one deals with guardianship whereas the other two laws deal with adoption as such.
Muslims, Christians, & Parsis have to opt for guardianship
No uniform law exists for adoption in India. Muslims, Christians, and Parsis do not have their adoption laws. Therefore, they have to opt for guardianship, rather than adoption, of a child under the GWA, in order to circumvent the absence of an adoption law.
Guardianship under GWA
Anyone, including a Christian, Jew, Parsi or Muslim, can be declared as a guardian of a child under the GWA.
A guardian, under the act, is a person who is endowed with the care of the minor or his property, or both. What the court grants is a guardian-ward relationship between the two.
It is the District Court or the Family Court in the area which appoints an individual as legal guardian, when applied for by a petition. That, in turn, becomes something similar to adoption, even if it is not exactly adoption under the other laws. The relation established between the person and the child, involved in this matter under the act, is guardian and ward.
The application for guardianship is to be made by a petition signed and verified in the manner prescribed by the Civil Procedure Code, under Section 10 of the GWA. The application must be accompanied by a declaration of willingness of the proposed guardian signed by him and attested by at least by two witnesses, as well. The Collector can also make an application.
The main consideration that the court looks into in the granting of guardianship is the child’s welfare. The minor’s preference will also be taken into consideration.
When the child attains the age of eighteen years, then he/she need not remain as a ward but can become an independent person. The child remaining as a ward under the act does not have automatic right of inheritance.
Even a foreigner can also get the guardianship of a child. If the guardian wants to take the child to outside the country, he shall take the court’s permission and that process will be governed under the adoption process in the foreign law.
Hindus have HAMA as a specific adoption law
The Hindus, Jains, Sikhs, or Buddhists can legally adopt a child under the HAMA.
The HAMA describes the procedure for maintenance and the rights, privileges and responsibilities attached with the relationship of adopted child and adoptive father.
In order to make adoption valid, the child should be a Hindu by religion. He or she should not have been adopted earlier. He or she should remain unmarried as well.
Essential requirements of a valid adoption process under the act are:
- Adoptive father and mother must have the capacity and right to do so
- Person who is giving a child must have the legal capacity to do so
- Person who is giving in adoption must be capable for taking the child
The Hindu male adopting a child must be of sound mind and must have attained the age of majority. If his wife is alive then he should adopt the child with the consent of his wife, unless she completely renounced the world, or she ceased to be Hindu, or a competent court declared her incompetent. In case he has more than one wife, he should take the consent of all of them.
The Hindu female adopting a child must be of sound mind and must have attained the age of majority. If her husband is alive then she should adopt a child with the consent of her husband, unless he completely renounced the world or he ceased to be Hindu or a competent court declared him incompetent.
The act recognizes the right of a widow to adopt a son or a daughter by her. The result of adoption is that for all practical purposes, the adoptee in effect becomes the son or daughter not only of the widow but also of her deceased husband as well
The person giving a child in adoption must be capable of giving in adoption. No person other than the mother and father of a child has the capacity to give a child in adoption. Both of them have equal rights to give a child in adoption. If both the father and the mother died, or completely renounced the world, or competent court declared them as unsound, the guardian of the child has the right to give a child in adoption.
If an adoption is by a male and the adopted child is female, the adoptive father should be at least twenty-one years older than the child. And if the adoption is by a female and the adopted child is a male, the adoptive mother should be at least twenty-one years older than the child.
The process of adoption under the law does not insist for having any ritual, religious ceremony or even a deed of adoption, but actual giving and taking of the child alone is required. Any payment in regard to adoption is an offence which can be prosecuted with the previous sanction of the state government.
The adoption can be done by a registered Deed of Adoption indicating the giving and taking of the child in adoption, under Section 16 of the act. The court will presume the Deed of Adoption as a proof of the act of giving and taking of the child in adoption, unless it is disputed and proved otherwise by any other person.
The Juvenile Justice (Care and Protection of Children) Act
The purpose of the act is to provide basic need, care, protection, development, treatment and social re-integration for the children in need of them. Under this act a child, who is abandoned, surrendered or orphan, can be adopted for his/her rehabilitation. The status of the adoptive parent and adopted child will be as parent and child, but not guardian and ward.
If a child in the need of care and protection is found abandoned or deserted by his parents or guardian, one has to inform the matter to any of the following agencies duty bound to deal with the child leading to its adoption:
- CHILDLINE (Toll Free Number-1098)
- Local Police
- Any Specialized Adoption Agency (SAA)
- Child Welfare Committee (CWC)
- District Child Protection Unit (DCPU).
Government agencies regulating adoption
The Central Adoption Resource Authority (CARA), a statutory and autonomous body of the Ministry of Women and Child Development (GoI), is the nodal agency for regulating adoption. It controls and monitors the adoption process in India.
It deals with the adoption of surrendered, orphan and abandoned children, including the inter country adoption, as well. Its guidelines shall apply to all matters of adoption – adoption of abandoned, surrendered or orphan child (see the CARA Guidelines in 2017 linked below).
The state government have established specialized Adoption Agencies (SAA) in each district. The Children’s institutions and homes established by the state government or voluntary organizations for children in need of care and protection under the JJ Act, should ensure that the children in them are declared completely free for adoption by the Child Welfare Committee (CWC), a quasi-judicial committee in the district, under Section 38 of the JJ Act.
Conditions for adoption
No child – an orphan, abandoned or surrendered child – shall be offered or given for adoption unless it is declared by the CWC to be legally free and eligible for adoption.
On receipt of an abandoned child, the DCPU puts up an alert with the child’s photograph and details in state-wide newspapers/website, and request the local police to trace the parents. The abandoned child can be considered legally free for adoption only after the police has given a report stating that the parents of the child are non-traceable. A child is considered abandoned, on being deserted or unaccompanied by parents or a guardian, and when CWC declares the child as abandoned.
A child is declared an orphan when the child is without a legal parent or a guardian or the parents are not capable of taking care of the child.
A surrendered child is one who has been relinquished by the parents or the guardian and is so declared by the CWC.
Eligibility criteria for prospective adoptive parents
The prospective adoptive parents shall be physically, mentally and emotionally stable, financially capable and shall not have any life-threatening medical condition.
Any prospective adoptive parents, irrespective of his marital status and whether or not he has biological son or daughter, can adopt a child subject to following, namely: –
- the consent of both the spouses for the adoption shall be required, in case of a married couple;
- a single female can adopt a child of any gender;
- a single male shall not be eligible to adopt a girl child;
No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship. The couples having three or more children shall not be considered for adoption except in case of special need children. Additional details are available from the website of CARA.
Online procedure for in-country adoption under JJ Act
The Indian prospective adoptive parents, irrespective of their religion, if interested in adopting an orphan or abandoned or surrendered child, shall apply for adoption to SAA through Child Adoption Resource Information and Guidance System (CARINGS) – it is a website – by filling up the online application form and uploading the relevant documents to register themselves as prospective adoptive parents.
The prospective adoptive parents shall get their registration number from the acknowledgement slip and using it they can view the progress of their application.
The prospective adoptive parents shall select a SAA nearest to their residence in their State of habitual residence for preparing a Home Study Report of their home. The Home Study Report shall be completed, within thirty days from the date of submission of requisite documents by the adoptive parents and the report shall be shared with the prospective adoptive parents.
The prospective adoptive parents shall be declared eligible and suitable by the SAA based upon the Home Study Report and supporting documents.
The prospective adoptive parents then shall be provided with online profile of three children in one or more times. The profile will include the photographs, Child Study Reports and Medical Examination Reports, in their preference category, through the CARINGS.
After viewing the profile of the children, the prospective adoptive parents may reserve one child within a period of forty-eight hours for possible adoption. The other children would be released by CARINGS for other prospective adoptive parents in the waiting list.
Then the SAA shall get the details of the prospective adoptive parents through CARINGS and fix an appointment with the prospective adoptive parents for matching and assessing the suitability of the prospective adoptive parents for adoption, by the Adoption Committee, specified in Section 2 (1) (2) of the Adoption Regulation 2017. The committee shall prepare the minutes of the meeting and its decision.
While accepting the child, the prospective adoptive parents shall sign the Child Study Report and Medical Examination Report, in the presence of the social worker or chief functionary of the SAA. The SAA shall record the acceptance of the child for adoption by the prospective adoptive parents, in the CARINGS.
On acceptance of the child by the adoptive parents, the SAA shall take the child to a pre-adoption foster care centre so as to enable the adoptive parents to understand the habits of the child from the nursing staff before taking the child home.
The SPA shall file an application in the District Court concerned, with relevant documents in original within ten working days from the date of matching of the child with the prospective adoptive parents. The court shall hold the adoption proceeding in-camera and dispose of the case within a period of two months from the date of filing of the adoption application by the SAA.
The SAA shall obtain a certified copy of the adoption order from the court and forward it to the prospective adoptive parents within ten days. No deed of adoption is required as per the act.
The SAA, which prepared the Home Study Report, shall prepare the post-adoption follow-up report in every six months, for two years from the date of pre-adoption foster placement.
More details relating to the adoption procedures are available on the CARA website.
Additional reading
- CARA: Adoption Regulation, 2017
- CARA (Govt of India): Bench Book for Adoptions
- Online website of Child Adoption Resource Information and Guidance System
- Adoption Procedure for Resident Indians
- Kerala Juvenile Justice (Care and Protection of Children) Rules, 2014
- The Juvenile Justice (Care and Protection of Children) Amendment Act, 2021.
