ADOPTION LAWS IN INDIA

OVERVIEW OF ADOPTION LAWS IN INDIA

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“Little souls find their way to you, whether they’re from your womb or someone else’s.”

INTRODUCTION

To have a child is a parent’s biggest contentment. Adoption of a kid seems to be the most efficacious way of attaining this happiness. As Richard Bach said, “The bond that links your true family is not one of the blood but of respect and joy in each other’s life”.[1] Thus, the adoption arises as to the panacea to those who crave for children’s plight. Adoption can be a beautiful choice not only for single – parent and childless partners but also for the vagrant kids. It enables a parent – child relationship which is beyond every blood relationship.

In India, custom and practice of adoption can be traced back to the ancient times. The epics like Ramayana and the Mahabharata are two such brilliant texts of Hinduism which indicates the mention of adoption. Commonly, wherein an absence of male progeny strike, the partners went for taking up a male child to designate him as a legal heir. As in Hindu religion, the children are important and, the spirit of deceased parents can simply accomplish salvation at the off risk that an individual has a child to light the memorial service of fire.

Back to the centuries, only son can be adopted. Hindu mythology were of the opinion that only son can be adopted for the lineage and for the performance of one’s funeral rites. Even in Dharmashastras[2] only son is certified for an adoption and Manu defines adoptive son as follows – a son equal in caste and affectionately disposed whom his mother or father give with water at the time of calamity, is called Dattrima son”.[3]

THE WORD “ADOPTION”

The word ‘Adoption’ is extracted from the old French word ‘Adoptare’ which means to choose for oneself. Currently, Adoption is the established law and a legal process of giving and taking of child to non-biological parent. It is a way that creates a parent child relationship between persons not related by blood. The ward is apprehended as being born in the new family and receives rights, responsibilities and social position there only, and his rope with the other family terminates.

ROLE OF CENTRAL RESOURCE AUTHORITY IN ADOPTION

CARA is a statutory and autonomous body of Ministry of Women and Child Development[4] in the Government of India. It is a nodal body for adoption which controls and monitors the adoption process in the country. Essentially, it covers the adoption of surrendered, orphan and abandoned children. It is a central authority to deal with the inter country adoption.

ADOPTION LAWS IN INDIA

UNDER HINDU LAW:

Every child has a right to have family and there is no finer action for parentless and homeless children than adoption. Adoption in India is carried out under different Acts. Adoption in our country falls under the extent of personal laws, and owe to the prevalence of manifold religions practiced. Hindu adoption is ruled by the Hindu Adoption and Maintenance Act, 1956. A child of a different caste may also be adopted. Muslims, Christians, Parsis and Jews are governed by the Guardians and Wards Act, 1980, as formal adoption is not permitted in these religions.

 Hindu Law is the one and only law which govern adopted child as being equivalent to a natural born child. Under the old law, only a male child could be adopted and an orphan could not be adopted and restrictions were imposed based on the Caste[5] and Gotra[6]. A female child could not be adopted. But such restrictions have changed with the span of time. Such gender prejudices have been minimized in today’s modern society. In the contemporary law of Hindus, every Hindu male or female has the position to make an adoption on condition that he or she has accomplished adulthood and are of sound mind. Most of these laws, rules and regulations have been included in the Hindu Adoption and Maintenance Act of 1956. The objectives of Adoption are, the person will get old age protection by the adopted child, he will perpetuate family name and fame, family property will also be secured and the childless parents will get a person who will perform their death rites. The Act of 1956, includes certain provisions that specifically deals with adoption, these are:

  • Requisites of valid adoption[7]
  • Capacity of male to take in adoption[8]
  • Who may give in adoption?[9]
  • Who may be adopted?[10]

The Act named, Hindu Adoption and Maintenance Act of 1956 was mostly pertinent for the Hindu society. Another law had to be made which was sensitive to the personal laws of the other religions which did not fall under the Hindu Adoption and Maintenance Act, 1956. This gave birth to the Guardians and Wards Act, 1890. This Act was the only law to supersede all the other laws concerning the same. It became the only non – religious universal law regarding the guardianship of a child, appropriate to all India.

UNDER MUSLIM LAW

Adoption under the Muslim law is not acknowledged. Muslims do not have their personal law of adoption and must therefore advance towards the Guardianship and Wards Act. Mohammedan are of the view that Adoption among Hindus establish the connection of parentage, which is untold to the Muslims. They believe that the Holy Quran forbids adoption but the parody that adoption is not acceptable or unknown to Muslims is totally constructed on the inappropriate administration of Shariat Law. Before the Shariat Act, 1937[11] the adoptions by certain Muslims were acknowledged and permitted by customs. However the personal law does not automatically apply to an individual. Thus, Muslims never recognizes another’s child as their own. If the Adoption happens, the adopted child continues his or her own biological family name and does not make changes in his or her name to that of the adoptive family. On the other hand, the adoptive parents do not have the status of natural parents.

ADOPTION UNDER CHRISTIANS AND PARSIS

The laws of Christian and Parsis do not recognize the provisions of the Adoption. A person who belongs to these religions can adopt a child from orphanage with the permission of the court under the Guardians and Wards Act, 1890. A Christian person has no adoption law. Inspite, the adoption is a lawful way of taking a child; it shapes the subject matter of personal laws. Christian and Parsis both don’t have adoption laws and they proceed towards court under the Guardians and Wards Act, 1890. Therefore the person can take a child under a said Act only for foster care and when the child grew up or attain the age of majority, has the right to break all the connections between him and the guardian. He will not possess any right of inheritance.

CONCLUSION

Adoption is a noble cause, which brings happiness to the kids, who were abandoned, or orphaned. As the children are the supreme assets for nation building. This gives a possibility for the benevolent side of human development to shine through. Thus, every child should have right to be given in adoption. The laws for Hindus changes enormously. Position of the girl as well as woman changed with the passage of time. These provisions grew as per the need of the changing society.

Adoption brings happiness for the adoptive child as well as for the adoptive parents. It is the program where child is treated and will get every right as similar to the natural born child. There is no difference between the adopted and natural born child. The objective is to give all kids with equal opportunities for growth, as this will serve bigger aims to reduce inequality and increase social justice.

“Adopting one child won’t change the world; but for that child, the world will change”.


[1] Richard Bach, Messiahs handbook : reminders for the advanced soul : the lost book from illusions (2004)

[2] Genre of Sanskrit theological texts refers to the treaties of the Hinduism on dharma.

[3] RK Agrawal, Hindu Law, 176 (Central Law Agency, 25th ed. 2016)

[4] A branch of the Government of India is an apex body for the formulation and administration of the rules and regulations and laws relating to women and child development in India.

[5] A social stratification characterized by endogamy, hereditary transmission of a style of life which often includes an occupation, ritual status in hierarchy, and customary social interaction and exclusion based on cultural notions of purity and pollution.

[6] A Gotra is a lineage, akin to a family name, but the given name of a family is often different from its Gotra, and may reflect the traditional occupation, place of residence or other important family characteristic rather than the lineage.

[7] Section 6 of the Hindu Adoption and Maintenance Act, 1956

[8] Section 7  of the Hindu Adoption and Maintenance Act, 1956

[9] Section 8 of the Hindu Adoption and maintenance Act, 1956

[10] Section 9 of the Hindu Adoption and Maintenance Act, 1956

[11] Muslim Personal Law (Shariat) Application Act, 1937, that deals with marriage, succession, inheritance and charities among Muslims.

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