Adopting a child in India under different Personal Laws

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Children are considered as a blessings from god and a bundle of joy to the parents. Not every parent or couple has got the pleasure to become a biological parent. On the other hand nearly 60,000 children’s in India are abandoned every year and such abandoned children are taken in adoption by adoption agencies where these abandoned children can get a better life who are the future of our nation.

Tracing the history of adoption to ancient times we can cite few examples like Moses was adopted and King Octavian Augustus was also adopted. First and foremost law that was passed on adoption was by England and Wales i.e. Adoption of Children Act, 1926.

Nowadays the parents or couples who cannot have their own biological children due to numerous reasons, go in for adoptions and the rate of it has gone up in these days as the mentality of people is changing from orthodox to modern with a lot western influence. In India, adoption is the subject matter of personal laws of different sections of the society like Muslim, Christians, Hindus, Parsis. At present The Hindu Adoption and Maintenance Act 1956 governs the adoption under Hindu law.  Section 2 of the said Act extends to only Hindus and it states that a person who is a Virashiaiva, Lingayat, or a Buddhist, Jain, or Sikh by religion is a Hindu. Under this act a male and female both genders can take a child in adoption and it extends to whole of India except Jammu and Kashmir. An adoption is complete only if the person who is adopting must be capable of taking the child in adoption who is of sound mind and a major person and a child that is adopted also must be a Hindu and not completed 15 years. If a woman who is unmarried, or divorced or widowed or if her husband suffers from certain disabilities she can adopt a child. Codified laws to relating minority and guardianship of Hindus has been stated under The Hindu Minority and Guardianship Act, 1956.

Under Guardians and Wards Act 1890 that has been framed for Christians, Parsis Jews and Muslims where their personal laws do not state completely on adoption.  In Muslim religion i.e. Islam there is nothing that recognises adoption but a child can be adopted from an orphanage with court’s permission under this Act. Under Muslim law father has the dominant position which states the distinction between guardianship and custody and in absence of father an executor gets the right over the child and mother does not get the natural guardian position even if the father dies. Minor child is under mother’s custody which is an absolute right under Muslim law. Under Hanafi law if the child is a girl until she comes to age of puberty she is under mother’s control and Shia until the child is seven years of age.

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In Shabnam Hashmi Vs Union of India & Ors (19 February, 2014)Irrespective of religion any person can adopt under Juvenile Justice (Care and Protection of Children) Act 2000 was ruled by Apex Court in this landmark judgement.

Under Christian and Parsis laws there is no particular section that states about adoption and so the Guardians and Wards Act comes to help for the parents of these religion.  Christians can take a child in adoption only under a foster care and when the child become a major can break free from adoptive home and move on as there is no legal inheritance right too. Since there is no particular law that regulates adoption with Christians the foster children are not considered as their children under law. L.K. Pandey vs. Union of India is one of the land mark case in relation to adoption (1982). Adoption is not legal for Parsis and this Act only provides a guardian-ward relationship to the child and adoptive parents and if Parsis adopt a child it will not legally be considered as of biological child of the couple. Justice Davar and Justice Beamon in one of the case held, that a child can be considered a Zoroastrian by religion but the child cannot be considered a Parsi by race. There are few schemes that the government of India has bought up like Sishu Greh Scheme that has been adopted to promote in-country adoption and another scheme under Ministry of Women and Child Development is Integrated Child Protection which work towards child’s rehabilitation.

There is another process which can be brought out here i.e. an inter-country adoption process also prevails where a child is given in adoption by one country’s parent to another country’s parents. Here legal parental rights from child’s biological parent to guardian new parent is transferred. Apex Court has given some guidelines that all the application which involves a foreigner or an NRI who wishes to adopt a child has to be sponsored by a child welfare agency that has been recognised by Government. Mr.Frank M.Costanzo and Another vs. Regional Passport Officer dated 17.9.2010 Supreme Court held that Regional passport Officer is not entitled to insist the adoptive parents to present No Objection Certificate from CARA.

Family plays a major pivot role which helps in developing the child’s mental and physical development. Indian government thinks that adoption is one of the best way to support the orphans, abandoned children who become homeless or separated from parents for many different reasons. The Ministry of Women & Child Development, Govt. of India also consider the welfare of children as the most important aspect.  Best interest of the child is the main goal of the Ministry and finding a loving and caring family to all the adopted children is healthier for the children’s overall development and growth. India has brought up a National Policy for the Welfare of Children to nurture the orphaned children and they grow up to become a strong citizens of the society. Hague Convention, Inter-Country Adoption 1993, UN Convention on Rights of the Child 1989 all of them consider the rights and safeguards of the adopted children. India signed the Hague Convention on Inter-country Adoption-1993.

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by Sushma Javare.