Should Right to Adopt be a Fundamental Right?


Adoption is a legal process that is recognized in all societies around the world. It is a process in which the biological parents of a child lose all the rights of being the parents and the legality of being parents transfers to the other parents who adopts the child. It is an institutionalized practice by which an individual belonging to one kinship group acquires new kinship ties; hence the old kinship acquires the new kinship legally, socially and economically. It is in the view that after this adoption took place all the rights, responsibilities and along with the filiation permanently transfers from the biological parents. In our country the right to adopt is not yet considered as a fundamental right but the adoption laws are governed by the different personal laws like for Hindus, Muslims, Parsis and Christians.

The adoption is recognized in India from centuries ago, but being a part of different personal laws, it has no such uniformity as according to the Hindu law, the adoption law is governed by the Hindu Adoption and Maintenance Act, 1956 (HAMA). While for the other religions like Muslims, Parsis and Christians they are governed by Guardians and Wards Act 1890 (GAWA). There is no uniformity or a common law for an adoption and due to this the loopholes and challenges are faced by our country in the adoption law in India.

The fundamental right to adopt is not considered by the constitution of India. According to me the right to adopt should be considered as a fundamental right so that it should be uniform for all the person who goes for an adoption. For every individual it is important to get an experience of parenthood, nobody can take this right from them. Everyone has a right to become a parent but somehow there are chances that are missed by the married couples and single people, they do not get this experience due to various reasons like infertility issues, economy constraints, limited time factors and also the reproductive techniques nowadays are a waste of money and time both which an ordinary person cannot afford.

Historical perspectives of adoption law

The concept of adoption had emerged thousands of years ago. The religious history of Hinduism has records of kings who were adopted and who did adopt. In the Ramayana and

Mahabharata also the references of adoption were seen. In that time when a king does not have a legal heir for his kingdom to work after his death then they prefer to adopt a male child. According to Hindu tradition and rituals, sons are crucial and a dead parent’s soul can only attain heaven when his son light his funeral pyre, and the salvation can only be achieved through sons who offers ancestral property

In early time the idea for an adoption of a son was adult centric and patriarchal. It was always a decision of adults for extending the kinship. During that time we have not seen a family adopt a daughter because at that time the mentality of the people was like what male child can do a female child can never do, so there was no such prevalence of a family adopting a female child. According to Manu adoption is the “Taking of a son, as a substitute for the failure of a man issue” it means the transplantation of son from the family he was born to the family where he is been adopted by a way of gift. In the Hindu law the adoption of “son” is accepted, the Hindus believe that a son was required for both religious and material welfare for his family and also there were no laws to adopt the daughter.

In Bal Gangadhar Tilak  v. Shrinivas Pandit[1] The Privy Council held that under Hindu law, adoption was a means by which not only the father’s name was carried forward, but it aided for the fulfillment of various religious rites and practices under Hindu law that mandated the involvement of a son. Prior to Hindu Adoption and Maintenance Act, 1956 the adoption of a daughter was unheard, there was always the adoption of son was prevalent because the male child can only perform religious rituals and rites under Hindu law. But after this act Hindu Adoption and Maintenance Act, 1956 it gave the women the right to adopt and be adopted.

Adoption under different personal laws

Hindu law

For governing the adoption law the legislation under Hindu personal law is the Hindu Adoption and Maintenance Act, 1956 (HAMA). This law is not only applicable for Hindus only but it is also applicable to Sikhs, Jain and Buddhist. This act put forward many changes in the laws of an adoption in the past years. The radical change which was brought by this act is the rights of women to be adopted and to adopt was enforced.

There are many provisions in the act which defines the valid adoption, who can adopt, who can be adopted etc. As per the section 6 of HAMA the valid adoption takes place when the person who is adopting has the capacity to adopt. There are other certain conditions for a valid adoption given under Section 11 of HAMA and they are if at the time of adopting a son, the adoptive parent does not have a Hindu son and vice versa if at the time of adopting a daughter, the adoptive parent does not have  a Hindu daughter. There must be an age gap of 21 yrs. between the parent and a child who is being adopted.

According to section 7 and section 8 of HAMA provides the capacity of Hindu male and women. Both shall be of sound mind and be of a major age and the consent of both the spouses is needed at time to adopt a child.

In Sawan Kumar v. Kalawanti[2] The Supreme Court held that the adopted child of the widow would also be regarded as the adopted child of the deceased husband who had died. The adopted son will be treated as a natural son and have all the rights in the property of his dead just like his blood child has. Since the adopted child loses all the rights from the biological family, and the same are to be replaced by the similar rights in an adoptive family.

In Shrinivas krishnarao kango v. Narayan deviji kango[3] the adopted child filed a petition for the share in the property of his joint undivided property. It was argued that if the child is adopted, he can only claim ancestral property not self-acquired property. In this case the court ordered that where the child was adopted, the effect of adoption is that it creates legal fiction and the child becomes the natural heir. So, the child has full right in the property of his family in which he was adopted but the only effect is that he has the eligible share in the property of his adoptive father only not in someone else’s property.

Muslim law

The personal law of Muslim does not acknowledge for complete adoption. They only take the guardianship of a child and the relationship of a child and parent is guardian and ward. The act which governs the adoption law in Muslim is Guardians and Wards Act 1890 (GAWA). Muslim personal law is different from Hindu personal law because under GAWA it does not confer the status of child on the adopted child, whereas in Hindu law it gives full status to the child as natural child, it gives full status to the child as natural child, it also gives right to inherit the property.

In Mohammed Allahadad Khan v. Muhammad Ismail[4] it was held that there is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System. Acknowledgement of paternity under Muslim Law is the nearest approach to adoption. It is of clear focus that the Muslim law is whole different from the Hindu adoption law.

Under the Guardians and Wards Act when a child turns 21 years of age they no longer remain wards and assume individual identities. They do not have an automatic right of inheritance. Adoptive parents have to leave whatever they wish to bequeath to their children through a will which can be contested by any blood related child. The child does not enjoy the legal status of an adopted child as enjoyed in Hindu law.

In Shabnam Hashmi v. Union of India and Otrs[5] the apex court held that the provisions of the Juvenile Justice Act, 2000, shall supersede the personal laws and any person can adopt the child irrespective of its religion he or she follows even if the personal law is barring to do. In this case Muslim couple wanting to adopt and the court ordered they can adopt under the provisions of the secular law.

The Juvenile Justice (Care and protection of children) Act 2000

The juvenile justice (care and protection of children) act 2000 was enforced for the protection of child rights and to aid the rehabilitation of orphaned and abandoned children. It also provides the adoption process under secular law. This act is applicable to all the Indian citizens irrespective of religion. The object of this law is to provide for those children whose birth parents are incapable of taking care of them, especially those who are orphaned, abandoned and surrendered. That child responsibility is reserved with the Court and it may give them up in adoption by maintaining strict adherence to the guidelines and provisions specified by the State or Central Adoption Resource Authority and notified by the Central Government.

This act is also supersede the personal law as in the Muslim law the adopted child does not enjoy the natural rights that a real child do enjoy. It bestows the relation of child and a parent not as a ward or a guardian. It also governs that a child is adopted by an unmarried couple and a childless couple are also given the right to adopt.

In re adoption of Payal @sharinee Vinay Pathak and his wife sonika sahay[6]the petition was filed by the Hindu couple that whether they are governed by the Hindu Adoption and Maintenance Act, 1956 or JJ act as if they were having the natural child and want to adopt the child of the same gender. It was held by the court that JJ act provided for the adoption of specific children who were in need of care and protection. So in this case the court held that both the acts have to be read simultaneously and ordered that the child can be adopted under JJ act if the child completed the description of the specific class as mentioned in JJ act.

Is the right to adopt is a fundamental right?

In the landmark judgment of Shabnam Hashmi v. Union of India & ors[7] the Supreme Court ruled that any person can adopt a child irrespective of its religion under The Juvenile Justice (Care and protection of children) act 2000 even if their personal law does not permit it. The court ruling laid the way to a foundation of uniform civil code. Till now the Muslims, Christians, Jews and those from the Parsi community only had the power of guardianship in which one possesses only legal right on the child till he or she turns an adult but after this judgment they can also adopt and treat the child as a natural child just like in Hindu law.

The apex court, however, turned down the plea for declaring the right of a child to be adopted and right of a parent to adopt as a fundamental right under the Constitution saying that such order cannot be passed at this stage in view of conflicting practices and beliefs. The reason for this is for only not declaring the right to adopt as a fundamental right just because in our country the legislation has the power to make the law and the parliament has a constitutional obligation of Article 44. The ongoing debate on uniform civil code to be enforced so that there will be the same law for every religion.

However the Supreme Court realized that the right to adopt is not a fundamental right but it is a fair need to grant the right to adopt a fundamental right because it is a matter of right to life to a childless couple and parentless child. According to our constitution Article 21[8] it clearly provides that before a person is deprived of his life or personal liberty by the State, the procedure established by law must be strictly followed. Right to life means to live a complete life and with full dignity without any restriction so religion law should be scrapped and uniform law to be enforced as it clearly infringes the parent and a child right to adopt and be adopted. They both has right to live a life as the nurturing of child can only took place if someone adopts the child and the parenthood can only be experienced by a childless couple to complete their family. So no religion has a right to restrict the powers of adoption.


In our country the adoption law faced significant changes from primitive to modern age. A study through times provides an interesting view of the changing concept of adoption. Prior the adoption is dealt with by other personal law which has clear binding but by the enforcement of JJ Act 2000 it clearly changes the definition of adoption which some other religions are restricted to do. Though the Supreme Court clearly ordered that the right to adopt is not a fundamental right and rejected the plea to grant this right a fundamental due to the conflicting belief of our society. The only solution to this problem is the enforcement of uniform civil code only after this the judgment could be changed.

It is a fair need to grant this right a fundamental right because everyone has the right to live a complete life and with dignity, the childless couple and parentless child they both have the right to have a full-fledged family. The increase in orphaned children can only be solved by the people adopting the child and the nurturing of the child is the most important aspect for a child to get. Even the parents who cannot bear the child due to some reasons have the right to get an experience of parenthood nobody has the right to restrict them in any case.  It becomes the responsibility of the Courts to make sure to adopt and to be adopted is a fundamental right for both children and parents so that countless orphans and childless parents get some form of respite.


  1. International journal of law : adoption in India- a critical analysis
  2. Adoption in India – the past, present and the future trends by saras bhaskar
  4. India kanoon


  1. What is adoption and its historical perspective that how it emerged?
  2. How the process of adoption differs under different personal laws?
  3. What are the changes brought by the Juvenile Justice (Care and protection of children) Act 2000?
  4. Why is the right to adopt is not a fundamental right?
  5. Why is it the need that the right to adopt shall be given the status of a fundamental right?

[1] (1915) 17 BOMLR 527

[2] AIR 1967 SC 1761

[3] 1954 AIR 379

[4] ILR 10 All, 1888, 289

[5] AIR 2014 SC 1281

[6] 2010 (1) BomCR434

[7] AIR 2014 SC 1281


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