Children are a significant part of the society they are our future; not everyone can produce offspring so to experience, what a child brings to a person life they go for adoption This article talks about adoption law in India, we follow two different types of the statue for the process of adoption. This article will throw light on the process of adoption like who’s all are eligible for adoption, adoption by an NRI or foreign nationals and in the end will recommend some suggestion.
Adoption is a sacred act performed by humans. Adoption has gone through various radical changes from primitive to the modern age. The primary purpose of adoption was to secure the performance of one’s funeral right and preserve the continuation of lineage. According to Section 2(a) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, “adoption means the process through which the adopted child is permanently separated from his biological parent and becomes the legitimate child of his adoptive parents with all right, privileges and responsibility that are attached to the relationship”.
It is a matter of personal law. Reforms related to the old Hindu law were seen, and one of them was in the guise of a codified law on adoptions, called as Hindu Adoptions and Maintenance Act, 1956 (Ab. HAMA). Section 2 allows any person that comes under the definition of Hindu to go for adoption. The Non- Hindu community like Parses, Muslim, Christian are not eligible under HAMA. They had to recourse through Section 8 of the Guardians and Wards Act, 1890 (Ab. GAWA). Wherein they can become the guardian of children. This makes the child a ward, not an adopted child, under this law when children turn 21 years of age; they no longer remain the ward and turns into individual identity. They don’t have the automatic right of inheritance. Activities such as HAMA and GAWA doesn’t speak about the orphan, abandoned and surrendered children; on that part, it becomes prejudice for the children.
Who is Allowed to Adopt?
In case of adoption of a son by a Hindu couple, there can’t be any biological or adopted son at the time of adoption. The same is followed for daughter. They must be of sound mind, financially stable. Any single parent can adopt a son under Section 8 of HAMA. The criteria for adoption are more or less the same for a single parent.
NRI, foreign national can also adopt a child, but some conditions are to be met. The person who is adopting a child should be medically fit and financially stable. The person should at least be 21 years of age
The age limit of person varied with the adopted child, but a person above 55 can’t adopt a child in India, but if a person has a living spouse at the time of adoption his/her consent is required until he/she has been declared incompetent by the Court OR the living spouse renounce the world, OR the living spouse converted to other religion.
At the time of adoption, if a person has more than one wife, the consent of all wives is required. In the case of Bhooloram & Ors.v. Ramlal & OrsIf a person has more than one wife living at the time of adoption, a question posed before the Court whether it is appropriate to take the consent of all the wives?
The Court held that if a wife has absconded to some unknown location, she cannot be declared dead unless the requirements of Section 7 of the Act are met.
Who is to be Adopted?
According to the law, adoption of a child takes place when there is minimum an age difference of 16 years between the adopter and adoptee. When any prevalent custom in a community did not satisfy the above rule regarding the age difference, the law allowed both the parties for adoption. Generally, there are no certain rules regarding the age of a child, but the upper age limit of an adoptive child is 12 years while for adoptive parents it is 55 years
Adoption in Non-Hindu Community
Personal law of Christian, Muslim, Jews, parses don’t recognise the adoption, they can proceed for adoption under Guardians and Wards Act, 1890. They can only be a ward of the adopted son, and once the child attains the age of 21, he/she become an individual identity and free to break his ties with the family
In Mohammed Allahadad Khan v. Muhammad Ismail the Court held that there is nothing in Mohammadi law about adoption as in Hindu law, paternity is the nearest approach to adoption
A foreign national/NRI can go for adoption under guards and wards Act, 1890 as there is no separate act for foreign people. They have to follow guidelines given by SC to eliminate the misuse of an adopted child. As per SC, a foreign national can adopt a child before it turns three.
Chapter VII of Juvenile Justice (Care And Protection Of Child Act), 2015 talks about the adoption of abandoned, abused and surrendered child . According to Section 58 of the Act, any Indian national of any religion can proceed with the adoption aforementioned child to the specialised agency and have to adhere to the rules made by agency.
Section 57 of this Act deals with Prospective Adoptive Parent Eligibility. According to this Section, the adoptive parents should be physically fit, financially stable, psychologically aware and highly motivated to adopt a child in order to provide him with a successful education, and both partners must agree to the adoption. In compliance with the provisions of the adoption regulations established by the Authority, a single or divorced person may also adopt but a single male is not permitted to adopt a girl child.
Necessary Procedure for a Valid Adoption
Under the Hindu Adoption and Maintenance Act, the party that is willing to adopt will apply to the Child Welfare Agency in 1956. Registration can be done either by an Adoption Coordinating Agency (Ab. ACA) located in the capital city of each state, or by a Central Adoption Resource Authority (Ab.CARA) authorised agency in New Delhi. the agency performs a preliminary interview with the adopting couple to understand their purpose behind adoption and motivation. When the party chooses which child they are going to adopt, they send the petition to the Court of appropriate jurisdiction, where there is a court hearing on adoption (the Court is expected to hand down the adoption case within 2 months).
The adoption shall be completed once the Court issues the decree. Under the Guardianship and Wards Act, 1890, the party seeking guardianship must file an application with the Court to provide full information about them, reasons for being a child’s guardian and other information sought in the case. If the application has been accepted, the Court will set the date of the hearing where it will hear and examine facts, conditions and determine a minor ‘s interests, then the Court will decide whether or not such a party should be granted the guardianship of a minor.There is a guideline which requires adoption proceedings to be completed within two hearings, and the petition must be disposed of within two months of the petition being filed. The Organization has to receive the approved copy of the order within 10 days. The organisation still wants to obtain the child’s birth certificate, including the foster parents’ names.
Suggestions for The Improvement In Central Adoption Resource Authority (CARA)
CARA Recommendations and the new 2017 update have proven to be a ray of hope for many parents seeking children’s adoption. Yet India ‘s disappointing adoption rates still directly contradict the excitement for becoming parents. The legislative body formed to streamline the adoption process has proven otherwise. It is important to note that it took at least three decades to lay down criteria for adoption and many instances that were arbitrary in nature. In the case of Lakshmi Kant Pandey V. Union of India judgment, the Hon’ble Supreme Court set out guidelines for inter-country adoptions and, a few years later, the JJ Act was finally enacted to codify a secular (emphasis added) adoption statute.
In the view of scholars, we as a country are still fragmented and faced with religious beliefs. So much so that a cycle as natural and giving is pulled into the umbrella of religious politics as conception and then adoption. Adoption is a noble cause, giving joy to children that have been abandoned, or orphaned. This gives civilisation’s human side a chance to shine through. This is a positive system in which the infant is viewed as the child born naturally and given all the affection, care and attention. The conspicuously different rules for Hindus and Non Hindus create an emotional question in the event of adoption. The non-Hindu parents, who may wish to adopt a child and accept him / her as their own, are not legally allowed to call themselves parents or claim their own child.
Therefore, there has been a appeal for the introduction of a uniform Civil Code for adoption. A uniform civil code in laws regulating adoption does not infringe fundamental right to religion. It should be noted that state policy guidelines allow the state to carry law uniformity. The delay in the adoption process is yet another shortcoming of the CARA guidelines and needs to be resolved. In the humble opinion of the researchers, in order to streamline the process, we need to ensure that there is knowledge of adoption procedures and that there are enough adoption centres. There are actually more PAPs waiting to adopt OAS children legally available than is necessary. Recently, adoption has been the best way to restore family life to a child robbed of his or her maternal family, but it is not the panacea for many issues that causes children to be orphaned or abandoned.
An adoption is a sacred act and it should be carried out on a large scale by the people because India is a country where there is so much population and there are a massive number of abandoned kids.
Over the past few years, agencies and adoptive parents in India’s adoption program have noted a increasing preference for the girl child over boys. Adoption is one way of managing and preventing the raging issue of female foeticides and infanticides in India. And what better way of giving a healthy and normal life to a kid who really needs it.
 Inder Singh v. Kartar Singh (AIR 1966 Punj. 258)
 1989 JLJ 387 (Madhya Pradesh High Court).
 (1886) ILR 8 All 234.
 1984 AIR 469.