“LEGAL FRAMEWORK GOVERNING ADOPTION IN INDIA”
Submitted by
R.VIGNESHWARAN Reg. No. BA0150050
Under the Guidance of
Ms. PRANUSHA KULKARNI
TAMIL NADU NATIONAL LAW SCHOOL (A State University established by Act No. 9 of 2012) Tiruchirappalli Tail Nadu ! "20 009 SEPTEMBER – 2016
Ms. PRANUSHA KULKARNI
Tail Tail Nadu National #a$ School Tiruchirappalli Tail Tail Nadu ! "20 " 20 009
CERTIFICATE This is to certify that the pro%ect $or& entitled '#eal rae$or& *overnin Adopt option ion in +ndia, ia, is a bona onafide record of the the research $or& done by -.in -.inesh$ar esh$aran/ an/ under y supervision supervision and uidance. uidance. +t has not been subitted subitted to any other University for the a$ard of any deree/ diploa/ associateship/ fello$ship or for any other siilar reconition.
lace lace Tiruc Tiruchir hirapp appalli alli ate 23th Septeber 201" S!"#$%&' () $*' G%+'
R.VIGNESHWARAN
Tail Tail Nadu National #a$ School Tiruchirappalli Tail Tail Nadu ! "20 " 20 009
CERTIFICATE This is to certify that the pro%ect $or& entitled '#eal rae$or& *overnin Adopt option ion in +ndia, ia, is a bona onafide record of the the research $or& done by -.in -.inesh$ar esh$aran/ an/ under y supervision supervision and uidance. uidance. +t has not been subitted subitted to any other University for the a$ard of any deree/ diploa/ associateship/ fello$ship or for any other siilar reconition.
lace lace Tiruc Tiruchir hirapp appalli alli ate 23th Septeber 201" S!"#$%&' () $*' G%+'
R.VIGNESHWARAN
Reg. No. BA0150050 ++ 4ear ! 5.A./ ##5./ (6ons.) Tail Tail Nadu National #a$ School Tiruchirappalli Tail Tail Nadu ! "20 " 20 009
DECLARATION R.V!"'s* "'s*-#&#" -#&#",, do hereby hereby declare declare that that the pro%ect pro%ect entitle entitled d “#eal rae$or& I, R.V!
*overnin Adoption in +ndia” subitted to Tail Nadu National #a$ School in partial fulfilent of re7uireent for a$ard of deree in Under *raduate in #a$ to Tail Tail Nadu National #a$ School/ Tiruchir Tiruchirappalli appalli// is y oriinal research research $or&. +t and has not been fored basis for a$ard of any deree or diploa or fello$ship or any other title to any other candidate of any university.
8ounter Sined P&('/$ G%+'
Sinature of the 8andidate
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA
ACKNOWLEDGEMENT + $ould li&e to etend y ratitude to the any people $ho helped to brin this research pro%ect to fruition. irst/ + $ould li&e to than& :s ranusha ;ul&arni/ for providin e the opportunity of epressin y talent and opinion of particular cas e. + a so deeply rateful rate ful for her help/ professionalis/ valuable uidance and support throuhout this pro%ect and throuh y entire study that + do not have enouh $ords to epress y deep and sincere a ppreciation. + $ould also li&e to than& the eperts $ho $ere involved in the validation survey for this research pro%ect.
have
been
successfully
conducted.
+
$ould
also
li&e
to
ac&no$lede
rofessor rofessor 5oinathan 5oinathan as the second reader of this pro%ect/ and + a ratefully indebted indebted to hi for his very valuable coents on this pro%ect $or&.
:y than&s also o to the all y friends for their nuerous conversations/ 7uestions and help. inally/ + ust epress y very profound ratitude to y parents for providin e $ith unfaili unfailin n suppor supportt and contin continuou uouss encour encourae aeen entt throu throuhou houtt y researc research h of study study and throuh the process of researchin and $ritin this pro%ect. This accoplishent $ould not have been possible $ithout the.
R.VIGNESHWARAN. R.VIGNESHWARAN.
#
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA S. N(
CONTENTS
P#!'
CHAPTER I
1.1 1.2 1.= 1.> 1.@ 1."
+ntroduction Adoption ! A concept of la$ Adoption under various la$ Adoption under ?nlish la$ 8oncept of Adoption in Ancient +ndia 8oncept of Adoption in resent +ndia CHAPTER II
" 3 9 9 10 11
2.1 2.2 2.= 2.> 2.@ 2." 2. 2.3
6indu la$ Adoption under 6indu la$ 6indu Adoption and :aintenance Act 19@" -e7uireents for a valid adoption ?ffect of adoption *ender bias The ersonal #a$ Aendent Act 2010 6indu :inority and *uardianship Act 19@" CHAPTER III
12 1= 1= 1> 13 21 22 2=
=.1 =.2 =.= =.> =.@
The *uardian and
2> 2> 2" 23 23
>.1
The Buvenile Bustice Act 2000 CHAPTER V
=0
@.1
+nterCcountry Adoption
== CHAPTER VI
".1 ".2 ".=
8entral Adoption -esource Aency (8A-A) 5asic uidelines for adoption Unifor 8ivil 8ode for adoption CHAPTER VII
=@ =" ="
.1
8ritical Analysis
=3 CHAPTER VIII
3.1
5iblioraphy
>1
$
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA
' Adoption has the dimension of connection – not on! to !o"# o$n t#i%e& %"t %e!ond $idening& the scope of $hat constit"tes o'e& ties and fami!. It is a a#ge# em%#ace. B! adopting $e st#etch past o"# immediate ci#ces and %! #eaching o"t( find an "ne)pected sense of %eonging $ith othe#s, C
+sabella -ossellini.
CHAPTERI 1.1 INTRODUCTION
8hildren are considered a bundle of %oy and on $ho the future of the country depends.
& 'hi(d tra)c*in+ accordin+ to the UNI'EF i, de-ned a, .any /er,on (e,, than %0 year, of a+e 1ho i, recruited2 tran,/orted2 tran,ferred2 harboured or recei3ed for the /ur/o,e of e4/(oitation either 1ithin or out,ide a country56 In India there i, a (ar+e number of chi(dren tra)c*ed for 3ariou, rea,on, ,uch a, (abour2 be++in+ and ,e4ua( e4/(oitation6 7 .:. Nair/ A #epo#t on t#affic+ing in $omen and chid#en in India/ httpDDnhrc.nic.inDocuentsD-eportonTraffic&in.pdf accessed on 10th Septeber 201"
8
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA situation that re7uires a uch different coitent. Adoption is the leal act of peranently placin a child $ith a parent or parents other than the birth parents. +n this process/ the parental rihts of the birth parents are peranently terinated. The adoptive parents then assue the full leal responsibility for the child. The child/ in turn ains the sae leal rihts as that of a child born to the adoptive parents. Adoption eans the connection bet$een the child and the careiver is leal and bindin on both parties/ not %ust convenient. Adoption involves a reat deal of paper$or&/ as $ell as the assistance of la$yers/ social $or&ers and %udes to finaliEe the process. +t is a peranent arraneent/ %ust li&e a natural parentCchild relationship. 6o$ever/ for ost failies/ adoptions are ultiately an act of love and the desire to enrich their faily and the life of the child $ho becoes a part of that faily >. The statistical data of adoption of child in +ndia are fallin drastically every consecutive $hich sho$n raphically@
# ;athryn atricelli/ Int#od"ction to adoption f#om the adopti'e pa#ent pe#specti'e& httpsDD$$$.entalhelp.netDarticlesDintroductionCtoCadoptionCfroCtheCadoptiveCparentCperspectiveD accessed on 2> th Septeber 201"
$ Ra&esh ubbudu/ ,emand fo# adoption mo#e than fo"# times the n"m%e# of a'aia%e +ids& http-$$$.ne$sa"nd#!.com/01011demand2fo#2adoption2mo#e2than2fo"#2times2the2n"m%e#2of2 a'aia%e2+ids accessed on 2@ th Septeber 201"
9
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA
The adoption process is ore prevalent bet$een the ae of 0C2 years and the ratio is statistically sho$n in the fiure fro Auust 201@ to :arch 201"
1.2 ADOPTION A CONCEPT OF LAW
Adoption as a leal concept $as available only aon the ebers of the 6indu faily and the 6indu parents are leally allo$ed to adopt the child as their natural born child. Fnly 6indus $ere allo$ed to leally adopt the children and other counities could only act as leal uardians of the children. The author is of the vie$ that adoption has al$ays been considered as a $onderful opportunity to provide a child a beautiful faily and parents.
0
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA +t offers an ecellent alternative to institutional care of destitute/ abandoned and nelected child in an atosphere of love/ affection and understandin $hich only a faily can provide and no other institution can replace it ". The author is of the opinion that adoption is the institutionalised practise throuh $hich an individual belonin by birth to one &inship roup ac7uires ne$ &inship ties that are socially and leally defined as e7uivalent to the conenital ties. The ter 'Adoption, as defined under personal la$ eans that ' the p#ocess th#o"gh $hich the adopted chid is pe#manent! sepa#ated f#om his %ioogica pa#ents and %ecomes the egitimate chid of his adopti'e pa#ents $ith a the #ights& p#i'ieges and #esponsi%iities that a#e attached to the #eationship,3. Adoption is the transplantation of a child fro the faily in $hich heDshe is born/ to another faily $here heDshe is iven by the natural parents by $ay of adoption. The adopted child is then ta&en as bein born in the ne$ faily and ac7uires rihts/ duties and status there only and the leal bond $ith the old faily coes to an end. The real concept of adoption is concerned $ith 6indus only. The adoption is not an institution peculiar to 6induis but also o$es its oriin to the social counis peculiar to the priitive races. +n early ties/ children irrespective of their se $ere ta&en in adoption. So adoption is a chance iven for the abandoned children a ne$ life 9. 1. ADOPTION UNDER VARIOUS LAWS
6+NU #A< The 6indu Adoption and :aintenance Act 19@" and Buvenile Bustice 8are and rotection of 8hildren Act 2000 8
0 Sanitha ;rishnaurthi/ Adoption *a$ in India& http-$$$.theate#nati'e.insociet!adoption2a$2 in2india accessed on 1st Septeber 201"
: Shuani/ Adoption in India 3An o'e#'ie$4/ httpDD$$$.yourarticlelibrary.coDadoptionDadoptionCinC indiaCanCovervie$D>"31D accessed on 23 th auust 201"
:
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA :US#+: #A< There is no separate la$ to a&e the adoption leal under :usli 8ounity. 86-+ST+AN #A< G A-S+ #A< The *uardians and
The ?nlish la$ started reconiEin adoption durin the latter half of the nineteenth century. #eal adoption cae into eistence only durin 192". The purpose of this Act $as to prevent the bioloical parents fro claiin bac& their children. A ore coprehensive Act $as passed in 19@0. This Act $as odified in the year 19@3. ?nlish la$ of adoption is very siilar to the 6indu la$ of adoption inasuch as that it lays do$n that the adopted child for all intents and purposes becoes li&e a natural child and the childHs ties $ith his natural faily are severed 10. 1.5 CONCEPT OF ADOPTION IN ANCIENT INDIA
The ancient tets $hich thro$s the liht on the concept of adoption in +ndia $ere atta&a :iasa/ atta&a 8handri&a/ :anu/ 4anaval&ya/ *autaa/ 5audhayana and ;autilya are the very fe$ iportant 6indu tets that thro$s the liht on the concept of Adoption in ancient +ndia. ?clusively/ Sritis deal $ith a host of sub%ects such as doestic rituals/ custoary rites/ inheritance etc. The Sritis li&e :anu/ 4a%naval&ya/ ;apila/ #ohita stronly discuss about the concept of la$ of Adoption and +nheritance of the adopted child. +n all these tets it is entioned that ' adoption is a p#ocess to inco#po#ate a chid pe#manent! into a fami! gi'en $ith a the #ights of a nat"#a %o#n chid ,/ in $hich heDshe $as not been born. +t also says that the child $as adopted for teporal and spiritual purposes and ore recently/ to satisfy the eotional and parental instincts of the adopters. +n sritis literature/ the #a$ of Adoption $as parent based and not child based. The sirti&aras suested that only one son could be adopted for the continuation of the faily line. There $ere opinions laid do$n in these tets that are the $hole Sirits and uranas ordain that the only son shouldnHt be iven or received in an adoption.
%;Alas Shai&h/ Adoption *a$s in India/ httpDD$$$.la$ctopus.coDacadei&eDlealCfrae$or&C overninCadoptionCla$sCindiaD accessed on 23 th auust 201"
%;
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA Another coon prediction is that the adoption process should be done only by caste and otra based eanin thereby in olden days if the parents try to adopt the child then the criteria for the adoption is that the child ust also belon to the sae otra and caste as their parents do. +n :anu it points out that the iftin and sale of children is sinful in ancient +ndia/ $hile no$adays it is reconiEed as adoption 11.
1.6 CONCEPT OF ADOPTION IN PRECENT INDIAN LAW
The custo and practise of adoption in +ndia dates bac& to the ancient ties. Althouh the act of adoption reains the sae/ the ob%ective $ith $hich this act is carried out has differed it usually raned fro the huanitarian otive of carin and brinin up a nelected or destitute child to a natural desire for a &id as an ob%ect of affection/ a careta&er in old ae and an heir after death of the particular person $ho adopts the child. The author is of the vie$ that since adoption coes under the abit of the personal la$s/ there has not been a scope in the +ndian scenario to incorporate a unifor la$ aon the different counities. 6ence/ this la$ is overned by various personal la$s of different reliions. So the concept of adoption is different aon different personal la$ such as 6indus alone can adopt under 6indu Adoption and :aintenance Act $hile under :usli/ 8hristian/ arsis there is no adoption $herein they becoe only the uardian to the adopted child and not the bioloical parent as it $as in the case of 6indu adoption. Adoption is not peritted in the personal la$s of :uslis/ 8hristians/ arsis and Be$s in +ndia. 6ence they usually opt for the uardianship of a child throuh the *uardians and DAFT+FNC+NCAN8+?NTC+N+A accessed on 29th Auust 201"
%& Nishant :ehrotraI *a$ go'e#ning Adoption in IndiaI httpsDD$$$.lin&edin.coDpulseDla$sC overninCadoptionCindiaCnishantCehrotra accessed on 29th Auust 201"
%%
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA $hich any reliion can adopt a child. There is no such restriction or bein iposed on the parents to adopt the child only on soe basic criteriaHs this act provides and covers $ide rane for adoption process. :ost of the people in the recent days o for the adoption under Buvenile Bustice Act because under the 6indu Adoption and :aintenance Act one of the dra$bac& is that the children of sae ender is not allo$ed to adopt even if the child are t$ins/ it is not leally valid under 6indu Adoption but valid under Buvenile Bustice Act 2000. or ?aple/ if a couple $ant to adopt a ale child under 6indu Adoption it is possible only $hen they do not have a child under sae ender. +t is valid to adopt a ale child only $hen they have a feale child but this restriction is not placed under Buvenile Bustice Act $herein the couple are leally allo$ed to adopt the child even thouh the parties have sae ender of child they are leally allo$ed to adopt the child. CHAPTERII 2.1 HINDU LAW
6indu la$ is the only la$ in +ndia $hich treats an adopted child as bein e7uivalent to a natural born child. The sole and the only reason for this is ostly because of the belief that a son $as indispensible for spiritual as $ell as aterial $elfare of the faily and because as to continue as their leal heir and has to ta&e care of the in the olden days. Under the old 6indu la$/ only a ale could be adopted and a feale child could not be adopted. Then even if a ale child is adopted restrict ions $ere iposed based on the caste and otra. A feale child strictly could not be adopted under the 6indu #a$. Under the Fld 6indu la$ only the ale had a riht to adopt and the consent or dissent of his $ife to the proposed adoption is iaterial1=. Under the odern 6indu #a$ every 6indu ale or feale has the capacity to a&e an adoption provided he or she has attained the ae of a%ority and are of sound ind. These all provisions and leal rules coe under the 6indu Adoption and :aintenance Act 19@". The author is of the opinion that 6indu la$ is the only la$ $hich reconise adoption in the true sense of ta&in of a son as a substitute for a natural born one. The reason for this is that %7?volution of :arriae as a Social +nstitution/ httpDDshodhana.inflibnet.ac.inDbitstreaD10"0=D2"@23D3D03JchapterK201.pdf accessed on 10 th Septeber 201"
%&
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA only a son could fulfil the role of LdelivererH fro the hell. The adoption of dauhter $as thus not leally reconised thouh it $as perissible $here custo allo$ed it. +n the case of Ba Gangadha# ia+ ' Sh#ini'as 6andit 17/ 'the p#i'! co"nci o%se#'ed adoption among the Hind"s is necessa#! not on! fo# the contin"ation of the c hidess fathe#8s name %"t aso as a #eigio"s means to ma+e those o%igations and sac#ifice $hich $o"d pe#mit the so" of the deceased fathe# passing f#om Hades to pa#adise,. Siilarly this $as also follo$ed in the case la$ of Ama#end#a 9ansingh ' Sanatan Singh 15 the privy council observed that 'he fo"ndation of the B#ahmanica doct#ine of adoption is the d"t! $hich e'e#! Hind" o$es to his ancesto#s to p#o'ide fo# the contin"ance of the ine and the soemni:ation of the necessa#! #ites1 , 2.2 ADOPTION UNDER HINDU LAW
The adoption under 6indu la$ is overned by the 6indu Adoption and :aintenance Act/ 19@".This Act is prospective and not applicable to preCAct adoptions this $as laid do$n in the case of Nagi#eddi *a+shmi ' Nagi#eddi Naga#a;" 1 .This Act of 19@" etends only to the 6indus/ $hich are defined under section 2 of the Act and include any person $ho is a 6indu by reliion/ includin a virashaiva/ a linayat or a follo$er of the 5raho/ prarthana or Arya Saa% or a 5uddhist/ Baina or Si&hs by reliion to any other person $ho is not a :usli/ 8hristian/ arsi or Be$ by reliion. +t also includes any leitiate or illeitiate child $ho has been abandoned both by this father and other or $hose parentae is not &no$n and $ho in either case is brouht up as a 6indu/ 5uddhist and Bains or Si&h. Adoption is reconiEed under the 6indus and is not reconiEed under :uslis/ 8hristians and arsi. 2. HINDU ADOPTION AND MAINTENANCE ACT 156
Adoption in the 6indus is covered by the 6indu Adoption and :aintenance Act 19@"/ after coin of this Act/ all adoptions can be ade in accordance $ith this Act. +t cae into effect fro 21st eceber 19@". rior to this Act only a ale could be adopted but the Act a&es a %# >2 +A 1=@/ p.1@> %$ "0 +A 2>2 %8 ;usu/ aily #a$ 1/ #eis Neis ublication/ > th edition/ 6aryana 201@ %9 A+- 200@ A 1 %7
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA provision that a feale ay also be adopted. This Act etends to the $hole of +ndia ecept the states of Bau ;ashir. +t applies to all 6indus/ 5uddhists/ Banis and Si&hs and to any other person $ho is not a :usli/ 8hristians/ arsi by reliion. The 6indu Adoption and :aintenance Act 19@"/ provides for adoption of 6indu children by the adoptive parents belonin to 6induis. This is not applicable to other counities li&e :uslis/ 8hristians and arsi. They have to recourse to *uardians and
Section " provides the re7uisites of a valid adoption. +t lays do$n that no adoption shall be valid unless the person adoptin has the capacity as also has the riht to ta&e in adoption/ the person ivin in adoption has the capacity to do soI the person adopted is capable of bein ta&en in adoption and the adoption is ade in copliance $ith the other conditions entioned in the chapter ++. 19 The adoption is copleted by an actual ivin and ta&in and the cereony is called ' ,atta homam, this $as the condition in the older days before the enactent of the section 11 of the 6indu Adoption and :aintenance Act 19@". <=ne of the impo#tant #e>"isites of the Hind" Adoption is the pe#son adopting is a$f"! capa%e of ta+ing the chid and the pe#son gi'ing in adoption is a$f"! capa%e of gi'ing consent in Adoption?. T*' 8(s$ 3(ss9:' ;%'s$("s $*#$ #&s' (%$ () H"+% #+(3$(" #&' :s$'+ 9':(-
a)
%: ;usu/ op.cit.& p.3 %#
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA b)
+n this Act it is said that any adult 6indu ale $ho is of sound ind can adopt a child. +f the an is arried/ then the consent of the $ife is necessary. The sae criteria oes $ith the $oen also/ li&e $ise a feale adult 6indu of sound ind could adopt a child if she is Unarried ivorced
+f the above all re7uireents are fulfilled then the husband and the $oen is leally entitled to adopt the child. a4 Who ma! adopt i.e.& $ho a#e entited to adopt a chid S?8T+FN and S?8T+FN 3 of the 6indu Adoptions and :aintenance Act 19@"/ prescribes the eneral capacity of 6indu ale and feale to adopt a son or dauhter and it
is
deterined on the bases of capacity of a ale and a feale to adopt the child.
Section deals $ith '@apacit! of 9ae,. Section 3 deals $ith '@apacit! of emae,.
9< W*'$*'& $ s 8#:' (& )'8#:' -*( s '"$$:'+ $( #+(3$=
Under the 6indu Adoption and :aintenance Act 19@"/ it is stated that both ale and feale are entitled to adopt a child but under certain conditions $hich are iven in section and 3 respectively. rior to the ersonal #a$ Aendent Act 2010/ a feale adult 6indu can adopt a child. 8AA8+T4 F :A#? ! S?8T+FN Section of the 6indu Adoption and :aintenance Act 19@"/ prescribes the eneral capacity of a 6indu ale to ta&e a son or a dauhter in adoption if and only if
%$
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA
6e should possess sound ind 6e should not be a inor/ i.e./ the ae of the person should be of a%ority ae as
prescribed under la$. +f he has a $ife livin/ he shall not adopt ecept $ith his $ifeHs consent/ unless his $ife
has copletely and finally renounced the $orld that She has ceased to be 6indu or 6as been declared by a court of copetent %urisdiction to be of unsound ind. +f a person has ore than one $ife livin at the tie of adoption the consent of all the $ives is necessary unless the consent of one of the is unnecessary for any of the reasons specified in the precedin points/ if that satisfies then it is not necessary to et the consent
of that particular ale $ho has ore than one $ife. This section also provides that if the $ife finds that the choice of the person to be adopted by the husband is not appropriate or is not in the interest of the faily then she can veto his discretion.
The above point ives us the conclusion that the consent of the $ife has been ade as a condition precedent for adoption by a ale 6indu. The Act clearly points out that $here both the parents are dead or is leally incopetent to ive in adoption/ and then in that case the uardian20 of the child ay ive the child in adoption $ith the perission of the court. 8AA8+T4 F ?:A#? ! S?8T+FN 3 Section 3 of the 6indu Adoption and :aintenance Act/ prescribes the eneral capacity of a 6indu feale to ta&eD adopt a son or dauhter only $hen
she is of sound ind she is not a inor and she is not arried or if arriedI $hose arriae has been dissolved or $hose husband is dead or has copletely renounced to the $orld or has ceased to be a 6indu or has been declared by the court of copetent %urisdiction to be of sound ind
+f all the above re7uireents are fulfilled then the respective $oen has the capacity to ta&e a son or dauhter in adoption.
%8
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA The above valid points ives us the conclusion that a feale 6indu $ho is of sound ind and has copleted the ae of eihteen years can also ta&e son or dauhter in adoption to herself and in her o$n rihts. After the ersonal #a$s (Aendent) Act 2010/ a fealeHs riht to adopt has been brouht at par $ith the aleHs rihts.
/< > +< -*( 8#? !@' /*:+ " A+(3$(" #"+ -*#$ #&' $*' /("+$("s )(& $*' #+(3$'+ /*:+ /&$'&# )(& $*' /*:+ $( 9' #+(3$'+<
Section 10 of the 6indu :arriae Act 19@" ives the ans$er for the above 7uestion that the section provides that
The father alone is alive shall have the riht to ive in adoption/ but such riht shall not be eercised ecept $ith the consent of the other unless the other of the child has copletely and finally renounced the $orld or has ceased to be a 6indu or has declared
by a court of copetent %urisdiction to be of unsound ind. The other of the child ay ive the child in adoption if the father is dead or has copletely renounced the $orld or has ceased to be a 6indu or has been declared as
unsound.
The court $hile rantin the perission shall be satisfied that the adoption is for the $elfare of the child and due consideration and aintenance $ill be iven to the $ishes of the child. Then he is bound to adopt the child. '< W*#$ #&' $*' /("+$("s )(& $*' 3'&s(" -*( s #+(3$"! .'., -*( 8#? 9' #+(3$'+=
No person can be adopted unless
6e or she is a 6indu 6e or she has not already been adopted 6e or she has not arried/ unless there is a custo or usae applicable to the parties $hich perits persons $ho are arried bein ta&en in adoption. %9
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA
6e or she has not copleted the ae of fifteen years.
)< Is $*'&' #"? ($*'& /("+$(" )(& # @#:+ #+(3$("=
The other re7uireents for the adoption to be rendered as valid are laid do$n in section 11 they are That $hile adoptin a child one ust ta&e into consonance and consideration the follo$in points a. +f the adoption is of a son/ the adoptive father or other by $ho the adoption is ade ust not have a 6indu son/ sonHs son or sonHs sonHs son livin at the tie of adoption. b. +f the adoption is of dauhter/ the adoptive father or other by $ho the adoption is ade ust not have a 6indu dauhter or sonHs dauhter livin at the tie of adoption. c. +f the adoption is by a ale and the person to be adopted is a feale/ the adoptive father is atleast t$enty one years older than the person to be adopted. d. +f the adoption by a feale and the person to be adopted is a ale/ the adoptive other is atleast t$enty one years older than the person to be adopted. e. The sae child ay not be adopted siultaneously by t$o or ore parentsI the child to be adopted ust be actually iven and ta&en in adoption $ith intent to transfer the child fro the faily of birth. +n case there is absence of copliance of any one of these rules prescribed by the statue the 6indu Adoption and :aintenance Act 19@"/ the adoption $ould not be considered as valid adoption21. 2.5 EFFECT OF THE ADOPTION
&% ;usu/ op.cit( p. 9 %0
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA other. of the 6indu Adoption and :aintenance Act 19@". +n this contet/ an issue cae up $ith a case. 8AS? NA:? Sa$an -a v ;alavati 8+TAT+FN A+- 19" S8 1"1 #?*A# +SSU?
%:
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA #?*A# +SSU? $here the respondent $ho $as adopted by his aternal randfather claied property rihts in the faily of his birth.
?8+S+FN The court said that upon adoption no rihts reain in the faily of birth. The adoptive children have inheritance rihts connected $ith their adoptive parents/ but not $ith their bioloical parents. Section 12 lays do$n certain provision for the effect of adoption i.
-?S-T+8T+FN FN T6? :A--+A*? F AFT? 86+# The section clearly point out that a restriction on the arriae of adopted child $ith a person to $ho he or she could not have arried if he or she had continued in the faily of his or her
ii.
birth. -+*6TS F T6? AFT? 86+# +N A88F-AN8? <+T6 -F?-T4 The proviso saves the vested riht of the adopted child in the property sub%ect to the obliation/ if any attached to the o$nership of such property/ includin the obliation
iii.
to aintain relatives in the faily of his or her birth. #i&e$ise/ clause (c) to the proviso lies do$n that the adopted child shall not divest
iv.
any person of any estate vested in hi or her before the date of adoption. This above provision is related to Section 1" $hich ebodies a rule of presuption lays do$n that $henever any docuent reistered under any la$ for the tie bein in force evidencin adoption and sined by the person ivin and person ta&in the child in adoption is produced before any court/ then it shall presue that the adoption has been ade after coplyin $ith the provisions of the Act unless proved other$ise.
SECTION 1 PROVIDES THE RIGHT OF THE ADOPTIVE PARENTS TO DISPOSE OF THEIR PROPERTIES
This section clearly provides that the adoptive child ets property rihts in his ne$ faily/ but an adoption does not deprive the adoptive father or adoptive other of the po$er to dispose of his or her property by transfer inter vivo or by $ill/ unless there is an areeent iposin such restrictions.
&;
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA Adoption once ade is final and irrevocable. An adoption validly ade cannot be cancelled by the adopter/ natural parents or any other person. Nor can an adopted child renounce his adoptive parents and return to the faily of his or her birth. This eans that is if a person a&es an adoption/ under no circustances he or she ets rid of the child. An adopted child cannot aain be iven in adoption 2=. The author is of the idea that once an adoption has been duly ade in accordance $ith la$/ it cannot be cancelled nor can the adopted child/ the adoptive parents and the natural parents destroy the rihts of the adopted. 2.6 GENDER BIAS
Thouh after the enactent of the Act/ it has been noted that the ender discriination has been eliinated but still in actual sense it still eists.
&%
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA To conclude by sayin that there eists ender bias even thouh/ adoption is leally valid aon 6indus still there is a ender 5ias $here the ale ac7uires the superior position but $oens are inferior all throuh their life2>. 5ut after the personal la$ aendent the ender bias is discriinated. So the feale $ith the consent of the $ife can adopt a child. 8AS? NA:? :alti -oy 8ho$dhury v Sudhindranath :a%udar 8+TAT+FN A+- 200 8al >/ (200) 1 8A##T =2= 68 #?*A# +SSU? $hether or not the arried $oan has the riht to adopt the childM ?8+S+FN The court rear&ed that the adoption has to be ta&en factually or leally by the ale in case of arriae and not by the $ife. +n other $ords/ the $ife has no capacity to adopt even $ith the consent of the husband. The conclusion $ill be that the la$ has ta&en of the *ender iscriination in the Act and hence passed 'The Personal Laws (Amendment) Act 2010 ,/ ivin riht to arried feales to adopt $ith husbandHs consent but this is not li&ely to chane the fate of arried feales placed in the position of the disabled/ deserted. 2. THE PERSONAL LAWS AMENDMENT ACT 2010
After the enactent of the 6indu Adoption and :aintenance 19@"/ the various sections of these statutory provisions under$ent several aendents. The statue $as put into scrutiny and these proposals for aendents $ere ade. These proposals $ere then incorporated throuh the personal la$ aendent/ Act 2010. Thus here a fe$ aendents in section 3 and section 9 of the 6indu arriae and Adoption Act 19@" that are incorporated in the statutes 2@. AMENDMENT OF SECTION
+n the 6indu Adoption and :aintenance Act 19@" for section 3/ the follo$in section shall be substituted naely
&# ;usu/ op.cit / p.1= &$ rachi utta/ Gende# Ine>"ait! and Hind" 6e#ssona *a$& httpDDindiala$%ournal.coDvolue3DissueC1Darticle10.htl/ accessed on >th Septeber 201"
&&
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA CAPACIT OF A FEMALE HINDU TO TAKE IN ADOPTION
Any feale 6indu $ho is of sound ind and is not a inor has the capacity to ta&e son or dauhter in adoption provided that/ if she has a husband livin/ she shall not adopt a son or dauhter ecept $ith the consent of her husband unless the husband has copletely and finally renounced the $orld or has ceased to be a 6indu or has been declared by a court of copetent %urisdiction to be of unsound ind. AMENDMENT OF SECTION 2<
+n the 6indu Adoption and :aintenance Act 19@"/ section 9(2) provides (2) Sub%ect to the provisions of subsection (>)/ the father or other/ if alive shall have e7ual riht to ive a son or dauhter in adoption rovided that such riht shall not be eercised by either of the shall $ith the consent of the other unless one of the has copletely and finally renounced the $orld or has ceased to be 6indu or has been declared by a court of copetent %urisdiction to be of unsound indI (ii) subCsection (=) shall be oitted 2". 2. HINDU MINORIT AND GUARDIANSHIP ACT 156
The 6indu :inority and *uardianship Act 19@" have codified la$s of 6indus relatin to inority and uardianship. As in the case of unodified la$/ it has upheld the superior riht of the father. +t lays do$n that a child is a inor till the ae of 13 years. Natural uardian for both boys and unarried irls is first the father and then the other. rior riht of other is reconiEed only for the custody of children belo$ five. +n case of illeitiate children/ the other has a better clai than the ac&no$leded father. The act a&es no distinction bet$een the person of the inor and his property and therefore uardianship iplies control over both. The Act directs that in decidin the 7uestion of uardianship/ courts ust ta&e the $elfare of child as the paraount consideration2. 'Section of this Act p#o'ides a%o"t the nat"#a g"a#dians of a Hind" mino#?.
&7
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA
CHAPTER III STATUS GOVERNING OTHER RELIGION .1 THE GUARDIANS AND WARDS ACT 10
As the nae itself suest/ the 6indu Adoption and :aintenance Act 19@" $ere ostly the uidelines for the 6indu society. Another la$ had to be ade $hich $as sensitive to the personal la$s of other reliion li&e 8hristians/ :uslis/ arsis and Be$s $hich did not coe under the 6indu Adoption and :aintenance Act of 19@". 5ut these are overned by the *uardians and
&#
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA All these procedures too& place only after an application had been placed by the person $ho $as $illin to ta&e a child under hiself and to act as his uardian. The application should contain all the possible inforation that $ould have been re7uired/ includin the inforation about the uardian and any reason as such for the uardianship. Fnce the court adits the application/ a date for a hearin $ould be set. The court $ill hear the evidences before a&in a decision. Unli&e in the procedures iven in the 6indu :aintenance Act 19@" $here a person once adopted has a sinle set of parent/ here a inor and his property could have ore than one uardian. +t $as re7uired under these cases of uardianship that the court use its discretionary po$er and considered the interests of the inor. 6isD 6er ae/ se/ reliion/ the copatibility proportion $ith the uardian/ the death of the parent ust be ta&en into consideration. The inorHs preference ay also be ta&en into consideration in this uardianship Act 1390. The process here is copletely different fro the 6indu &inds of Adoption $herein the process a&es the child a $ard/ not an adopted child. Under this la$/ $hen children turn 21 years of ae/ they no loner reain $ards and assue individual identities. They do not have an autoatic riht of inheritance in their parents property under $ho he $as under protection called $ard. These re7uireents reain silent on the cases of orphans/ abandoned and surrendered children. This Act ho$ever does not provide to the child the sae status as a child born bioloically to the faily or unli&e a child adopted under the 6indu Adoption and :aintenance Act 19@". 6ere the child cannot becoe their o$n/ ta&e their nae or inherit their property. The *uardianship and
&: r. i%ay al ;hana$alG r. a$an :ittal/ *ega aspects of egitimac! in Indian 6e#specti'e An o'e#'ie$& http-medind.nic.in;%ct1/i/;%ct1/i/p111.pdf accessed on =1 st Auust 201"
&$
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA To conclude by sayin that under the *uardians and
. ADOPTION UNDER MUSLIM LAW
Adoption is little different under +slaic la$ than the usual adoption practices that are follo$ed. The +slaic ter for $hat is enerally called adoption is ' +afaa1,. This coes fro a $ord that eans 'to feed , . +n essence/ it describes ore of a fosterCparent=0 relationship li&e everythin else in +slaic la$ the practice of adoption is hihly reulated. 5ut ostly the concept of adoption is not follo$ed in aon uslis soe uslis prefer to adopt child in such a case adoption is iven but not li&e in the case of 6indus. 6ere it $ill be only the ere custody and uardianship is iven by parents.
A uardianD$ard role is played out rather than a parent. This relationship has specific
rules. These rules are ainly to preserve the interity of the faily line. Adoption is certainly not prohibited.
safeuard bioloical lineae and not confuse lineae =1. Adoption is the transplantation of a son fro the faily in $hich he is born/ into another faily by ift ade by his natural parents to his adoptin parents. +sla does
not reconise adoption. The Adoption of 8hildren 5ill 192 $as not approved as the :usli opposed it. ' he Adoption of @hid#en Bi& 1D0 aiming to p#o'ide fo# an ena%ing a$ of adoption appica%e to a comm"nities othe# than the 9"sim comm"nit!,/ $as opposed by the 5obay Ooroastrian Bashan 8oittee/ $hich fored a special coittee to eept arsis fro the 5ill.
7; oster care is a syste in $hich a inor has been placed into a $ard/ roup or hoes of a state certified careiver/ referred to as a 'foster parent,. The place ent of the child is norally arraned throuh the overnent or a social service aency. The institution/ roup hoe or foster parents is copensated for epenses. The state via the faily court and child protection aency stand in <oco pa#entis? to the inor and a&in all leal decisions $hile the foster parent is responsible for the dayCtoCday care of the inor.
7% rof ;usu/ op.cit / p.1= &8
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA The National Adoption 5ill/ tabled t$ice in parliaent in the seventies/ has yet to enter the statute boo&s. The history of attept to brin in the concept of secular adoption into our syste of la$s narrates a sad tale of inaction and action $ithout conviction on the part of the leislature.=2 There are fe$ rules in +sla surroundin the concept of Adoption (for providin uardianship) they are as follo$s
An adopted child retains his or her o$n bioloical faily nae and does not chane
his or her nae to atch that of the adoptive faily. An adopted child inherits fro his or her bioloical parents/ not autoatically fro
the adoptive parents. +f the child is provided $ith property/ $ealth fro the bioloical faily/ adoptive parents are coanded to ta&e care and not interinle that property and $ealth
$ith their o$n ' In the concept of Isam the adopted fami! $i se#'e me#e! as t#"stee,.
The above illustrated points clearly state that the +slaic rules ephasiEe to the adoptive faily that they are not ta&in the place of the bioloical faily but instead there are only the trustees and care ta&ers of soeone elseHs child under the *uardianship and ?8+S+FN The court held that there is nothin in the :ohaedan la$ siilar to adoption as reconiEed in the 6indu syste. Ac&no$ledeent of paternity under :usli la$ is the nearest approach to adoption. The aterial difference bet$een the t$o can be stated that in adoption/ the adoptee is the &no$n as son of another person/ $hile one of the essentials of ac&no$ledent is that ac&no$lede ust not be &no$n son of another. 6o$ever an adoption can ta&e place fro an orphanae by obtainin perission fro the court under *uardians and
&9
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA The above illustrated rules ephasiEe to the adoptive faily that they are not ta&in the place of the bioloical faily but instead they are erely a trustee and careta&ers of soeone elseHs child. Their role is very clearly defined but nevertheless very valued and iportant. +n this contet a recent %udeent of the Supree 8ourt delivered on activist Shabna 6ashiHs petition re7uestin court to declare the riht to adopt and to be adopted as a fundaental riht/ is sinificant.
As pointed out earlier the act very outset/ the only personal la$ $hich perits adoption under the statue is the 6indu Adoption and :aintenance Act 19@". There are no other la$ overnin people belonin to other reliions or counities. <he 6a#sis& $ho a#e go'e#ned in thei# pe#sona a$s %! the 6a#si 9a##iage and ,i'o#ce Act 1DF states that the#e is no sepa#ate p#o'ision fo# the adoption of a chid? . The personal la$s of these counities also do not reconiEe adoption and here too an adoption can ta&e place fro an orphanae by obtainin perission fro the court under *uardians and
A 8hristian has no adoption la$. Since adoption is leal affiliation of a child/ it fors the sub%ect atter of personal la$. 8hristians have no adoption la$s and have to approach court under the *uardians and
77 !rof Ku,um2 op.cit 2 /6%7 &0
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA National coission on $oen has stressed on the need for a unifor adoptive la$. 8hristians can ta&e a child under the said Act only under foster care. Fnce a child under foster care becoes a%or/ he is free to brea& a$ay all his connections. 5esides/ such a child does not have leal riht of inheritance. The eneral la$ relatin to uardians and $ards is contained in the *uardians and . 8AS? #A< hilips Alfred :alvin v .B. *onsalves 8+TAT+FN A+- 1999 ;er 13/ + (2000) :8 @>0 #?*A# +SSSU?
The only statutes overnin adoption in +ndia is the 6indu Adoption and :aintenance Act 19@" and The Buvenile Bustice 8are and rotection of children Act 2000. +t is this Act that reconises the adopted child as hisD her o$n children as a natural born but rest of the other personal la$s do not possess separate Act but they can adopt child under the *uardians and
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA Since the Buvenile Bustice Act is a secular la$ so the 6indus/ 8hristians and the :uslis can adopt their child and there is no such restrictions and therefore/ there is a reat need of Unifor 8ivil procedure code only throuh $hich probles reardin adoption is solved. So the concept of Buvenile Bustice Act $as brouht up. CHAPTER IV 4.1 THE UVENILE USTICE ACT 2000
The National echanis of the child leislation is the Buvenile Bustice care and protection of children Act 2000 as aended in 200". The *overnent the *overnent of +ndia enacted the Buvenile Bustice Act in 193". +t outlines t$o taret roups naely i. ii.
8hildren in need of care and protection. Buvenile in conflict $ith la$.
Adoption can be a ost beautiful solution not only for the childless couples but also for the bachelors/ unarried $oens/ and divorced $oen and also for the hoeless children. +t enables a parentCchild relationship to be established bet$een persons not bioloically related. +t is defined as a process by $hich people ta&e a child not born to the and raises it as a eber of their faily. Adoption as a leal concept $as available only aon the ebers of the 6indu 8ounity ecept $here the custos perits such adoption for any section of the polity. Fnly 6indus are allo$ed to leally adopt the children and the other counities could only act as leal uardians of the children. Article >> of the constitution declares that 'he state sha endea'o"# to sec"#e fo# the citi:ens a "nifo#m ci'i code th#o"gho"t the te##ito#! of India,.
7;
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA clearance fro child $elfare coittee that a particular child is free for adoption there $ill be terination of parental=@. The Act is &no$n as 'The -eforatory Act, deals $ith t$o cateories of child in need of care and protection and children in conflict $ith the la$. This Act provides for the establishent of various &inds of +nstitutions such as
8hildrenHs hoe for the reception of child in need of care and protection. Special hoes for the reception of child in conflict $ith la$. Fbservation hoes $hich are eant for the teporary reception of child durin the
pendency of any in7uiry. After care oraniEations $hich are eant for the purpose of ta&in care of children
after they have been dischared fro childrenHs hoe to special hoes. Under the Buvenile Bustice Act as it is a secular la$s it provides an opportunity to adopt a child irrespective of the reliion $hether the couple can be 6indu/ :usli/ 8hristian or any other reliion. The author li&es to say $hy there is a need for the Buvenile Bustice Act and aendent to it this is because as per the National 8rie -ecords 5ureau data it sho$n that there has been an increase of offences coitted by the %uveniles/ especially in the ae roup of 1"C13. This can be proved by a siple eaple $here $hich happened in the year 2012 a elhi rape case. The only reason for this is happenin is because of the child is not iven $ith the love/ care and affection. The author li&es to point out that because of the lac& of adoption in +ndia is that ain reason that the child are not iven $ith sentients and faily situation $here they can actually feel the real love and affection. Fnly $ay to stop this &ind of cries that are prevailin in +ndia can only be solved by the process of adoption. Fnly then the child $ill ro$ in a situation $here he can fell the sentients/ love and carin. 5asin on the record iven by the N8-5 it clearly says that crie rate are increasin year to year so drastically The nuber of cries and their drastic increase are listed in the table sho$n belo$=" 7$ Nishant :ehrotraI #a$ overnin Adoption in +ndiaI httpsDD$$$.lin&edin.coDpulseDla$sC overninCadoptionCindiaCnishantCehrotraMforceNoSplashtrue 29th Auust 201"
78 Apoorva Shan&ar/ he "'enie "stice Bi /015/ httpDD$$$.prsindia.orDtheprsbloDMp="10 accessed on 2@ th Septeber 201"
7%
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA Accordin to the author opinion the bac&Cscreen for these to ta&e place is purely because of the absence of love and affection. This can be provided to the child only throuh the Adoption.
%@'":'s 9'$-''" 161 ?'#&s #33&'*'"+'+ %"+'& IPC C&8'
2005
2015
5urlary
1/1"0
2/11
-ape
29=
1/=33
;idnappinDabduction
1@"
9==
-obbery
1"@
330
:urder
=23
3>@
Fther offences
11/3=9
19/">1
T($#:
1,41
25,04
The Buvenile Bustice Act is a secular la$ $herein the parent or parents are allo$ed to adopt the child irrespective of the ae/ ender/ caste/ reliion/ se or any other factor. The Buvenile Bustice Act has been aended t$ice in 200"/ 2011and 201@. :ore deands to aend the act have been in the rec&onin. ) > S88 1 7&
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA irrespective of the reliion also held that every person irrespective of the reliion heD she professes is entitled to adopt. And also in the very %udeent in an Baa: ' Anand 9"nicipait!FD & the t$in *eran children born throuh surroacy $ere ranted an eit perit on the courtHs directions to 8A-A to perit their adoption by *eran parents.
CHAPTER V 5.1 INTERCOUNTR ADOPTION
The concept of interCcountry adoption is relatively a ne$ concept. Since it is a ne$ ethod of Adoption there is no leislation eist $hich priarily provides for the rules reardin interC country adoption. There is ore than one $ay to build a faily and adoptin a child into your hoe. 5y the virtue of ratification of the conventions on the -ihts of the child/ *overnent of +ndia has reconiEed the childHs riht to a faily especially $ithin its o$n faily ebers. The conventions on the +nter Adoption coin into force in +ndia $ith the effect fro 1.10.200=I the +nterC 8ountry Adoption is the process by $hich the individual has to
Adopt a child fro a country other than your o$n throuh peranent leal eans 5rin that child to your country of residence to live $ith the adopted person peranently. +nterCcountry adoption is siilar to doestic adoption. 5oth consist of ' he ega
t#ansfe# of pa#enta #ights and #esponsi%iities f#om a chid8s %i#th pa#ents o# othe# g"a#dian to a ne$ pa#ent o# pa#ents. his is done so %! $hich the adopted chid is %eing %#o"ght into the adopted pe#son co"nt#! pe#manent!,. The landar& case $hich has to be decided here $ith respect to the concept of +nterCcountry adoption is the #a&shi ;ant andeyHs case >0. This case laid do$n fe$ principles overnin the rules for +nterC country Adoption. The case $as instituted on the basis of a letter addressed to the court by a la$yer/ #a&shi&ant pandey allein that the social oranisations and voluntary aencies enain in the $or& of offerin +ndian children to forein parents are induled in alpractices.
7: A+- 2010 *u% 21 #; (193>) A+- >"9 193> S8-(2) 9@ 193> S88 (2) 2>> 77
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA Supree 8ourt in this case epressed its opinion and fraed certain rules for the +nterCcountry adoption The 6onourable 8ourt asserted that/ ' Whie s"ppo#ting Inte#2co"nt#! adoption& it is necessa#! to %ea# in the mind the p#ima#! o%;ect of gi'ing the chid in adoption %eing the $efa#e of the chid& g#eat ca#e has to %e e)e#cised in pe#mitting the chid to %e gi'en in adoption to the fo#eign pa#ents. If s"ppose the adopti'e pa#ents in the fo#eign co"nt#! ma! not %e a%e to p#o'ide to the chid a ife of mo#a and mate#ia sec"#it! o# the chid ma! %e s"%;ected to mo#a and se)"a a%"se o# fo#ced a%o"# o# e)pe#imentation fo# medica o# othe# #esea#ches in s"ch sit"ations these chid#en a#e paced in his he# o$n co"nt#!,. +t is stated that in the first place/ every application fro a foreiner desirin to adopt a child ust be sponsored by social or child $elfare aency reconised or licensed by the overnent of the country in $hich the foreiner is a resident. No application by a foreiner for ta&in a child in adoption should be entertained directly by any social $elfare aency in +ndia $or&in in the area of the +nterC country adoption or by any institution or centre or hoe to $hich children are coitted by Buvenile 8ourt >1. The Supree 8ourt also insisted the ae $ithin $hich a child should be adopted in case of +nterCcountry adoption. ' If a chid is to %e gi'en in Inte#2co"nt#! adoption& it $o"d %e desi#a%e that it is gi'en in s"ch adoption %efo#e it competes the age of F !ea#s ,. Such a rulin $as delivered by the Supree 8ourt because it felt if a child is adopted by forein parents before heDshe attains the ae of =/ he Dshe has ore chances of assiilatin to the ne$ environent and culture>2. The statistical data of interCcountry adoption and inCcountry adoption accordin to the 8A-A are listed belo$ >=
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2011 (BanP11 to :archP12)
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#% :ohit Aar$al/ he 6a#ado) of Inte# @o"nt#! Adoption/ httpDD$$$.lealserviceindia.coDarticlesDpard.ht accessed on 2@ th Septeber 201"
#& !rof Ku,um2 op.cit 2 /6%7 #7 htt/<==cara6nic6in=Inner'ontent6a,/4>Id?:;@Ado/tion Stati,tic, acce,,ed on &$th Se/tember &;%8 7#
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA
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CHAPTER VI 6.1 CENTRAL ADOPTION RESOURCE AGENC (CARA)
A ne$ procedure for handlin children in conflict $ith la$ has been proposed. A revaped child $elfare coittee has been identified/ epo$ered and iven statutory functions. :andatory reistration of childcare institutions has been provided. Fbservations/ shelter and special hoes ay be established by state overnents. 8A-A 8entral Adoption -esearch Authority has been ade a statutory body vested $ith functions of inCcountry and interCcountry adoptions. Section @3 of the Act ephasis on +nterC country adoptions/ statin that all applications for adoption shall be filed before a principal :aistrate of the concerned %urisdiction $here the reistered adoption aency is located >>. 8A-A is an autonoous body and also ratified 6aue conventions of 199= and the United Nation eclaration of the -ihts of the 8hild adopted by the eneral assebly of the united nation in 1939 on inter country adoption. #ater Buvenile Bustice Act 2000 $as passed for children in need of care and protection. +nterCcountry adoption of +ndian children is overned
## Anil :alhotra/ "'enie "stice *a$ and @ARA/ httpDD$$$.ai%f.orDdo$nloadDocuentationJ?NDBU?N+#?JBUST+8?J#A
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LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA by a set of uidelines. These uidelines are a follo$ up of various directions iven by the Supree 8ourt of +ndia in *.. 6ande! ' nion od India 75 and other cases. +n this case the ape court held that sic ether is no statutory enactent in our country providin for adoption of a child by forein parents or layin do$n the procedure $hich ust be follo$ed in such a case/ resort is had to the provisions of the *uardians and ".
To strenthen adoption rules and facilitate adoption $ithout any hassles/ *overnent of +ndia under advice of the Supree 8ourt constituted a 8entral Aency ! 8entral Adoption -esource Aency norally called as 8A-A $ith Ne$ elhi as base to set up uidelines for adoption tie to tie safeuardin $elfare and rihts of children $hile rantin adoption or uardianship under 6indu Adoption and :aintenance Act 19@"/ *uardian and
8A-A has issued separate policy uidelines for the interCcountry and inCcountry adoptions. The ain policy adopted is placeent aencies involved in adoption should strictly follo$ and coply $ith the uidelines of 8A-A and reister $ith respective state overnents. No ob%ection certificate fro 8A-A is ade andatory in case of all interCcountry adoption before placeent aency process the application in copetent %udicial courts. There is also the first preference iven for the +ndia parents rather than the forein parents in 8A-A and orein parents should adopt throuh reconiEed aency and the ae of the child should be belo$ = years. #$ (193>) A+- >"9 193> S8-(2) 9@ 193> S88 (2) 2>> #8 httpDDcarins.nic.inDparentsD*uidelinesCforCAdoption.htl / accessed on 2@th Septeber 201". 78
LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA 6.2 UNIFORM CIVIL CODE FOR ADOPTION
#a$s relatin to crie and punishent are the sae for all citiEens in +ndia/ and so are the la$s relatin to coerce/ contracts and other affairs. 5ut there are/ as is evident fro the case la$s and the authorities put forth above that there are no unifor la$s reardin faily atters in the +ndian contet. +t has been re7uested since lon tie for unifority in such la$s. To treat all citiEens e7ually one ust have sae la$s for everybody. +n case of adoption/ the conspicuously different la$ for 6indu and NonC6indu creates an eotional proble. The NonC6indu $ho ay adopt a child and treat hiD her as their o$n bioloical child. 6ence there has been a cry for a unifor civil code $ith respect to adoption.
A unifor civil code in adoption la$s $ill not violate the fundaental riht to reliion. +t should be reebered that the directive principles of state policy andate the state to brin unifority in la$s. +ndia bein sinatory to 8onventions on the -iht of a child/ such unifority is necessary so that the rihts to adoptive children can $ell be enhanced and protected. Since adoption is a salient feature of 6induis/ the 6indu Adoption and :aintenance Act 19@" statutorily reconiEe adoption. The Act brouht about sinificant chanes to the la$ of adoption aonst 6indus and has iproved the position of $oen in this reard. +t is absurd that :usli and 8hristian +ndians cannot leally adopt a child for lac& of unifor code on adoption. +f a unifor civil code is enacted li&e the 6indu $oen/ the $oen follo$in other reliion $ill also be allo$ed to adopt.
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LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA reebered that the directive principles of state policy andate the state to brin unifority in la$s>.
CHAPTER VII .1 CRITICAL ANALSIS
Adoption has al$ays considered a $onderful opportunity to provide the child $ith hoe and the carin parents. +t offers an ecellent alternative to institutional care for the abandoned/ destitute or nelected child in an atosphere of happiness/ love and understandin $hich only a faily can provide. inally Adoption as a leal concept $as available only aon the ebers of the 6indu counity ecept other custo perits such adoption for any section of the polity. Fnly 6indus $ere allo$ed to leally adopt the children and the other counities could only act as leal uardians of the children. +n the authorHs opinion there are various dra$bac&s and loop holes in the 6indu Adoption and :aintenance Act and also *uardianship in the eistin la$s on adoption in +ndia. Soe of the dra$bac&s and loopholes here as follo$s #9 Shrada *iri%esh shara( nifo#m @i'i code and Adoption in IndiaI httpsDD$$$.researchate.netDpublicationD22319>>"=JUniforJ8ivilJ8odeJandJAdoptionJ#a$sJinJ +ndia acce,,ed on 7;th Au+u,t &;%8
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LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA Accordin to Section of the 6indu :inority and *uardian ship Act 19@" it siply says that on adoption the natural uardianship of the adopted son passes on fro its natural parents to the adoptive father and after hi to the adoptive other. This section in its nature and contents has three inherent defects i. ii. iii.
irst/ it fails to ta&e notice of the cases of adoptive dauhter Second/ it also fails to consider the cases of adoption by $oen havin no husband Third/ Section is confined to the natural uardianship of adopted son only Accordin to section 3 and proviso of section/ the eplanation entions about the
capacity of a ale and a feale 6indu to ta&e in adoption. :ale 6indu has the capacity to ta&e a son or a dauhter in adoption. Fbtainin the consent of the $ife or if there are ore than one livin $ife the consent of all of the is necessary for adoption/ unless they or any of the suffered any of the enuerated infirities renderin such consent unnecessary. The ob%ect underlyin section of the 6indu Adoption and :aintenance Act is to copletely abroate the custoary 6indu la$ under $hich a ale 6indu can ipose the relationship of an adoptive other upon his $ife $ithout her consent or even despite her ob%ections. After the Act/ if the re7uisite consent of the $ife is obtained/ the $ife is rearded as the adoptive other because the adoption so ade by a ale 6indu is not only hiself but by his $ife as $ell. Section 1> contains the deein provisions so called/ in the case of an adoption by a ale or feale and this has to be read $ith sections and 3. +t is also iportant to notice that all the 'deein, provisions relatin to affiliation in section 1> of the 6indu Adoption and :aintenance Act are only in relation to livin persons and not to persons $ho $ere dead at the tie of the adoption. Section 1>(1) refers only to the livin $ife $ho should be deeed to be the adoptive other and it does not include a $ife $ho $as dead at the tie of the adoption. This sho$s that the deceased $ife is not to be rearded as the adoptive other of the boy adopted. +f in the case of a deceased $ife there is no such affiliation the position is a fortiori in the case of a deceased father.
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LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA to adopt ore than one child of the sae se. :ost of these children then o in for the interC country adoption. So if no$adays people rather opt to adopt a child under Buvenile Bustice Act 2000 because under this Act the child of sae se can be adopted $here it is not in the case of 6indu adoption $here ore than one child of sae se cannot be adopted and the Buvenile Bustice Act also rants for the adoption of child under various reliions but it not so in 6indu Adoption because under 6indu only 6indu child could be adopted. The author is of the vie$ that the enactent of the Buvenile Bustice Act 2000 and its subse7uent aendent in 200" is definitely a sinificant effort of the leislature to$ards reconition of adoption of orphans by people irrespective of their reliious status. +t canHt be denied that it is a secular leislation only under $hich any person can adopt a child of orphan/ abandoned and surrendered child irrespective of hisDher reliion. +t is ore children oriented unli&e other leislations.
inally/ by concludin that
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LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA
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=2= 68 ". :ohaed Allahabad ;han v :ohaad +sail (133") +#- 3 All 2=> . hilips Alfred :alvin v .B. *onsalves A+- 1999 ;er 13/ + (2000) :8 @>0 3. Sa$an -a v ;alavati A+- 19" S8 1"1 9. Shabna 6ashi vUnion of +ndia (201>) > S88 1 10. Stephanie Boan 5ec&er v state (201=) 12 S88 3"
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LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA S?8FNA-4SFU-8?S 5FF;S 1. Anes lavia/ ami! *a$ and @onstit"tiona @aims& Fford University ress/ 2 nd 2. =. >. @.
-evised ?dition/ Ne$ elhi/ 2011 5.:. *andhi/ ami! *a$ 1/ ?58 ublication/ >th edition/ 6aryana 201@ i$an aras/ ami! *a$& Allahabad #a$ Aency/ 6aryana/ 201= ;usu/ ami! *a$ 1/ #eis Neis ublication/ > th edition/ 6aryana 201@ ;usu/ ami! *a$ *ect"#es I& #eis Neis/ Napur/ 2011
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htt/<==11163a*i(no%6com=bareact,=hinduado/tion,act=hinduado/tio n,act6htm( acce,,ed on 7th Se/tember &;%8 @. ebaditya -oyI Adoption Under Buvenile Bustice Act A clarion call toI httpDD$$$.lealserviceindia.coDarticleDl=2CAdoptionCunderCBuvenileCBusticeC Act.htl accessed on 1st Septeber 201" ". eepa& ;uar era/ Hind" Adoption *a$s C Inte#p#etation %! High @o"#t& httpDD$$$.n%a.nic.inD2.K206induK20AdoptionK20#a$K20andK20Budicial K20interpretationCK20eepa&K20;-.era.pdf accessed on 11th Septeber 201" . r. i%ay al ;hana$alG r. a$an :ittal/ *ega aspects of egitimac! in Indian 6e#specti'e- An o'e#'ie$& httpDDedind.nic.inD%bcDt12Di2D%bct12i2p111.pdf accessed on =1st Auust 201"
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LEGAL FRAMEWORK GOVERNING AO!"ION IN INIA 3. ?volution of :arriae as a Social +nstitution/ httpDDshodhana.inflibnet.ac.inDbitstreaD10"0=D2"@23D3D03JchapterK201.pdf accessed on 10th Septeber 201" 9. ;athryn atricelli/ Int#od"ction to adoption f#om the adopti'e pa#ent pe#specti'e& httpsDD$$$.entalhelp.netDarticlesDintroductionCtoCadoptionCfroCtheCadoptiveC parentCperspectiveD accessed on 2>th Septeber 201" 10. :ohit Aar$al/ he 6a#ado) of Inte# @o"nt#! Adoption/ httpDD$$$.lealserviceindia.coDarticlesDpard.ht accessed on 2@th Septeber 201" 11. Naresh 8handraSenupta/ ?volution of Ancient +ndian #a$I httpsDD$$$.scribd.coDdocD201"90>DAFT+FNC+NCAN8+?NTC+N+A accessed on 29th Auust 201" 12. Nera% eena/ Adoption la$s in +ndia 8hallenin eistin la$sI httpDD$$$.anupatra.co.inDne$slineDarticlesDUploadD?3??>9=C11>5C>?@5C A01>C"32?5129=01.pdf accessed on 29th Auust 201" 1=. Nishant :ehrotraI #a$ overnin Adoption in +ndiaI httpsDD$$$.lin&edin.coDpulseDla$sCoverninCadoptionCindiaCnishantCehrotra accessed on 29th Auust 201" 1>. Ni,hant MehrotraB La1 +o3ernin+ Ado/tion in IndiaB httpsDD$$$.lin&edin.coDpulseDla$sCoverninCadoptionCindiaCnishantCehrotraM forceNoSplashtrueI accessed on 29th Auust 201"
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.:. Nair/ A report on traffic&in in $oen and children in +ndia/
httpDDnhrc.nic.inDocuentsD-eportonTraffic&in.pdf accessed on 10th Septeber 201" 1". ersonal #a$sI httpDD$$$.archive.india.ov.inDcitiEenDla$norder.phpMid1" accessed on 1st Septeber 201" 1. Ra&esh ubbudu/ ,emand fo# adoption mo#e than fo"# times the n"m%e# of a'aia%e +ids& httpDD$$$.ne$slaundry.coD201"D0D11DdeandCforCadoptionC oreCthanCfourCtiesCtheCnuberCofCavailableC&idsD accessed on 2@th Septeber 201" 13. -oit Aar$al/ Adoption- Hind". 9"sim& @h#istian and 6a#siI httpDD$$$.lealserviceindia.coDarticlesDhcpJadopt.ht accessed on 1st Septeber 201"
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