Adoption in India: Legal Perspective

Introduction:

Adoption is a legal process in which the person attains the responsibility of raising a child which is not his/her biological child but gets the custody for same from the biological parents of the child. The reason for giving up one’s child can be anything and no one should judge that. The current population of the world is on the rise which indicates depletion of resources over time. The poverty of people forces them to make some of the harsh decisions they have to. Many parents give up their child to the foster care as they are not in a condition to take proper care of the child or give them a healthy life.

Adoption is evolving as a new way of family making where the parents undertake the legal responsibility of taking care of and raising a child. Many people might think that the infertility of the parents can be the reason to adopt a child. Well, that is not the case. Many people who can have their biological child also opt for adoption. Although it is not as easy as it seems to adopt a child and undertake their parenting, some certain legal criteria are to be considered while adopting a child.

Is there any difference between adoption and guardianship?

Adoption and guardianship might sound like words from the same families but both of these terms are different from each other and should not be used interchangeably. In adoption, the adoptive parents of the child get the parental rights whereas in guardianship, the biological parents have the parental rights of the child and the guardian doesn’t get to exercise any such rights over the child. The guardian of a child has the responsibility to take care and give consent on his behalf. There is no scope for achieving the parental rights over a child in guardianship. Guardianship can exist for a limited time and can be ended at any time by the court. Adoption, on the other hand, provides the legal parental rights of a child to the parents and they have the responsibility of the child. It creates a relationship between the adoptee and the adoptive parents.

What is the purpose/motive behind adoption?

Adoption cannot be seen as an act of charity. Adoption can help in bringing happiness in the lives of people who cannot have their child and also it changes the fate of the child. Some basic reasons for adoption can be:

1. Some people don’t enjoy the opportunity of having their child. Adoption can be seen as a way to family making.
2. A child is responsible for carrying on the family name and inheritance. Adoption of a child will increase the chance of carrying on the family name.
3. Adoption can help in ensuring the protection of parents in their old age.

Although there can be numerous reasons behind adoption but it is a boon for society.

Essentials of Adoption

The Hindu Adoption and Maintenence Act[1], 1956 regulate provisions regarding adoption and maintenance in India. The act aimed at providing a legal framework for the adoption of children in India and a legal obligation to provide maintenance to family members. The act applies to Hindus[2] only. The Act provides for 3 main essentials of adoption. These are:

Legal Capacity to Adopt

Section 6 of the Hindu Adoption and Maintenence Act, 1956 allows both males and females to adopt a child no matter whether they are married or not. The basic prerequisite of being able to adopt a child is the age of majority. The person adopting the child should have attained the age of majority and most importantly, he/she must be a Hindu by religion.

The requirements of adoption by a Hindu male is given in Section 7 of the Hindu Adoption and Maintenence Act, 1956. These are:

1. The person should have attained the age of majority.
2. The person should be of sound mind. Unsoundness of mind would lead to the termination of adoption.
3. The consent to adopt a child should be given by the wife. This requirement can be ignored if the wife is not able to give her consent due to her unsoundness of mind.
4. In cases of a man having more than one wife, then he must get the consent of all wives.  It was held in “Bholooram & Ors. V/s Ramlal & Ors.[3]” where the plaintiff didn’t take consent from one of his two wives and the validity of such adoption was questioned.

Capacity of Hindu female to take in adoption

The requirements of adoption by a Hindu female is given in Section 8 of the Hindu Adoption and Maintenence Act, 1956. These are:-

• The person should have attained the age of majority.
• She should be of sound mind.
• She must be unmarried, divorced, or a widow in order to adopt a child. In case, her husband is alive then she will not be able to adopt a child.
• A married woman can never adopt a child unless her husband has ceased to be a Hindu,
• Her husband has renounced from this world,
• If her husband has become of unsound mind.

The soundness of the mind should be limited to only the intellectual capacity of a person. If a person is of sound mind but suffers from some disability though he/she can give his/her consent to the adoption, then such person can not be barred from adoption.

Legal Capacity to Give in a Child for Adoption

Section 9 of the HAMA, 1956 allows only parents or guardians to give in the child for adoption.  The biological father and the mother have the same rights in respect of giving their child for adoption. However, the father of a child gets more say in this matter and if the father is not able to give his consent then the mother can give her consent. If the father becomes of unsound mind or ceases to be a Hindu, then he will not be able to exercise his right. In case, if a woman remarries then she loses the right to give the child for adoption. This was held in “Ram Sakhi vs Daroga Prasad Singh And Ors”[4] that once a widow remarries, she loses her right to give in the child for adoption.

When the biological parents of the child are not present or they become of unsound mind and it is not possible to get their consent, then the guardian has the right to give in the child for adoption.

Legal Capacity to be Adopted

Some requirements should be fulfilled for a child to be considered for adoption:-

1. The child should be of the Hindu religion.
2. The child is below 15 years of age and must not be adopted before.

Rights of adoptive parents to dispose of their property

According to Section 13 of the HAMA,1956, the adoptive parents have the absolute right to dispose of their property after adoption. The right of disposal of the property would remain in their hands. Adoption of a child would not deprive them from exercising of this right. If parents want, they have the power to dispose, or transfer their property by will or inter-vivos. The provisions of transfer of property by will and inter-vivos are provided in the Indian Succession Act and Transfer of property act respectively. Also, an adopted child eventually becomes the natural child in a family and gains the coparcenary rights in the family. An adopted child would become a coparcener in the family property and will enjoy all the coparcenary rights and privileges.

What constitutes a valid adoption?

It must have become clear that adoption is not an easy 2 step process. The procedure of adoption can be complex for some people. However, for a valid adoption, the following requirements should be fulfilled:

1. The adoptive parents are barred from adopting another child of same-sex.
2. The same child cannot be adopted by more than one parent.
3. The adoptive parents should be at least 21 years older than the respective age of the adoptive child.

Documents required for a Valid Adoption

1. Identity proof such as voter card, PAN card, driving license, etc.
2. Address proof
3. Marriage certificate
4. Health certificate
5. Financial statement for last 6 months including property details and loan details, in case, if the family has taken any loan.
6. An adoption decree is required in case if the adoptive family has adopted any child earlier.

Conclusion

Adoption of a child means the transfer of parental rights from biological parents to the adoptive parents. The provisions under HAMA, 1956 provide clear grounds for adoption. The requirements must be fulfilled before adopting a child or giving a child for adoption. The 3 essentials provided on adoptions acts as a pillar that ensures the rightful conduct. The end motive behind adoption should be the proper care and protection of a child.

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References:

[1] The Hindu Adoptions and Maintenance Act, 1956,  No.78, Act of Parliament. (India)

[2] The Hindu Marriage Act, 1955,  s 2(1).                              

[3] Bholooram  & Ors. vs Ramlal & Ors., 1989, AIR 1989 MP 198.

[4] Ram Sakhi Kuer And Anr. vs Daroga Prasad Singh And Ors., 1981, AIR 1981 Pat 204.