Adoption deed

• Covered under Hindu Adoption and Maintenance Act of 1956

• Guardians and Wards Act 1890

• Juvenile Justice Care and Protection Act 2000

Hindu Adoption and Maintenance Act, 1956

• Applicable for Hindus, Buddhists, Jains and Sikhs

• Not applicable for Muslims, Parsis, Jews• Although adoption is the best resort for a child

in absence of his natural parents, personal law of Muslims, Christians, Parsis and Jews does not recognize complete adoption. Thus, individuals belonging to these religions do not have an enabling law to adopt a child.

• They can take the child in 'guardianship' under the provisions of the Guardian and Wards Act, 1890

Definition of Adoption

• Transplantation of child from the family of his natural parents to another family by mutual consent of adopting parents and natural parents

Who can adopt?

• Adoption by males – Any Hindu male who is of sound mind and not a minor can adopt

• If he has a wife then her consent is essential unless –

• 1. the wife has finally and completely renounced the world

• 2. has ceased to be hindu• 3. Has been declared to be of unsound mind by

a court of competent jurisdiction• If a person has more than one wife living, the

consent of all of them is required

Who can adopt?

• Adoption by females- any hindu female• Who is of sound mind• Who is not a minor• Who is not married or if married, whose

marriage has been dissolved• Whose husband is dead or has completely

renounced the world• Husband has ceased to be hindu• Husband had been declared of unsound mind

Who can give in adoption?

• No person except father or mother or guardian has the capacity to give the child in adoption

• The father, if alive, shall alone have the right to give in adoption but he can do so only with the consent of mother if she is alive unless

• 1. the wife has finally and completely renounced the world

• 2. has ceased to be hindu• 3. Has been declared to be of unsound mind by

a court of competent jurisdiction

Who can give in adoption?

• The mother may give in adoption if the father

• 1. is dead

• 2. has finally and completely renounced the world

• 2. has ceased to be hindu

• 3. Has been declared to be of unsound mind by a court of competent jurisdiction

Who can give in adoption?

• Where both father and mother • 1. are dead • 2. have finally and completely renounced the world• 3.have ceased to be hindu• 4.Have been declared to be of unsound mind by a court

of competent jurisdiction• 5. have abandoned the child• 6. Parentage is unknown• In above mentioned cases the guardian may give the

child for adoption with previous permission of the court. The guardian is appointed by a court of compent jurisdiction

Who may be adopted?

• 1. only hindu

• 2. Not already adopted

• 3. not married unless there is a custom which permits married persons being taken in adoption

• 4. Not completed the age of 15

Essentials of a valid adoption

• If adopting a son, the adoptive parents must not have a son, son’s son or son’s son’s son

• If adopting a daughter, the adoptive parents must not have a daughter or son’s daughter living at the time of adoption

• If a male adopts a female, the adoptive father should be at least 21 years older than the child to be adopted

• If a female adopts a male, the adoptive mother should be at least 21 years older than the child to be adopted

Essentials of a valid adoption

• The same child may not be adopted simultaneously by 2 or more persons

• There must be actual give and take between parents and guardians or between both sets of parents. The ceremony is called datta homam but is not a pre-requisite for a valid adoption

Effects of adoption

• The adopted child becomes a part of the adoptive family for all purposes with effect from the date of adoption and all ties with family of birth are severed except-

• 1. the child cannot marry a person whom he or she could not have married, if he or she had continued in the family of birth

• 2. any property vested in the child before adoption shall continue to vest along with the obligations attached to ownership including obligation to maintain relatives

• 3. the adopted child shall not divest any person of any estate which vested in him or her before adoption

Attestation

• Deed must be executed by giver as well as receiver and must be clearly attested as bond

Registration

• Section 16 of Hindu Adoption and Maintenance Act 1956 requires registration of the adoption deed

• Stamp duty is also chargeable on adoption deeds under Article 3 Schedule1 of Indian Stamp Act

• Couples from all religions can gain the status of adoptive parents under the Juvenile Justice (JJ) Act (Care and Protection of Children), 2000.

• An amendment brought in JJ Act in 2006 incorporated provisions regarding adoption and has allowed people following Christianity and Islam also to get the status which was denied to them till recently. They were only given the status of guardianship till the child attained 18 years.

• JJA, 2000 has managed to legitimize uniform adoption, when previous attempts to pass the Adoption of Children Bill had failed.

• Section 41 of the Act deals with carrying out investigations and giving children up for adoption in accordance with the guidelines issued by the State governments.

• The Child Welfare Committee is to declare a child free for adoption in the case of abandoned children. Under this Act, a child may be given for adoption irrespective of the number of living biological sons or daughters.

• This is contrary to the provisions contained in the Hindu Adoption and Maintenance Act (HAMA). The HAMA permits a Hindu to adopt a child whose gender differs from the gender of the biological child.

• The provisions with regard to adoption under the new Act enable a Muslim, Parsi or Christian to take a child in adoption. A Hindu can adopt a child whose gender is same as that of the biological child .

Section 41 Sub section 6 of Juvenile Justice Act amended in 2006

• The court may allow a child to be given in adoption-

• a. to a person irrespective of marital status or

• b. to parents to adopt a child of the same sex irrespective of the number of biological sons or daughters or

• c. childless couples

• Earlier, only the Hindu Adoption and Maintenance Act gave all the rights of a biological child to the adopted child and the status of adoptive parents. A number of couples in other religions are now going in for correcting the status of guardianship to adoptive parents under the provisions in the amendment brought about in JJ Act 2006.

Flaws and loopholes of the Juvenile Justice (Care and Protection of Children) Act, 2000

• Existence of a prior law relating to adoption for Hindus,

• The non-existence of adoption laws for non-Hindu communities,

• The prohibition of adoption in the religious laws of some communities, for example Muslims

• The silence of the Act on the issue of inter-country adoptions. 

• It is a well-settled principle of Jurisprudence that when there is a general and specific law on the same aspect of law, the latter has precedence over the former. Consequently, the Juvenile Justice Act is rendered fruitless and ineffective by the very presence of Hindu Adoptions and Maintenance Act, 1956, in case of Hindus. 

• The Muslims challenge the constitutionality of the provision (section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000) per se, since the concept of adoption runs contrary to the injunctions of the Holy Koran.

Procedure for Inter Country Adoption

• The Supreme Court of India has laid down that every application from a foreigner/NRI desiring to adopt a child must be sponsored by a social or child welfare agency recognized or licensed by the Government or a Department of the Foreign Govt. to sponsor such cases in the country in which the foreigner is resident. The foreign agency should also be an agency ‘authorised’ by CARA(Central Adoption Resource Agency), Ministry of Social Justice & Empowerment, Govt. of India. No application by a foreigner/NRI for taking a child in adoption should be entertained directly by any social or child welfare agency in India.

Criteria for Foreign Prospective Adoptive Parents

• Married couple with 5 years of a stable relationship, age, financial and health status with reasonable income to support the child should be evident in the Home Study Report.

• Prospective adoptive parents having composite age of 90 years or less can adopt infants and young children. These provisions may be suitably relaxed in exceptional cases, such as older children and children with special needs, for reasons clearly stated in the Home Study Report. However, in no case should the age of any one of the prospective adoptive parents exceed 55 years.

• Single persons (never married, widowed, divorced) up to 45 years can also adopt.

• Age difference of the single adoptive parent and child should be 21 years or more.

• A FPAP in no case should be less than 30 years and more than 55 years.

• A second adoption from India will be considered only when the legal adoption of the first child is completed.

• Same sex couples are not eligible to adopt.