CRITICAL ANALYSIS OF ADOPTION IN INDIA

Army Institute of Law, Mohali

In the partial fulfillment of BA LLB 5 Year Cousre

Submitted to Submitted by
Dr. Kamaljit Kaur Mohini
1470
Acknowledgement

I, Mohini a second year student from Army Institute of Law would like to express my deepest
gratitude to Dr. Kamaljit Kaur ,Assistant Professor of Law, for her kind support and guidance.
She has helped me in making this project through enlightening me on this topic. I am really
thankful to her for cooperating with me whenever required. I have learnt a lot through my project
and the various aspects of adultery are now clear in my mind.

Mohini

1470

2nd year
 INDEX
1 Acknowledgement………………………………………………………………… 2

2 Index………………………………………………………………………………. 3

3 Introduction………………………………………………………………………...4

4 Adoption under Hindus…………………………………………………………….4

5 Hindu Adoption and maintenance Act, 1956………………………………………4-6

6 Adoption under Muslim law……………………………………………………….7-8

7 Adoption under Christians and Parsis……………………………………………...8

8 Uniform Civil Code………………………………………………………………..8-10

9 Benefits of this Act…………………………………………………………………11

10 Criticism…………………………………………………………………………..12

11 Conclusion………………………………………………………………………..13
 Critical Analysis of Adoption in India
In recent times adoption was to provide childless parents an opportunity to get their own children
but that was to be taken place within the restricted relations. But now the times have changed and
adoption laws are framed as to provide JUSTICE TO CHILDREN.

Adoption provides a very important function in Indian society. India has long tradition of child
adoption. In olden days, it was restricted within the family and was covered by social and
religious practices. But with the changing times, adoption beyond the contour of family has been
institutionalized and legalized.1 But still most of the religions don’t allow adoption which
includes Muslims, Christians etc.

Although there is no general law on adoption, yet it is permitted by a statute amongst Hindus and
by custom amongst a few numerically insignificant categories of persons. Muslims, Christians
and parsis have no adoption laws and have to approach under the Guardians and Wards Act,
1890. Muslims, Christains and Parsis can take a child under the Guardians and Wards Act, 1890.
They can take a child under the said Act only under foster care.2

ADOPTION IN HINDUS
The Hindus can adopt under Hindu Adoption and Maintenance Act, 1956. Only Hindus can
adopt under this Act. Hindus include

1. Hindu by birth Hindu, Buddhist, Jain and Sikhs

2. Hindu by Religion: all converts and reconverts.
3. All those who are not Muslims, Christians, Parsis or Jews.

Earlier only a son could be adopted but now both son or daughter could be adopted. Earlier only
husband could adopt but now any woman married or unmarried, widow can adopt a child. Under
the old Hindu Law, only a male could be adopted and an orphan could not be adopted. Then even
if a male was to be adopted, restrictions were imposed based on Caste and Gotra. A female child
could not be adopted under the Hindu Law. Under the old Hindu law, only the male had a right
to adopt and the consent or dissent of his wife to the proposed adoption was immaterial.

1
A.S. Shenoy, Child Adoption Policies in India- A Review,
http://unstats.un.org/unsd/vitalstatkb/Attachment482.aspx Assessed on 5th febuarary, 2016.
2
Romit Agrwal, Adoption under Hindus, Muslims Christians and Parsis Laws,
http://www.legalserviceindia.com/articles/hmcp_adopt.htm , Assessed on 5th Feburary, 2016.
But such restrictions have changed in the course of time. Such gender biases have been
minimized in today’s modern society. Under the modern Hindu Law, every Hindu, male or
female has the capacity to make an adoption provided he or she has attained majority and are of
sound mind. Most of these laws, rules and regulations have been enumerated in the Hindu
Adoption and Maintenance Act of 1956.3

Hindu Adoption and Maintenance Act, 1956

The Hindu Adoption and Maintenance Act was passed after Independence as part of
modernizing and codifying Hindu Law. The Act to some extent reflects the principles of equality
and social justice by removing several (though not all) gender based discriminatory provisions.

This Act deals with topics such as capacity to adopt, capacity to give in adoption, effect of
adoption, gender bias and such others.

Capacity to Adopt: In this Act it is said that any adult Hindu male who is of sound mind can
adopt a child. If the said man is married, the consent of the wife is necessary. Likewise, a female
adult Hindu of sound mind could adopt a child if she is

1. Unmarried
2. Divorced
3. Widowed or
4. Her husband suffers from certain disabilities
1. Ceased to be a Hindu
2. Has renounced the World
3. Has been declared to be of unsound mind by the court.4

Capacity to give in Adoption: The section 9 of this Act states that only the father, the mother or
the guardian can make the decision of giving a child in adoption. The father can give the child in
adoption only with the consent of the mother, unless the mother has ceased to be a Hindu, has
renounced the world or is of unsound mind. The mother may give the child in adoption if the

3
Legal Framework Governing Adoption Laws in India, http://www.lawctopus.com/academike/legal-framework-
governing-adoption-laws-india/ Assessed on 5th Feburary, 2016.

4
Dr. Paras Diwan, Modern Hindu Law, Allahabad Law Agency, 15 th edition, 2015.
father is dead or has completely and finally renounced the world or has ceased to be a Hindu or
has been declared by a court of competent jurisdiction to be of unsound mind.5

Effect of Adoption: When once a child has been adopted, that child severs all ties with his
natural family. All the right and obligations of natural born children fall on him.

The wife of a Hindu male, who adopts is deemed to be the adoptive mother. Where an adoption
is made with the consent of more than one wife, the senior most in marriage is deemed to be the
adoptive mother and the rest are given the title of step mothers. All laws relating to the adoptive
parents and/or step parents can be seen in ss. 12, 13 and 14 of the Hindu Maintenance and
Adoption Act of 1956.

In this context, an issue came up. The case of Sawan Ram v. Kalavati6, brought out the question
as to whether, in the case of adoption by a widow, would the adopted child be deemed to be the
child of the deceased husband as well, so as to be his heir. The Supreme Court held that the
adoption would not only be by the female, but also to her deceased husband. This argument was
based on the words found in s. 5(1) of the Act.

Also, it has to be noted that the adoptions once made by the parents cannot be cancelled by the
parents, nor can the adopted child renounce the adoptive family and go back to his/her birth
parents. Adoption is generally held to be permanent in nature, with neither parties going back on
their words. This has been stated in section 15 of The Act. But care has to be taken that the
adoption referred to in this section is a valid adoption.7

Gender Bias in Adoption: Though after the enactment of the Act, it has been noted that the
gender discrimination has been eliminated but in actual sense it still exists. A married female
cannot adopt, not even with the husband’s consent, unless her husband dies or suffers from any
disability or renounces the world or so. On the other hand, a husband may adopt with the consent
of the wife. To clearly show the gender discrimination, two cases have been referred. Similarly,

5
Supra4.
6
AIR 1967 SC 1761

7
ADOPTION IN HINDU LAW AND MUSLIM LAW, http://www.lawteacher.net/free-law-essays/family-
law/adoption-in-hindu-law-and-muslim-law-law-essay.php Assessed on 6th Feburary, 2016.
in the matter of a giving a child in adoption, the Hindu male enjoys broader rights than a
corresponding female. The case of Malti Roy Choudhury v.Sudhindranath Majumdar8 is oft
referred to.

In the case of Malti Roy Choudhury, the appellant, Malti had been adopted by the deceased
mother. After her mother’s death, she became the sole heiress and applied for estates and
properties left behind by her mother. There were a lot of evidences which have been presented
by the appellant like proof of the ceremony of adoption, natural parents handing over the child to
the adoptive mother in the presence of her husband and the priest; acknowledgement through
school records; Malti being performed the funeral ceremony of her mother. But however, the
Court did not accept the argument and it was held that, “under the provisions of the act, the
husband alone can adopt, but here, it is an admitted position that Malti was adopted by the
mother Tripti not by the father and thereby, rejected her appeal.”

It is time that law, in this age of equality, takes cognizance of the same and give equal rights to
both men and women with regard to adoption. There is no reason to give to the husband veto
power to deny fulfillment of maternal instincts of his wife.

ADOPTIONS IN MUSLIMS

Muslims, Christians and parsis have no adoption laws and have to approach under the
Guardians and Wards Act, 1890. Muslims, Christains and Parsis can take a child under the
Guardians and Wards Act, 1890. They can take a child under the said Act only under foster care.
Once a foster child becomes major he has all right to break all connections with his adoptive
family. In Mohammed Allahabad Khan v. Mohammad Ismail 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.9

When the Prophet married Khadijah, she gave him a slave known as Zayd bin Hâritha (Zayd, son
of Hâritha). The Prophet took such a good care of Zayd that their relationship changed from that
of a master and a slave into one of father and son. Zayd was one of the first persons to accept
Islam. When his father and uncles came to know about his whereabouts, they came to Mecca and
told Prophet Muhammad that Zayd had been captured by some thieves and sold into slavery. The

8
AIR 2007 Cal 4.
9
Supra2.
Prophet set him free. But Zayd refused to leave Muhammad and go home with his father.
Hâritha, the father of Zayd, became very angry and openly declared that from now on “Zayd is
not my son.” The Prophet immediately responded by adopting Zayd. Zayd came to be known as
Zayd bin Muhammad (Zayd, son of Muhammad). But yet the relation recognized was onl,y of a
foster child and not of real parents.10

The biggest and the most important difference between the Hindu law and the Muslim law is that
the latter does not recognise adoption. Muslim Law takes into account the concept of
acknowledgement. The paternity of the child cannot be established by a Muslim if he adopts a
child of whom he is not the actual father. In Mohammed Allahabad Khan v. Mohammad Ismail
Khan, it was held that there is nothing in the Mohammedan Law similar to adoption as
recognized in the Hindu System and the acknowledgement of parentage is only a substitute for
adoption.
“Adoption is not prohibited, but it is an act towards which religion is indifferent.”11

Adoption in Christians and Parsis

They are even not allowed to adopt under their religious. The only way is given under
Guardians and Ward Act. The reason for legal adoption was never for the sake of the child, Lyall
writes. Children could always be fostered, but adoption was to preserve the family. The Roman
household was a worshiping unit, and it needed a male priest at its head to offer prayers and
sacrifices to the family gods. Worshiping families were the building blocks of Roman society.12

NEED FOR A UNIFORM CIVIL CODE FOR ADOPTION

The Hindu Adoptions and Maintenance Act, 1956 is limited to only Hindus to adopt. But still
there are many more children left who are orphaned, abandoned. A proposed uniform law of
adoption, applicable to all religious communitieshad been introduced in 1972, but dropped due to
opposition from the Muslim communities. “Every child has a right to love and be loved and to
grow up in an atmosphere of love and affection and of moral and material security and this is

10
Adoption in Islam, http://www.al-islam.org/articles/adoption-islam-sayyid-muhammad-rizvi, Assessed on 6th
Feburary, 2016.

11
ADOPTION IN HINDU LAW AND MUSLIM LAW, http://www.lawteacher.net/free-law-essays/family-
law/adoption-in-hindu-law-and-muslim-law-law-essay.php#ftn12#ixzz3zUc2BZmJ Assessed on 5th Feburary, 2016.
12
Biblical Adoption Is Not What You Think It Is, http://www.christianitytoday.com/ct./2013/december/heirs-biblicaliblical-
take-on-adoption.html Assesed on 6th feburary, 2016.
possible only if the child is brought up in a family.” Therefore, if poor, destitute, abandoned
children are to be rehabilitated in a legal and safe manner, then there is a great need for a uniform
adoption law applicable to people belonging to all religions.13

Laws relating to crime and punishment are the same for all citizens in India, and so are the laws
relating to commerce, contracts and other affairs. But there are, as is evident from the case laws
and the authorities put forth above, that there are no uniform laws regarding family matters in the
Indian context. It has been requested since a long time for uniformity in such laws. To treat all
citizens equally, one must have same laws for everybody. In case of adoption, the conspicuously
different laws for Hindus and Non Hindus creates an emotional problem. The non-Hindu parents,
who may want to adopt a child and treat him/her as their own are not legally allowed to call
themselves the parents or claim the child as their own. Hence, there has been a cry for a uniform
civil code with respect to adoption.

A uniform civil code in adoption laws will not violate fundamental right to religion. It should be
remembered that directive principles of States policy mandate the state to bring uniformity in
laws. India being signatory to CRC (Convention on the Rights of a Child), such uniformity is
necessary so that the rights of adoptive children can well be enhanced and protected. Since
Adoption is a salient feature of Hinduism, The Hindu Adoptions and Maintenance Act, 1956
statutorily recognizes adoption. The Act brought about significant changes to the law of adoption
amongst Hindus and has improved the position of women in this regard. It is absurd that Muslim
and Christian Indians cannot legally adopt a child for lack of a uniform code on adoption. If a
Uniform Civil Code is enacted, like the Hindu women, the women following other religions will
also be allowed to adopt. With the coming of a Uniform Civil Code, the status of Indian women
will definitely improve in all aspects of social life. One way to avoid conflict would be to give
people the option to opt out of classification based on religion. It should not be mandatory that
there should be a set of religious personal laws that govern a person’s life; instead, more laws to
ensure basic human rights are the need of the hour. If the Centre is unwilling to move forward,
individual states should take the lead. Goa is one state that has shown the way and other states
may follow suit. A secular India needs a uniform civil code.

Apart from this, care has to be taken that the uniformity that has been requested for breaks
through the shackles of gender bias too. The different rules regarding adoption for men and

13
Need for Uniform Civil Code, The Hindu on 23 rd Janurary, 2015.
women must stop. Both must have equal rights to adopt a child. Thus this issue also needs to be
addressed.

But the situation has been changed under the following judgment of 2014 which has totally
changed the conditions of adoption under Muslims, Christians and Parsis. This is a step towards
uniform civil code. This is a real good step towards creating awareness and better feeling of
oneness amongst people of same religion.

Harish v. Nair, 2014 Judgement

The court, however, turned down the plea for declaring the right of a child to be adopted and
right of a parent to adopt a fundamental right under the Constitution saying that such order
cannot be passed at this stage in view of conflicting practices and beliefs. The right to adopt a
child - till now restricted to Hindus, Buddhists and Jains - now extends to Muslims, Christians,
Jews, Parsis and all other communities.
In a landmark judgment, the Supreme Court on Wednesday ruled that any person can adopt a
child under the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of
religion he or she follows and even if the personal laws of the particular religion does not permit
it. "The JJ Act 2000 is a secular law enabling any person, irrespective of the religion he
professes, to take a child in adoption.” The ruling assumes significance as there are over 12
million orphaned children in India but on an average only 4,000 get adopted every year. "Till
now Muslims, Christians, Jews and those from the Parsis community only had the power of
guardianship in which one possess only legal right on the child till he or she turns an adult. The
biological parents have a right to intervene during that period.14

14
Supreme Court gives adoption rights to Muslims, http://indiatoday.intoday.in/story/supreme-court-gives-adoption-
rights-to-muslims/1/344463.html Assessed on 5th Febuarary, 2016.
 BENEFITS OF THIS ACT

1. This act gives JUSTICE TO THE CHILD. It helps a lot of orphan children to get a better
life which they actually deserve. It helps in regulation of national problem as well as
orphans are the duty of the state but by adopting the national duty is reduced to some
extent.

2. It helps the childless parents to have a better life as they by adopting orphans can get a
better life for themselves as well. As they can be a support for each other. And help
parents to enjoy their lives in a better way.

3. It helps in population control. A lot of population can be controlled if people start

adopting children and a lot of economic problem of state can also be checked by the same
manner.

4. By adopting children, they will be able to entail the proper education, relations, etc. The
only thing needs to be taken care that the child is getting in the right hands. This can be
ensured by checking the adoptive family background, parents’ marital relationship,
attitude for adoption, financial stability, etc.

5. The earlier restriction of allowing adoption of only a son has been removed which helps
the orphan daughters to get a home as well. It helps to remove gender biasness as girls
also get a right to get adopted.

6. The Act now allows married women to adopt any child which is also a step towards
gender biasness. It helps married women to adopt as per there will even after the death of
her husband.

7. The Supreme court judgment in Harish v. Nair in 2014

The right to adopt a child - till now restricted to Hindus, Buddhists and Jains - now
extends to Muslims, Christians, Jews, Parsis and all other communities. It is a strong
move towards creating a uniform civil code for adoption in India which is the need of the
hour and is very important and essential as to remove unnecessary restriction as it has no
sense to stop willing people to adopt children.
 Criticism
1. The first problem with Hindu Adoption and Maintenance Act, 1956 is not religion
neutral. It is not equal for all laws. Adoption is only allowed for Hindus and only for
those who come under definition of Hindus under Section 2 of Hindu Marriage Act,
1955.

2. Section 7 and 8 of Hindu Adoption law says that a male or female respectively could
adopt son or daughter but this should be son as well as daughter. This s a grammatical
mistake which makes the interpretation go wrong.

3. This Act is against the spirit of Uniform Civil Code. Same law for all should be applied
as 66 years on independence we need to have a uniform civil code for everyone to ensure
proper justice to all. If not for all laws but for adoption laws there should be uniformity as
it will help a lot of orphan children.

4. The law recognizes age difference of 21 years of age between opposite sex adoption but
that should be in case of same sex adoptive parents and adopted child as there can be
harassment of child of same sex. Hence the law should also apply to those categories of
adoption also.

5. There is no regular check on children after adoption is done once they are given away
there is no check on adoptive parents as how they are keeping the child. In many of
leading cases that can be seen.
 Conclusion

The Adoption Act is moving toward making it a religious neutral Act which is promoting
Uniform Civil Code. Adoption is a noble cause, which brings happiness to kids, who were
abandoned, or orphaned. This gives a chance for the humane side of civilization to shine through.
It’s a beneficial program where the child is treated as the natural born child and given all the
love, care and attention. At the same time, it fills the void in the parents who yearned for kids,
their laughter and mischief echoing off the walls of a home. Although a few changes could be
made to make all the laws regarding adoption a little, uniform.

Adoption should be with the consent of both the parents, both parents should equally participate;
otherwise it will be the child only who is going to suffer. The children are vulnerable and totally
dependent on the adults who are making their life decisions, and hence safeguarding their rights
and interests is of prime importance. Adoption not only fulfils the desire of the parenthood on
part of the adoptive parents but also provides a family to the child.
Other aspect could be that adoption in a sense helps in population control. All children are God
gifted. So, there should not be any difference between one’s own child and the other’s child.
Rather than conceiving more number of children, one can adopt which will ultimately serve two
purposes: population control and most important is child welfare.

‘Adopting one child won’t change the world: but for that child, the world will change.’