REPORT

Introduction:
In this report, I’ll be portraying my views upon Inter-country Direct Adoptions or Private
Adoptions, by interpreting the laws the way they should have been interpreted through
mentioning and commenting on various judgments related to inter-country direct adoptions
namely taking the case of Pkh vs. CARA, 18 July, 2016. I’ll also try to highlight the current
condition and dilemma that both children and parents facing either due to the poor interpretation
of laws or because of the lack of flexibility within the legal procedure.

Laws regarding adoption in India:

In order for someone to have a valid adoption in India, there are certain laws and provisions
provided in certain statutes. Although there is no general law of adoption, yet it is permitted by a
statute amongst Hindus and by custom amongst a few numerically insignificant categories of
persons.Since adoption is legal affiliation of a child, it forms the subject matter of personal
law.Muslims, Christians and Parsis have no adoption laws and have to approach court under the
Guardians and Wards Act, 1890. Muslims, Christians and Parsis can take a child under the said
Act only under foster care. Once a child under foster care becomes major, he is free to break
away all his connections. Besides, such a child does not have legal right of inheritance.
Foreigners, who want to adopt Indian children have to approach the court under the aforesaid
Act. In case the court has given permission for the child to be taken out of the country, adoption
according to a foreign law, that is, the law applicable to guardian takes place outside the country.
I would also be giving a brief analysis of provisions relating ICA.

Hindu Adoptions and Maintenance Act:

It is the only statute in force governing adoption of children and its ambit is confined to Hindus
in India. There is a legal vacuum as regards adoption by or of other communities in India. Indian
citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a child. The
adoption is under the Hindu Adoption and Maintenance Act of 1956. This act is the only statute
in force governing adoption of children and its ambit is confined to Hindus. Under this act a
married man, a widow, a widower, single women, or a divorced or deceased women has the
capacity to adopt, if they are Hindus.

Requirements:

 Legally the husband adopts with the consent of his wife and vice versa;
 A single Married couples or single adults can adopt;
 man or woman can adopt;
  If a biological child already exists in the family, a child of the opposite sex has to be
adopted;
 Children adopted under this Act get the same legal rights as a biological child might;
  Children under the age of 15 years can be adopted;
 A single man adopting a girl should be at least 21 years older than the child;
 A single woman adopting a boy should be at least 21 years older than the child; and
 Adoption under this act is irrevocable.

Guardianship and Wards Act:

It is indirectly invoked by other communities to become guardians of the child duringminority.

The statute does not deal with adoption as such but mainly with guardian ship,and is to be read
along with the personal laws. It may be indirectly invoked, in certain cases to confer legal
guardianship of children during minority. The Guardians and Wards Act, deals only with the
guardians of the person and property of the minor.

Requirements:

 Anyone under the age of 18 years can be a ward;

 The guardianship can be revoked by the courts or by the guardian;
 A will is required for any property/goods to be bequeathed to the child;
  This will can be legally contested by ‘blood’ relatives;
 Both spouses can legally be guardians (versus HAMA where the man adopts with the
consent of his wife); and
 Single people can adopt without any age difference restrictions.

Central Adoption Resource Authority( CARA):

Central adoption resource authority (CARA) is the nodal agency to regulate adoption for in-
country and intra-country. It is a statutory body of the Government of India working under the
Ministry of Women & Child Development. It deals with adoption of children through special
recognised agencies.

Legal procedure

 The specialized agency shall then file an adoption petition in the court having jurisdiction
within 7 days of the acceptance.
  The Court shall then hold the in-camera proceedings and dispose the case within 2
months.
 The court provides for a certified copy of adoption and the same shall be forwarded by
the adoption agency within 10 days.
 After receipt of the order, the prospective adoptive parent becomes the legal parents of
the child.
 Constant follow up is required by the specialized adoption agency.

The Juvenile Justice (Care and Protection of Children) Act, 2015:

The JJ Act, 2015 provides for strengthened provisions for both children in need of care
and protection and children in conflict with law. Some of the key provisions include: change in
nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict with law’, across the Act to remove
the negative connotation associated with the word “juvenile”;  inclusion of several new
definitions such as orphaned, abandoned and surrendered children; and petty, serious and
heinous offences committed by children;  clarity in powers, function and responsibilities of
Juvenile Justice Several rehabilitation and social reintegration measures have been provided for
children in conflict with law and those in need of care and protection. Under the institutional
care, children are provided with various services including education, health, nutrition, de-
addiction, treatment of diseases, vocational training, skill development, life skill education,
counselling, etc to help them assume a constructive role in the society. The variety of non-
institutional options include: sponsorship and foster care including group foster care for placing
children in a family environment which is other than child’s biological family, which is to be
selected, qualified, approved and supervised for providing care to children.

 
Several new offences committed against children, which are so far not adequately
covered under any other law, are included in the Act. These include: sale and procurement of
children for any purpose including illegal adoption, corporal punishment in child care
institutions, use of child by militant groups, offences against disabled children and, kidnapping
and abduction of children.
 
Board (JJB) and Child Welfare Committee (CWC); clear timelines for inquiry by
Juvenile Justice Board (JJB); special provisions for heinous offences committed by children
above the age of sixteen year; separate new chapter on Adoption to streamline adoption of
orphan, abandoned and surrendered children; inclusion of new offences committed against
children; and mandatory registration of Child Care Institutions.
. Section 2 (a) of the Act defines adoption as “the process through which the adopted child is
permanently separated from his biological parents and becomes the legitimate child of his
adoptive parents with all rights, privileges and responsibilities that are attached to the
relationship.”
While the Act covers all of India, it is only possible to adopt under this Act in areas where the JJ
Boards (provided under the Act) have been constituted. This is an ongoing process, with a
majority of states issuing notifications constituting these boards.

Present scenario of adoption laws in India:

Practice of adoption has been followed in India for many decades but for the law of
adoption came in 19th century. There are many religions in India but there’s no particular
adoption law governing all the religions. Till now there’s only one personal law for governing
adoption in India, that is Hindu Adoption and Maintenance Act, 1956. Today, Religions like
Christianity, Muslims, Jews, and Parsis don’t have their own personal law governing adoption
thus, denying them the option of adopting a child they can only become a guardian of the child
under Guardianship and Wards Act, 1890. Government has surely taken steps to in order to make
uniform adoption laws, but it didn’t go the way as it was expected. Debates and arguments arose
in the country when the cases of direct inter-country adoption started showing up in the
limelight, demanding a clear interpretation of the law through which these private adoptions
were governed under, as the agency CARA who was authorized of such adoptions in the country
didn’t recognized direct adoptions as per their guidelines of Hague Convention, by not granting
the No Objection Certificate (NOC) to the adoptive parents like in the case of Pkh vs. CARA,
Mr. Frank M. Costanzo vs. Regional passport officer, and Master Divyansh Arora vs. Union of
India, were some of the most signified cases in which CARA denied the legitimacy of direct
adoption or an adoption executed by the biological parents itself.