LAWS RELATION TO ADOPTION

- Three ways of formation of family:

a) By marriage
b) By birth
c) By adoption
- Guardians aren't biological parents. You do not necessarily inherit from them.

GUARDIAN PARENTS

Not biological parents. Biological parents.

Cannot give child for adoption. Can give child for adoption.

Cannot give their religion to the Can pass their religion to the
children. child.

You do not necessarily inherit Inheritance is the obituary

from them. thing.

The relationship is that of Relationship is that of parent-

guardian-ward. child.

More than one set of guardians Only one set of parents.

are possible.

- Guardians are of there types (de jure):

a) Natural
b) Testamentary
c) Court appointed guardians
- Guardians appointed for a specific or temporary purpose are de facto guardians.
- Legislations dealing with guardianship:
a) Guardians and Wards Act, 1890
b) Hindu Minority and Guardianship Act, 1956
- Adoption is an institutionalized process of forming a family, through which an individual
belonging by birth to one kinship group acquires new kinship ties that are socially and legally
defined as equivalent to congenital ties.
- Classification of legislations for adoption:
a) Child-centric laws – adoption for humanitarian purpose – Juvenile Justice (Care and
Protection) Act, 2015; Child Adoption and Research Agency; secular legislations
b) Parent-centric laws – adoption for selfish reasons – Hindu Adoptions and Maintenance Act,
1956; Hindu personal law

HAMA, 1956

- Before 1956, adoption a girl was a rare event.

- First 17 sections of the Act are pertaining to adoption.
- The parties in the Act:
a) Adoptive parents
b) Biological parents
c) Child being adopted
- Requirements of a valid adoption:
a) All parties have to be Hindus.
b) Adoptive parents need to be off sound mind.
c) Married person adopting needs the consent of his/her spouse. The consent can be done away
with if:
i) If the spouse is of unsound mind and declared so by a court of competent
jurisdiction.
ii) If the husband or wife had ceased to be Hindu.
d) In case a person adopts a child and subsequently marries someone then the spouse will be a
step parent of the child.
e) In case of an opposite gender adoption, then the age difference between the adoptive parents
and the child has to be 21 years. It can only be excluded if the customary practices of the
parties permit an adoption foregoing the age difference.
f) A person cannot adopt a son if he has a son, son’s son or son’s son’s son (whether biological
or adoptive).
 g) A person cannot adopt a daughter if he or she has a daughter or a son’s daughter (wherever
by birth or by adoption).
h) A child being adopted, unless the custom otherwise provides, had to be under the age of 15
years and should not have been married before adoption.
i) The child should not have been adopted ever before.

EFFECT OF ADOPTION

- Covered under Section 11 of HAMA.

- There are three effects of adoption:
a) The prohibited degrees of marriage still continue.
b) New prohibited degrees will emerge in the new family.
c) Property which has been vested in the child before adoption in the old family; he cannot be
divested of that property.
d) If before adoption in the new family partition has already taken place then in that situation
after adoption the child has no right over the already partitioned property.
- Formality of adoption – absolutely essential.
Compulsory formality of give and take by parents (change of lap ceremony) witnessed by the
registrar and details to be taken down (not necessarily).

PEOPLE CAPABLE FOR GIVING A CHILD FOR ADOPTION

- Only the biological parents can give a child for adoption.

- The consent of one spouse can be excused of if he or she is of unsound mind has renounced the
world or has ceased to be a Hindu.
- In case the child has no parents such adoption can only take place under the supervision of the
guardian appointed by the Court.

CONSENT OF THE HUSBAND

BRIJENDRA SINGH v. STATE OF MP

- Based on the importance of the father's consent.

- In a village there was a concept that a virgin girl must get married.
- She married this man who abandoned her son after and she led a life of a destitute.
- She decided to adopt a child for support in her old age. She did not take her husband's consent.
- Court: Consent of the husband is a fundamental requirement for a valid adoption in case of a
married woman. There is a huge difference between a widow-like existence and an actual widow.

TEESTA CHATTORAJ v. UOI

- A couple had seeked divorce through mutual consent divorce.

- The woman got the custody of the child and remarried.
- The child weren't down to the passport office to get her name changed in the passport.
- She contended that she was given to her step father in adoption by her mother.
- Court: As per the Government Circular 2009 issues by the Ministry of External Affairs, name on
the passport cannot be changed without the consent of both the parents.
Such consent of the parents must be active and must also be put by way of a registered deed.

CONSENT OF THE WIFE

GHISALAL v. DHAPUBAI

- A man adopted a child in a village. He undertook this activity in front of the village.
- The mother sat there witnessing and did not say anything.
- During the property partition in the future the man contented that active consent by the mother
wasn’t taken.
- Court: When the wife or the woman was a mute spectator and was not actively involved in the
give and take ceremony, such cannot be considered as a valid adoption.

ADOPTION BY A SINGLE PERSON AND THE LEGAL LACUNAE

STATE BANK OF INDIA v. SHWETA SAHU

- SHWETA was adopted by a single man who was an employee in SBI.

- After his death the girl went to the bank to seek compassionate employment.
- She was denied the same under company policy.
- Court: Service rules of all the organizations must make provision for adoption done by single
employees and such adopted children most not be barred from compassionate appointments.

PROOF OF ADOPTION

RAMDAS v. GANDIYA BAI

- The boy being adopted belonged to family A, the father died and his mother married another man.
- During the partition of property if his father years later, the son claimed his share from his uncles,
they denied the same on the basis of him being maintained by his step father.
- Court: A proof of adoption is required as the simple fact that mother's husband is maintaining the
son does not make the son adoptive child of the step father. The child continues to be a member
of the deceased father's family with all the rights of the son of that family.

NILIMA MUKHERJEE v. KB GHOSH

- Court: Maintenance of joint bank accounts is no proof of adoption. It has to be established by

cogent evidence.

JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 1986

- The first version came in 2000, for adoption related provisions the latest law on point is the
provision of 2015.
- Provides for two categories of children:
a) Juveniles in conflict with law
b) Child in need of care and protection ( orphan, abandoned and surrendered children)
- For such OAS children every district must have a Child Welfare Committee for the purpose of
disposal of all cases relating to care, protection, treatment, development and rehabilitation of such
children.
- The CWC will submit quarterly reports of it's functioning to the district magistrate.
- The financial condition of the parents is of major consideration.
- Section 57 talks about the eligibility criteria of the adoptive parents. They should be:
a) Physically fit, mentally and financially sound.
b) In case of couples, consent of both is required.
c) A single man cannot adopt a girl child.
d) Other single, divorced persons may adopt, subject to the fulfillment of the criterion framed
by the authority from time to time.
e) In choice of Indian and inter-country adoption, the Indian parents will be given a priority.
- Such children on being adopted by their respective families also have to monitored by such
agencies for a period of five years.
- For the first three years a report every quarter has to be submitted, and half yearly for the two
years after that.
- It is a secular provision.
- There is no restriction with regards to the number of children that can be adopted.
- Inter-country adoption is also facilitated.
- No monetary consideration is taken for the purpose of adoption.