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Role of Judiciary and Procedure of The Court For Adoption: o o o o o o o o
Role of Judiciary and Procedure of The Court For Adoption: o o o o o o o o
Role of Judiciary and Procedure of The Court For Adoption: o o o o o o o o
Introduction
Being diverse in terms of religion, India has its own set of practices which it
follows. Indian legal system comprises various customs along with legislation.
Children are often considered to be the future of the country and They have the
right to be taken care of or being pampered but on the other hand, there are so
many children being abandoned per year in India. Often those children are a
victim of human trafficking and sexual assaults. Some of them are taken to
adoption agencies where they are given a second chance to live. The concept of
adoption can be traced back to the early 17th century.
What is adoption?
Adoption, therefore, is a legal process through which a married couple or a
single female or male who agrees to raise the child as their own and undertakes
all the responsibility attached to that child, is provided with a child. Adoption
can also be termed as a permanent legal way of transfer of a child from the
biological parent to another parent who is ready to accept all the responsibilities
of the child. It can be said that through the process of adoption one can provide
a child to childless and home to homeless.
Objectives of adoption
To secure the family property.
To grow family name and fame.
To provide a home to the homeless child.
To provide a child to the childless
To protect the old age of the parent by the adopted child.
To help in the last rites and rituals of parents
1. A child who is legally free for adoption can be adopted by any Indian
citizen.
2. The adopted child gets the same right that the biological child gets.
3. There shall be no discrimination on the basis of the religion of the
adoptive parents.
4. Single people can adopt a child.
5. The adoption is irrevocable.
This act covers the areas where the Juvenile justice board have been
constituted although it covers almost all of India.
Permission of the court to adopt under this Act is required when: (Section 9(4))
Hindu Law
Only in Hindu law there used to be a belief and custom that only male children
were to be adopted and female children could not be adopted. Restrictions were
imposed based on caste and gotra. Hindu law is also the only law that treats the
adopted child just the same way a natural-born child is treated.
Under the old Hindu law, only the male has the right to adopt without the
consent from his wife. As time moved forward these restrictions changed and
the gender discrimination in the society is decreasing day by day. According to
modern Hindu law, the right to adopt the child is being exercised by both male
and female provided the person has attained the age of majority and is of sound
mind. Such amendments, rules, regulations have been enumerated in Hindu
Adoption and Maintenance Act 1956.
Muslim Law
As it has been observed that under Muslim law a father always enjoys a
dominant position. Both two schools of Muslim law that is Shia and Sunni have
agreed that the father is the sole guardian and mother is not recognised as a
natural guardian even after the death of the father. Muslim law since it differs
from Hindu law, adoption practice hereunder are different. Islamic term for
adoption is kafala. The strict rules are set under the Muslim law to preserve the
integrity of the family. Though adoption is not prohibited but what is unlawful is
to attribute one’s adopted child to oneself as if there is a biological relationship.
The rules under Muslim law are:-
The adopted child keeps the surname of his or her biological family.
The inheritance of an adopted child is from his or her biological parents
and not adoptive parents.
If the biological parents of a child have given some property to him or her,
adoptive parents are to take care and not interfere in that property.
It is impossible for a child to be feeling orphaned even after being an adopted in
the Islam family because is from the family network is vast and very strong and
there are enough number of family members to take care of him or
her. (Yaqoob Laway v. Gulla 2005).
No other person can be appointed for that purpose. The welfare of the child is
almost while appointing a guardian for the same. In Christians, foster children
are not treated as children according to law and on the death of the foster
parents the estate is distributed among the legal heir. Section 41 of the Juvenile
Justice Act 2006 along with the guidelines of state governments can permit the
adoption of children by Christians. (Shabnam Hashmi vs Union of India AIR
2014) this case enabled non-Hindus to adopt a child. (Philips Alfred Marvin v. VJ
Gonsalves AIR 1999)– allowed adoption in Christians.
Case laws
Pkh vs Central Adoption – The present case is of the practitioner and her
husband. They both reside in Canada for the last 20 years. The petitioner
wanted to adopt a girl child in regard to which the relatives of the
petitioner got in touch with family relatives PK. The child was adopted
from PK. The question with the case was that the child adopted was in
conflict with law. It was therefore held in the case that the respondent of
the case was to grant a NOC to the petitioner to take the adopted child to
Canada within a period of two weeks.
Balu Sakharam Pawar vs Lahoo Sambhaji Tetgure– It was held in this
case that while dealing with the law of adoption two things are most
important to be taken care of, the first is that the right to adopt and the
second is the effect of valid adoption on the property.
Lakshmi Kant Pandey vs UOI – In this case, the court observed that in the
absence of legal regulation of intercountry adoption in India major harms
to the Indian children can occur for example abuse of profiteering for
human trafficking.
Bhagwan Singh and Ors vs Bhagwan Singh – In this case, the court
observed that the question whether a widow can adopt a son to her
husband without the expressed authority of him needs proper attention
from the legal authorities in different parts of India.
Conclusion
Right to adoption though not a fundamental right in India, still there is a serious
need to make one since it would provide a child to the childless and home to the
homeless. Home for children will help the child grow into a healthy human being
mentally, physically and psychologically. However, the court must do good for
the children and the parents by laying down strict guidelines, rules and
regulations in order to ensure there is no misuse of such rights.