Topic: Legal Dimensions of Adoption

Subject: Family Law II(Wills & Succession)

Submitted To: Ms. Navedita Kochhar

Submitted By: Neha Roy (A032134722010)

Prachi Singh(A032134722024)
Course: BA LLB(G) (2022-2027)
Semester: 4th semester; 2nd year
Abstract
The concept of Child adoption is practiced from ancient times in the universe. It is social
phenomenon. The object of child adoption varies with change in civilization and change in the
view, and thoughts of humans. In Adoption, a child of one family is placed into another family.
Adoption as a development of a family has drawn overall research for three decades. India as one
of the antiquated nations in the Asian mainland has experienced real changes in the field of
adoption. From a casually embracing male child for performing last customs after the demise of
the received guardians, India has demonstrated dynamic changes. Amid the social change in the
1950s, India centered around discovering a home for relinquished, dejected, ill-conceived, and
surrendered children. These children were regulated and in the long run, set for residential and
between-nation adoption. The residential adoption in India picked up its energy just in the late
1980s. From that point forward, vital changes have occurred in the field of adoption. Adoption is
a profound legal process that significantly impacts the lives of children, prospective parents, and
society at large. In India, the legal dimensions of adoption are intricate, encompassing various
statutes, regulations, and judicial precedents aimed at safeguarding the best interests of the child
while ensuring the rights and responsibilities of all parties involved. Under Indian law, adoption
is regulated by both secular and personal laws, allowing individuals of various religious
backgrounds to adopt children by their personal beliefs. However, the legal framework ensures
that the paramount consideration in every adoption is the best interests of the child, irrespective
of the religious or cultural affiliations of the parties involved. India has witnessed a shift towards
greater transparency, efficiency, and accountability in the adoption process, with emphasis on
expedited placement of children in need of adoption and post-adoption support services for
adoptive families.

Introduction

Adoption is a legal procedure in which a child is placed with a married couple or a single woman
who agrees to raise and care for the child. Adoption is a legal way for people who are not related
by blood to establish a parent-child relationship. This two-way method has aided in the
conception of a child for childless couples. Adoption is the formal process of putting an infant
with a parent or parents other than the biological parents for the rest of their lives.

The parental duties and rights of the parents are severed when a child is adopted, and those
responsibilities and rights are transferred to the adoptive parents. It is a globally recognised
institution. Adoption is stated in almost all religions and mythologies in some way. In today's
world, the idea of adoption has evolved from providing a child to the orphaned to providing a
home to the homeless1. One of the fundamental principles underpinning adoption law in India is
the primacy of the best interests of the child. This principle, enshrined in international
conventions and domestic legislation, dictates that every decision relating to adoption must
prioritize the holistic well-being and development of the child, ensuring their right to grow up in
a loving, stable, and nurturing environment.

Moreover, India's adoption laws recognize the diversity of its population, accommodating
various personal laws and cultural practices while adhering to the overarching principles of child
welfare and protection. Whether through secular laws or personal laws based on religion or
community, the legal framework ensures that the rights of the child remain paramount,
transcending any religious or cultural considerations. As India continues to evolve and address
emerging challenges in the realm of child welfare and adoption, the legal dimensions of adoption
remain integral to ensuring that every child has the opportunity to thrive in a safe, loving, and
permanent family environment.

Historical Perspective of Indian Adoption

In India, adoption has been practiced for thousands of years. Hinduism being the major religion
practiced in India, epics and history has records of saints and royals who were adopted and who
did adopt. Ramayana and Mahabharata are the two such great epics of Hinduism which bear
references to adoption. Historically, where a lack of male offspring happened, couples went in
for embracing a male child to assign him as legal beneficiary. As per Hindu convention, children
are vital and a dead parent's spirit can just accomplish paradise on the off chance that that
individual has a child to light the memorial service fire, and salvation can be accomplished

1 https://www.legalserviceindia.com/legal/article-5534-adoption-in-hindu-law.html#:~:text=Adoption%20is%20a
%20wonderful%20option,India%20that%20deals%20with%20adoption.
(Last visited the site on: 9th March, 2024)
through children who offer tribal love.2 Adoption in ancient India was a well-established practice
documented in religious texts and epics such as the Mahabharata and the Manusmriti. These
texts provided guidelines and norms for adoption within the societal framework of the time.
Adoption was often seen as a means to ensure lineage continuity, fulfill familial duties, or
provide care for orphaned or destitute children. Hinduism, the predominant religion in India, has
historically endorsed adoption as a virtuous act. The concept of "Kritrima" or "Dattaka"
adoption, where a child is formally transferred to another family through a ritualistic process,
finds mention in ancient Hindu scriptures. Adoption was considered a way to fulfill one's duty
(dharma) and accumulate merit (punya). Adoption played a crucial role in dynastic succession
and inheritance practices among royal families and nobility. Rulers often adopted heirs to ensure
a smooth transition of power and maintain the stability of their kingdoms. The practice of
"putrika" adoption, where a daughter is adopted to inherit property and continue the family
lineage, was also prevalent in some regions. After India gained independence in 1947, efforts
were made to codify and regulate adoption laws. The Hindu Adoption and Maintenance Act,
1956, was enacted to provide legal recognition to adoption among Hindus and standardize
adoption procedures. Subsequent legislative reforms, including the Juvenile Justice (Care and
Protection of Children) Act, of 2015, further modernized adoption laws and emphasized the best
interests of the child.

Adoption Procedure In India

▪ Pre-Application Preparation: Prospective adoptive parents (PAPs) should first assess

their eligibility for adoption as per the guidelines laid down by the Central Adoption
Resource Authority (CARA) and relevant adoption regulations. They must gather
necessary documents, including proof of identity, marriage certificate (if applicable),
proof of income, medical certificates, police verification reports, and any other required
documentation.

▪ Registration with Authorized Agency: PAPs need to register with a recognized

adoption agency accredited by CARA. These agencies facilitate the adoption process and
conduct home studies and pre-adoption counseling for PAPs. Registration typically

2 https://acadpubl.eu/hub/2018-120-5/4/358.pdf (Last visited on: 9th March,2024)

 involves submitting an application form along with the required documents to the
adoption agency.

▪ Pre-Adoption Counseling and Home Study: PAPs undergo pre-adoption counseling

sessions conducted by the adoption agency to understand the legal, emotional, and
practical aspects of adoption. A home study is conducted by social workers to assess the
suitability of the PAPs and the environment of their home for the upbringing of a child.
This includes evaluating factors such as financial stability, emotional readiness, family
dynamics, and living conditions.

▪ Child Referral: After completion of the home study and counseling process, PAPs are

placed on the waiting list maintained by CARA. When a suitable match is found between
a child legally free for adoption and the PAPs, they receive a referral from CARA
through their adoption agency.

▪ Acceptance of Child Referral: Upon receiving a child referral, PAPs have the option to

accept or reject the referral based on the information provided about the child's
background, health status, and other relevant factors. If PAPs accept the referral, they
need to provide their consent in writing to proceed with the adoption.

▪ Court Petition and Legal Formalities: PAPs, along with the adoption agency, file a

petition for adoption in the appropriate court jurisdiction. The court reviews the case and
ensures compliance with all legal requirements. The court issues a decree of adoption if
satisfied with the suitability of the PAPs and the welfare of the child. This decree legally
establishes the adoptive relationship between the child and the adoptive parents.

▪ Post-Adoption Follow-Up: Following the court decree, the adoption agency conducts

post-adoption follow-up visits to monitor the child's adjustment and well-being in the
adoptive family. PAPs are required to submit regular progress reports to the adoption
agency as part of post-adoption support services.

▪ Issuance of Adoption Order and Birth Certificate: Once all legal formalities are

completed, including any required documentation and clearances, the court issues the
 final adoption order. PAPs can then obtain a new birth certificate for the adopted child
with their names listed as parents.
Adoption in Hindu Law

According to Hindu beliefs a son is indispensable as he is required to perform last rites to

prevent the parents from hell. He is also important for the welfare of the family as the wealth
descends through the male law in India treats an adopted child as equivalent to the biological
child.
Under the old Hindu Law,

● Adoption is strictly based on caste and Gotra.

● The orphan child cannot be adopted.

● Only a male could be adopted and a female child could not be adopted.

● Only the husband had the right to adopt and the wife’s consent or dissent for adoption is
not at all considered.
As time flies the above said restrictions have changed. Gender biases in the adoption process
have been minimized and almost eliminated in today’s modern society.
Under the modern Hindu Law,

● Any Hindu irrespective of gender can adopt.

● He or she should have attained age legal majority and should be of sound mind.

● He or she should satisfy the rules and regulations enumerated by the Hindu Adoption
Maintenance Act of 1956.3
Adoption Laws under The Hindu Marriage Act, 1955, and the Hindu
Adoption and Maintenance Act, 1956

Eligibility for Adoption: Any Hindu male who is of sound mind and has attained the age of 18
years, or any Hindu female who is of sound mind and has attained the age of 18 years, may adopt
a child.

3 https://blog.ipleaders.in/adoption-in-india/ (Last visited on: 9th March, 2024)

The adopter must not have a living son, son's son, or son's son's son at the time of adoption,
unless:

● The son, son's son, or son's son's son has been given in adoption.

● The son, son's son, or son's son's son has ceased to be a Hindu.

● The son, son's son, or son's son's son is disqualified to inherit his father's
property.
Modes of Adoption: HAMA provides for two modes of adoption:

● Sapinda Adoption: The adopted child must not be a sapinda (relative) of

the adoptive father or mother within five degrees of lineal descent.

● Non-Sapinda Adoption: If the adoptive father or mother has a spouse

living at the time of the adoption, the consent of such spouse is necessary
unless the spouse has completely and finally renounced the world.
Formalities of Adoption: The adoption must be made by a registered document signed by the
adoptive parent and attested by at least two witnesses. The document must specify the name and
particulars of the child being adopted, the names and particulars of the adoptive parent, and any
other terms and conditions agreed upon by the parties.
Revocation of Adoption: The adoptive parent has the right to revoke the adoption if the
adoption was made with the consent of the spouse, and the spouse has renounced the world or
ceased to be a Hindu. The adoptive parent may also revoke the adoption if the adopted child
renounces his or her Hindu religion or commits an act that disentitles the adopted child to inherit
the property of the adoptive parent.
Rights of Adopted Child: An adopted child shall be deemed to be the child of the adoptive
parent for all purposes with effect from the date of adoption. The adopted child shall have the
same rights, privileges, and obligations as if he or she were the biological child of the adoptive
parent.

Juvenile Justice Act

The nodal agency for the adoption of a child is the Central Adoption Resource Authority
(CARA) a statutory body under the ministry of women and child development laid down the
guidelines to be followed for adoption. These guidelines are included in the detailed provisions
of the Juvenile Justice Act. Adoption agencies, child care institutions and juvenile homes should
be registered with the nodal agency as per the Juvenile Justice Act. The Juvenile Justice Act,
2015 supersedes all previous laws and amendments for adoption. Juvenile Justice Act mandates
that adoption of orphan surrendered or abandoned child should be done through authorised
agencies and as per the guidelines of CARA. Any adoption violation of this is considered illegal.
The Hindu adoption and maintenance act is the primary adoption law before the enactment of the
Juvenile Justice Act, 2000. It is not suitable for adoptions and not supported by the Hague
Convention on adoptions. It also does not provide for the assessment of the mental and physical
ability of potential adoptive parents and lacks provisions for post-adoptive follow up by nodal or
registered agencies. This generally resulted in abuses on adopted children or us, ing them for
illegal purposes. As other religions such as Christians, Muslims or Parsis don’t have a personal
law governing adoption they can only adopt under the Guardian and Ward Act. This lacks the
legal provision for an inheritance to the adopted child as it is considered as foster care, not full
adoption.4

Conclusion

The legal aspects of adoption in India are shaped by a combination of historical, cultural, and
legal factors that aim to protect the best interests of the child while respecting the needs and
rights of prospective adoptive parents. Throughout India's history, adoption practices have
evolved from traditional customs and religious beliefs to formal legal frameworks that prioritize
fairness, transparency, and child welfare. The adoption process is governed by statutes such as
the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Hindu Adoption and
Maintenance Act, 1956, which emphasize the importance of the best interests of the child.
Prospective adoptive parents are carefully screened, counseled and assessed to ensure that they
are able to offer a loving and nurturing environment for the adopted child. India's legal
framework recognizes various types of adoption, including domestic, inter-country, and relative
adoption, to cater to the diverse needs and circumstances of children and families. Inter-country
4 https://blog.ipleaders.in/adoption-in-india/ (Last Visited on: 9th March,2024)
adoption, which is governed by international conventions such as the Hague Convention on
Protection of Children, places great importance on adhering to internationally recognized
standards of child welfare and protection. Recent legal reforms have aimed to increase
transparency, efficiency, and accountability in the adoption process, streamlining procedures and
providing stronger post-adoption support services for adoptive families. The establishment of
centralized adoption authorities, digitization of adoption records, and the provision of pre and
post-adoption counseling services are notable advancements in this regard. Adoption law in India
is committed to upholding the dignity, rights, and well-being of every child, ensuring that
adoption remains a compassionate and legally sound means of providing loving homes to
children in need. Continued collaboration between policymakers, adoption agencies, civil
society, and the judiciary can further strengthen India's legal framework and practices to create a
more inclusive and child-friendly adoption system.