Adoption deed

• Covered under Hindu Adoption and

Maintenance Act of 1956
• Guardians and Wards Act 1890
• Juvenile Justice Care and Protection Act
2000 (amended in 2006 and 2015)
 Hindu Adoption and
Maintenance Act, 1956
• Applicable for Hindus, Buddhists, Jains and Sikhs
• Not applicable for Muslims, Parsis, Jews
• Although adoption is the best resort for a child in
absence of his natural parents, personal law of Muslims,
Christians, Parsis and Jews does not recognize
complete adoption. Thus, individuals belonging to these
religions do not have an enabling law to adopt a child.
• They can take the child in 'guardianship' under the
provisions of the Guardian and Wards Act, 1890
• The amendment to the JJ Act in 2000 has made
adoption religion neutral. Further details have been
added through amendment in 2015.
 Definition of Adoption
• Transplantation of child from the family of
his natural parents to another family by
mutual consent of adopting parents and
natural parents

• Most specific rules given in HAMA

• Applicability wide based on the concept of
“Lex specialis derogat legi generali”
 Who can adopt?
• Adoption by males – Any Hindu male who is of
sound mind and not a minor can adopt
• If he has a wife then her consent is essential
unless –
• 1. the wife has finally and completely renounced
the world
• 2. has ceased to be hindu
• 3. Has been declared to be of unsound mind by
a court of competent jurisdiction
• If a person has more than one wife living, the
consent of all of them is required
 Who can adopt?
• Adoption by females- any hindu female (Section 8
amended in 2010)
• Who is of sound mind
• Who is not a minor
• Who is not married or if married, whose marriage has been
dissolved
• if she has a husband living, she shall not adopt a son or
daughter except with the consent of her husband (2010
inclusion)
• Whose husband is dead or has completely renounced the
world
• Husband has ceased to be hindu
• Husband had been declared of unsound mind
 Who can give in adoption?
• No person except father or mother or guardian
has the capacity to give the child in adoption
• The father, if alive, shall alone have the right to
give in adoption but he can do so only with the
consent of mother if she is alive unless
• 1. the wife has finally and completely renounced
the world
• 2. has ceased to be hindu
• 3. Has been declared to be of unsound mind by
a court of competent jurisdiction
 Who can give in adoption?
• The mother may give in adoption if the
father
• 1. is dead
• 2. has finally and completely renounced
the world
• 2. has ceased to be hindu
• 3. Has been declared to be of unsound
mind by a court of competent jurisdiction
 Who can give in adoption?
(2010 amendment)
• The father or the mother, if alive, shall have
equal right to give a son or daughter in adoption:
• Provided that such right shall not be exercised
by either of them save with the consent of the
other unless one of them 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;
 Who can give in adoption?
• Where both father and mother
• 1. are dead
• 2. have finally and completely renounced the world
• 3.have ceased to be hindu
• 4.Have been declared to be of unsound mind by a court
of competent jurisdiction
• 5. have abandoned the child
• 6. Parentage is unknown
• In above mentioned cases the guardian may give the
child for adoption with previous permission of the court.
The guardian is appointed by a court of compent
jurisdiction
 Who may be adopted?
• 1. only hindu
• 2. Not already adopted
• 3. not married unless there is a custom
which permits married persons being
taken in adoption
• 4. Not completed the age of 15
 Essentials of a valid adoption
• If adopting a son, the adoptive parents must not
have a son, son’s son or son’s son’s son
• If adopting a daughter, the adoptive parents must
not have a daughter or son’s daughter living at the
time of adoption
• (Gender related clauses of HAMA diluted by
amendments in JJ Act)
• If a male adopts a female, the adoptive father
should be at least 21 years older than the child to
be adopted
• If a female adopts a male, the adoptive mother
should be at least 21 years older than the child to
be adopted
 Essentials of a valid adoption
• The same child may not be adopted
simultaneously by 2 or more persons
• There must be actual give and take
between parents and guardians or
between both sets of parents. The
ceremony is called datta homam but is not
a pre-requisite for a valid adoption.
 Effects of adoption
• The adopted child becomes a part of the adoptive family
for all purposes with effect from the date of adoption and
all ties with family of birth are severed except-
• 1. the child cannot marry a person whom he or she could
not have married, if he or she had continued in the family
of birth
• 2. any property vested in the child before adoption shall
continue to vest along with the obligations attached to
ownership including obligation to maintain relatives
• 3. the adopted child shall not divest any person of any
estate which vested in him or her before adoption
 JJ Act
• JJA, 2000 has managed to legitimize uniform adoption, when previous
attempts to pass the Adoption of Children Bill had failed.
• Section 41 of the Act deals with carrying out investigations and giving
children up for adoption in accordance with the guidelines issued by the
State governments.
• The Child Welfare Committee is to declare a child free for adoption in the
case of abandoned children. Under this Act, a child may be given for
adoption irrespective of the number of living biological sons or daughters.
• This is contrary to the provisions contained in the Hindu Adoption and
Maintenance Act (HAMA). The HAMA permits a Hindu to adopt a child
whose gender differs from the gender of the biological child.
• The provisions with regard to adoption under the new Act enable a Muslim,
Parsi or Christian to take a child in adoption. A Hindu can adopt a child
whose gender is same as that of the biological child.
• Couples from all religions can gain the status of
adoptive parents under the Juvenile Justice (JJ)
Act (Care and Protection of Children), 2000.
• An amendment brought in JJ Act in 2006
incorporated provisions regarding adoption has
allowed people following Christianity and Islam
also to get the status which was denied to them
till recently. They were only given the status of
guardianship till the child attained 18 years.
Section 41 Sub section 6 of Juvenile Justice
Act amended in 2006
• The court may allow a child to be given in
adoption-
• a. to a person irrespective of marital status
or
• b. to parents to adopt a child of the same
sex irrespective of the number of biological
sons or daughters or
• c. childless couples
 Juvenile Justice (Care and Protection of Children)
Act, 2015
• Who can be adopted?

• The following children can be adopted as per amended JJ Act

• The children given below can be adopted, only if they are declared legally free for
adoption by the Child Welfare Committee:
• Any orphan who is a child without biological parents, adoptive parents or
a legal guardian
• Abandoned child who is a child deserted by his or her biological parents
• Surrendered child who is a child who has been given up by the parents to
the adoption authorities
• Child of a relative.
• Child of a spouse who is surrendered by the biological parent, to be adopted by the
step-parent.
 JJ Act 2015
• Who can adopt?
• Health
• Must be physically fit i.e. you have no life threatening medical condition
• Must be financially sound, mentally and emotionally stable, and highly motivated to adopt a child for
providing a good upbringing.
• Marital Status
• Single Adoptive Parent: It does not matter if you are married or if you already have children i.e. a
single/divorced/married person can adopt a child, even if he/she already has a child. If you want to adopt a
girl child, you must be a woman, as a single female can adopt both male and female children. However, as
a single father, you cannot adopt a girl child.
• Married Adoptive Parent: In case of a married couple, both spouses must consent to the adoption. In case
of a married couple, a married couple must have had at least two years of stable marital relationship.
• Existing Children
• Couples with three or more children shall not be considered for adoption except in case of children with
special needs, children who are hard to place (who are not getting any referrals from a long time), and
relative adoption and adoption by step-parent.
• Age
• The minimum age difference between the child and either of the prospective adoptive parents must be at
least 25 years.
• The combined age of prospective adoptive parents shall be counted for deciding their eligibility to apply
for adoption of children from different age groups, except in cases of relative adoption and adoption by
step-parent.
• Types of Adoption under JJ Act
• These are the following categories of adoption procedures:
• Adoption by resident Indians (residing in India)
• Adoption of a child from a foreign country by Indian citizens
• Adoption by Overseas Citizen of India (OCI) or a foreigner living in India
• Adoption by OCI or Non-Resident Indian (NRI) or a foreigner living abroad
• Adoption by step-parent
• Adoption by relative
• In-country adoption i.e. adoption within India
• Inter-country adoption
 Procedure for Inter-Country
Adoption
• The Supreme Court of India has laid down that every application
from a foreigner/NRI desiring to adopt a child must be sponsored by
a social or child welfare agency recognized or licensed by the
Government or a Department of the Foreign Govt. to sponsor such
cases in the country in which the foreigner is resident. The foreign
agency should also be an agency ‘authorized’ by CARA (Central
Adoption Resource Agency), Ministry of Social Justice &
Empowerment, Govt. of India. No application by a foreigner/NRI for
taking a child in adoption should be entertained directly by any
social or child welfare agency in India.
• In CARA guidelines single males are prohibited from adopting a girl
child.
 Criteria for Foreign Prospective
Adoptive Parents
• Married couple with 5 years of a stable relationship, age, financial and
health status with reasonable income to support the child should be evident
in the Home Study Report.
• Prospective adoptive parents having composite age of 90 years or less can
adopt infants and young children. These provisions may be suitably relaxed
in exceptional cases, such as older children and children with special needs,
for reasons clearly stated in the Home Study Report. However, in no case
should the age of any one of the prospective adoptive parents exceed 55
years.
• Single persons (never married, widowed, divorced) up to 45 years can also
adopt.
• Age difference of the single adoptive parent and child should be 21 years or
more.
• A FPAP in no case should be less than 30 years and more than 55 years.
• A second adoption from India will be considered only when the legal
adoption of the first child is completed.
• Same sex couples are not eligible to adopt.
 Attestation
• Deed must be executed by giver as well
as receiver and must be clearly attested
as bond
 Registration
• Section 16 of Hindu Adoption and
Maintenance Act 1956 requires
registration of the adoption deed
• Stamp duty is also chargeable on adoption
deeds under Article 3 Schedule1 of Indian
Stamp Act
• Earlier, only the Hindu Adoption and
Maintenance Act gave all the rights of a
biological child to the adopted child and
the status of adoptive parents. A number
of couples in other religions are now going
in for correcting the status of guardianship
to adoptive parents under the provisions in
the amendment brought about in JJ Act
2006.
Flaws and loopholes of the Juvenile Justice
(Care and Protection of Children) Act
• Existence of a prior law relating to
adoption for Hindus,
• The non-existence of adoption laws for
non-Hindu communities,
• The prohibition of adoption in the religious
laws of some communities, for example
Muslims
• It is a well-settled principle of
Jurisprudence that when there is a general
and specific law on the same aspect of
law, the latter has precedence over the
former. Consequently, the Juvenile Justice
Act is rendered fruitless and ineffective by
the very presence of Hindu Adoptions and
Maintenance Act, 1956, in case of
Hindus.
• The Muslims challenge the constitutionality of
the provision (section 41 of the Juvenile Justice
(Care and Protection of Children) Act, 2000) per
se, since the concept of adoption runs contrary
to the injunctions of the Holy Koran.
• https://www.indiatoday.in/india/story/supreme-co
urt-gives-adoption-rights-to-muslims-181849-201
4-02-20