Tuesday, 21 July 2015

ADOPTION LAW IN INDIA

1.                  Who can adopt a child in India?
Adoption according to Indian law is a personal act and hence is governed by the various personal laws of the different religions. Adoption is not permitted in according to the personal law of Muslims, Christians, Parsis and Jews in India. Hence they usually opt for guardianship of a child through the Guardians and Wards Act, 1890.
Indian citizens can adopt in India under three major legislations: the Hindu Adoption and Maintenance Act of 1956, the Guardians and Wards Act of 1890 and the Juvenile Justice (Care and Protection) Act of 2000, amended in 2006.

The Hindu Adoption and Maintenance Act, 1956 (HAMA)
This Act covers Hindus, Buddhists, Jains or Sikhs. Some relevant parts of the Act are:
·                Married couples or single adults can adopt;
·                Legally the man adopts with the consent of his wife;
·                A single 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.

The Guardians and Wards Act, 1890 (GWA)
Before the Juvenile Justice (Care and Protection) Act of 2000, this was the only legislation that allowed non-Hindus to adopt. However, this act ended up being the first secular law that allowed for a child to be adopted in India. The salient points of this Act are:
The parent adopting is a ‘guardian’ and the child is a ‘ward’, meaning that the same rights of a biological child aren’t inherent;
·                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.

The Juvenile Justice (Care and Protection) Act of 2000, amended in 2006 (JJ Act)
The JJ Act is meant mainly for the care and rehabilitation of children in conflict with the law. There was the need for a law that would allow children the same rights, whether they were adopted or biological. There was also the need for a law that delinked adoption from the religion of the adoptive parent(s). The JJ Act filled this space and a tiny section was added on for adoption.
The Amendment Act of 2006 has since expanded the provisions. The main strengths of this Act are:
a.                    a.           Any Indian citizen can adopt a child who is legally free for adoption;
b.      The adoptee gets the same rights that a biological child might;
c.       The religion of the adoptive parent(s) is not relevant;
d.      Single people can adopt;
e.      The adoption is irrevocable;
f.        Some time limits have been set to ensure that children are considered legally free for adoption earlier; and
g.      The thrust is on the best interest of the child.

Section 2 (aa) 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.
2.                  
            Can single parents (man and woman) do that?
Yes Single Parents (man and woman) can adopt a child as per below given criteria’s:-

A single parent can also adopt. However, a single or unmarried male person is not permitted to adopt a girl child. The law is discriminatory against men in this regard. While the possibility of abuse of a girl child by a male may seem something to be protected against, there should be no general rule that single men cannot make good fathers for adopted girls.
In case, a single Prospective Adoptive Parent (PAP) desires to adopt, he or she should not be less than 30 years of age and shall not be above the age of 50 years. The maximum age shall be 45 years to adopt children in the age group of 0-3 years and 50 years for adopting children above 3 years.
The single parent should have an additional family support.

3.                  Are there any medical tests that the adopting parents have to go through? 

Adoptive parents do have to submit a medical report before they officially qualify as parents. The adoption agency will give detailed list of the medical tests that both parents must undergo. These are general tests to ascertain that the PAP have no major complications. They may have to undergo the following tests:

Laboratory tests
  • Serology
  • Hemoglobin
  • Blood smear
  • Urinalysis - specific gravity
  • Urinalysis - sugar
  • Urinalysis - albumin
  • PAP
  • Pulse
  • Weight
  • Height
  • Blood pressure
  • Vision
  • Ears
  • Teeth & gums
  • Nose & throat
  • Lungs
  • Breasts
  • Heart
  • Pelvis
  • Abdomen and
  • Nervous system
  • Illnesses you have had previously
  • Operations you have undergone
  • Hospitalization, if any, with a brief background
  • Psychiatric treatment in the past, if any, citing the reason
  • Accidents suffered
  • Significant family history (diabetes, heart disease, hereditary or congenital defects)
  • SEC 2(K) :- Child means a person who has not completed 18 years of age.
  • Adoptive parents having composite age of 90 years and less and where neither parent has crossed 45 years can be considered for adoption of Indian children. In no case should the age of the prospective adoptive parent(s) exceed 55 years
  • For children with medical problems and special needs, the age limit of adoptive parent(s) may be relaxed by concerned State Government.
 Hague Convention
For the purpose of implementation of the Convention, in our country, Ministry of Social Justice and Empowerment is functioning as the Administrative Ministry and Central Adoption Resource Agency (CARA) as the Central Authority.
The following analysis is based on the guidelines given by Central Adoption Resource Agency.
Central Adoption Resource Agency (CARA)

Central Adoption Resource Agency (CARA)
Yes, an adoptive parent is allowed to ask for a specific child, including that of a specific gender, age-group, height, etc, and can even choose from among a group of children, if there are many children. However, the final decision rests with the court. An unmarried male, for example, is not allowed to adopt a girl child.
"Court shall direct authorities to recognize minor as child of parents who has adopted him and confer all benefits that available to child as per statute."
Each and every norm of the adoption process spelt out under the Guidelines of 2006, as well as the Guidelines of 2011, has been adhered to, it is found that the apprehension raised by the intervener, though may have been founded on good reasons, have proved themselves wholly unsubstantiated in the present case. If the foreign adoptive parent is otherwise suitable and willing, and consent of the child had also been taken (as in the present case) and the expert bodies engaged in the field are of the view that in the present case the adoption process would end in a successful blending of the child in the family of the appellant in U.S.A., it is not seen as to how the appellant could be understood to be disqualified or disentitled to the relief (s) sought by her in the proceedings in question. Therefore, having regard to the totality of the facts of the case, the proposed adoption would be beneficial to the child apart from being consistent with the legal entitlement of the foreign adoptive parent.
Complete physical examination

You may also have to submit a brief medical history which will have information about:

Health documents and reports must be supported by a fitness certificate certified by a qualified medical practitioner declaring both adoptive parents as fit and fine, with no genetic disorders or other complications - past or otherwise.

4.                  What is the age criteria for adoption? 
Hindu Maintenance and Adoption Act, 1956
·      SEC 11(iii) :-
 Where the adoption is by Hindu male, and the child to be adopted is a female, adoptive father should be at least 21 yrs older than the female child.
·       SEC 11(iv) :-
Where the adoption is by Hindu female, and the child to be adopted is a male, adoptive mother should be at least 21 yrs older than the male child.

JUVINILE JUSTICE CARE & PROTECTION OF CHILDREN ACT, 2000
GUIDELINES BY CENTRAL ADOPTION RESOURCE AGENCY 2004.


Criteria for Prospective Single Adoptive Parents
·         Age of the adoptive single parent should be above 30 years and below 45 years.
·         The age difference between the adoptive single parent and adoptive child should be 21 years.

5.                  How are the rules different for an NRI?
India has signed the Hague Convention on Inter-Country adoption, 1993 on 9 January, 2003 and ratified the same on 6 June, 2003, with a view to strengthening international cooperation and protection of children placed in inter-country adoption. The Convention recognizes that for full and harmonious development of his or her personality, the child should grow up in a family environment, in an atmosphere of happiness, love and understanding. The Convention also states that the objectives of inter-country adoption should be in the best interests of the child, with respect to their fundamental rights and to prevent abduction, sale and traffic in children.


In pursuance of the landmark judgment of the Supreme Court of India in the Laxmi Kant Pandey v/s Union of India case, (1991) 4 SCC 33, the Central Adoption Resource Agency was established by the Ministry and subsequently the Revised Guidelines for the Adoption of India children were issued in 1995 to provide a framework of rules regulating and monitoring inter-country adoptions. These Guidelines are now applicable all over the country and they provide a uniform mechanism for processing cases of inter-country adoption.

6.                  Are the adopting parents allowed to choose a child?

Guidelines Governing the Adoption of Children, 2011 issued by Ministry of Women and Child Development, Government of India.
Chapter III – Guideline number 21 :-
·         The Specialised Adoption Agency shall constitute an ‘Adoption Committee’ consisting its Secretary or Managing Trustee, a senior professional social worker, Visiting Medical Officer and one other functionary of the Agency for assignment of the child.
·         After matching the child, the Specialised Adoption Agency shall advise Prospective Adoptive Parent PAP(s) to see the child physically before they give their acceptance
·         If the PAP(s) decide to adopt the proposed child, they shall give their formal acceptance for the adoption by signing on the Child Study Report and Medical Examination Report of the child within a period of ten days.
·         In case the referred child is not acceptable to the PAP(s), a maximum of two other children shall be proposed to them at a given time.
·         In case a matching does not take place, the PAPs shall be eligible for reconsideration only after a lapse of three months from the date on which the last child was shown to them.

7.                  Are there any agencies which aid in this process?

All the adoption agencies must be recognized by CARA and/or the State Government.

·                    Central Adoption Resource Authority “CARA”
The purpose of CARA is to ensure that every orphan, destitute and surrendered child has a loving and caring family. It currently comes under the purview of the Ministry of Women and Child Development. CARA was established in 1990 under the Ministry of Welfare. Ministry of Social Justice & Empowerment conferred onto CARA the responsibility of upholding the Hague Convention on Protection of Children & Cooperation in respect of Inter-country Adoption of 1993. It became an autonomous body in 1999 by registering it under the Society under the Societies Registration Act, 1860. After the passing of the Juvenile Justice Act 2000 and its amendment in 2006, CARA was transferred to the MWCD.
CARA has set out both the In-country and Inter-country guidelines and procedures for adoption.
Other agencies concerned with the process of adoption both in India and internationally are as follows:
·         Recognised Indian Placement Agencies (RIPAs)
·         Enlisted Foreign Adoption Agencies
·         Adoption Coordinating Agencies (ACAs)
·         Shishu Grehs
·         Licensed Adoption Placement Agencies (LAPAs)
·         Indian Federation of Adoptive Families Associations (IFAFA)

8.                  case studies?

1)                 Judgement stating that people in India can adopt as per the laws applicable irrespective of the religion.
In Shabnam Hashmi Vs Union of India & Ors (19 February, 2014)Irrespective of religion any person can adopt under Juvenile Justice (Care and Protection of Children) Act 2000 was ruled by Apex Court in this landmark judgement.

Mr. R.R. George Christopher and Mrs. Kristy Chandra, 2010-2-LW881
Application No. 2805 of 2009 in O.P. No. 717 of 2007
Ratio Decidendi

Family - Adoption - Juvenile Justice (Care & Protection of Children) Act, 2000 - In response to Application filed by Applicants for adoption of minor child, permission was granted to Applicants - However, when Petitioner approached his employer to get due benefits to minor child, employer informed that as child was not legally adopted, Petitioners were only guardians, no benefits would accrue to adopted child - Hence, this Application - Held, Applicants were Christians - However, Canon Law, which was applicable to Petitioners, provided for adoption if Civil Law of that Country permit same - Applicants had approached Court and got guardianship order - Subsequently applicant performed necessary rites for adopting child - Act provided 'adoption' as means to rehabilitate and socially reintegrate child - Act had empowered State Government and JJ Board to give child for adoption - Therefore, aspiring parents, who intend to adopt children, without being inhibited by their personal laws, were entitled to adopt child in terms of provisions of the Act - Therefore, Respondents were directed to recognize minor as child of Applicants and confer all service benefits that were available to child of staff of Air India - Application allowed.

2)                 Responsibility of the Institution
Jay Kevin Salerno Case
Equivalent citations: AIR 1988 Bom 139, 1988 (2) BomCR 239, (1987) 89 BOMLR 521 - Bombay High Court - Bench: S Manohar - date of Judgment: 7 October, 1987

" where the custody of a child is with an institution, the child is kept in a private nursing home or with a private party for better individual care of the child, it does not mean that the institution ceases to have the custody of the child."


3)                 No benefits under Article 15 (4) if adopted by Forward Caste
In K. Shantha Kumar v. State of Mysore, Nataraja v. Selection Committee and R. Srinivasa v. Chairman, Selection Committee the Karnataka High Court had consistently held that a boy belonging to a forward caste adopted by a Backward Class citizen is not entitled to the benefit of reservation under Article 15(4)

4)                 Guidelines for NRI to adopt
LAKSHMI KANT PANDEY Vs UNION OF INDIA 1984 SCR (2) 795
FACTS :- The petitioner, an advocate of the Supreme Court addressed a letter in public interest to the Court, complaining about malpractices indulged in by social organisation and voluntary agencies engaged in the work of offering Indian Children in adoption to foreign parents. The petitioner alleged that not only Indian Children of tender age are under the guise of adoption "exposed          to the long horrendous journey to distant foreign countries where these children are not placed in the shelter and Relief Houses, but in course of time they become beggars or prostitutes for       want of proper care from their alleged foster parents. Being a public interest litigation, the letter was treated as a writ petition.

HELD :-
·                   When the parents of a child want to give it away in adoption or the child is abandoned every effort must be made first to find adoptive parents for it within the country, if it is not possible to find suitable adoptive parents for the child within    the country, the child may be given in adoption to foreign parents rather than allow the child to grow up in an orphanage.
·                    
           The primary object of giving the child in adoption should    be the welfare of the child. Great care has to be exercised in permitting the child to be given in adoption to foreign parents.
·                     
             Guardians and Wards Act 1890 shall be resorted for the purpose of facilitating adoption by foreign parents.
·                      Every   application from a foreigner desiring to adopt a child must be sponsored by a social or child welfare    agency recognised or licensed by the government of the country in which the foreigner is resident.
·              
          No application by a foreigner for taking a child in adoption should be entertained directly by any social or welfare agency of India working in the area of inter-country adoption or by any institution or centre or home to which children are committed by the juvenile court.
·                    
           Every application of a foreigner for taking a child in adoption must be accompanied by a home study report and the social or child welfare agency sponsor in such application should also send along with it a recent photograph of the family, a marriage certificate      of the foreigner and his or her spouse as also a declaration concerning their health together with a certificate regarding their medical fitness duly certified by a medical doctor, a declaration regarding their financial status along with supporting documents including employer's certificate where applicable, income-tax assessment orders, bank   references and particulars concerning the properties owned by them, and also a declaration stating that they are willing to be appointed guardian of the child.
·          
     An undertaking that they would adopt the child according to the law of their country within a period of not more than two years from time of arrival of the child in their country and give intimation of such adoption to the court appointing them as guardian as also to the social or child welfare agency in India.
·        
      They would maintain the child and provide it necessary education and up-bringing according to their status.
·       
         They would also send to the court and to the social or child welfare agency in India reports relating to the   progress of the child.
·      
        The Government of India shall prepare a list of social or child welfare agencies licensed or recognised for inter-country adoption by the  Government of each foreign country where children from India are taken in adoption.
·         
      Such lists shall be supplied by the Government of India to the various High Courts in India and to the social child welfare agencies operating in India.
·       
     Biological parents must be informed about all the implication of adoption, and even after taking of the decision by them a futher period of 3 months should be given to them for reconsideration.
·   
          After expiry of 3 months child can be given in adoption to foreign parent without consulting biological parents.
·         If the biological parents state a preference for the religious upbringing of the child, their wish should as far as possible be respected, but ultimately the interest of the child alone should be  the sole guiding factor and      the biological parents should be informed that the child may be given in adoption even to a foreigner who professes a religion different from that of the biological parents.
· 
        Foreign applications should be only through a social or child welfare agency licensed or recognised by the Government of India or the Government of the State in which it is operating.
·         
      Any unrecognised institution, centre or agency which has a child under its care would have to     approach a recognised social or child welfare agency if it desires such child to be given in inter country adoption.
·      
        The Government of India or the Government of a State recognising any social or child welfare agency for inter-country adoptions must insist as a condition of recognition that the social or child welfare agency shall maintain proper accounts which shall be audited by a chartered accountant at the end of every year and it shall not charge to the foreigner wishing to adopt a child any amount in excess of that actually in cured by way of legal or other expenses for adoption.
·    
           The recognised social or child welfare agency must prepare a child study report through a professional social worker giving all relevant information in regard to the child.
·  
        Recognized social or child welfare agency through which an application of a foreigner for taking a child in adoption is routed must before offering a child in adoption, make sure that the child is free to be adopted and satisfy the court that the child is legally available for adoption.

·      No notice under Section 11 of the Guardians and Wards Act, 1890 should be issued to the biological parents of the child.
·      
              Notice of the application for guardianship should also not be published in any newspaper.
·         Where an order appointing    guardian of a child is made by the    court, immediate intimation of the same shall be given to the Ministry of Social Welfare, Government of India as also to the Ministry of Social Welfare of the Government of the State in which the court is situate.
·       
        The social or child welfare agency which is looking after the child selected by a prospective adoptive parent, may legitimately receive from such prospective adoptive parent maintenance expenses at a rate of not exceeding Rs.60 per day (this outer limit being subjective to revision by the Ministry of Social Welfare, Government of India from time to time) from the date of selection of the child by him until the date the child leaves for going to is new home.
·   
          If a child is to be given in inter-country adoption, it would be desirable that it is given in such adoption as far as possible before it completes the age of 3 years.
· 
         Wishes of Children above the age of seven years may be ascertained if they are in a position to indicate any preference.

     The proceedings on the Application for guardianship should be held by the Court in camera and should be made confidential.
·      
          A foreigner may make voluntary donation to any social       or child welfare agency but no such donation from a prospective adoptive parents shall be received until after the child has reached the country of its prospective adoptive parent.

Stephanie Joan Becker V/s State and Ors.
Citations: AIR2013SC3495, 2013(6)ALD3, 2013(2)ALLMR(SC)489, 2013 (97) ALR 467, 2013(2)ALT52, 2013 2 AWC1119SC, 2013(2)BomCR539

Guardians and Wards Act, 1890 - Sections 7 and 26--Juvenile Justice (Care and Protection of Children) Act, 2000--Section 41(3) read with Rule 33 of 2007 Rules--Inter-country adoption--Application by appellant to court for appointing her as guardian of female orphan child aged about 10 years--Another application for permission of court to take child out of country for adoption--Application rejected by trial court--And High Court did not interfere--Adoption process spelt out under Guidelines, adhered to--Expert bodies also in favour of adoption of child--Appellant could not be said disqualified or disentitled to relief sought by her--Impugned orders set aside--Appellant appointed as legal guardian of female child with necessary directions.


5)                 In the Below mentioned judgement Bombay High Court stated that the PAP’s can adopt child of same gender under certain circumstances.

·         2009 (111) BOMLR 3816. In Re : Adoption of Payal by Sharinee Vinay Pathak and his wife Sonika Sahay and Pathak.
·         Ratio Decidendi: 
·         When the child to be adopted is orphaned, abandoned or surrendered child or a child in need of care and protection as defined in Juvenile Justice Act, the bar imposed by Section 11 (i) and (ii) of Hindu Adoption and Maintenance Act does not bar the Hindu having biological child from adopting the child of same gender.

6)       In a Recent case Supreme Court bench of Justices Vikramajit Sen and Abhay Manohar recognized unwed mothers as the legal guardian of her child and further held that she cannot be forced to name the father, nor does she need his consent, while deciding guardianship rights.