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.
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.
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