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| Law Relating To Adoption in India: A Brief Study | |||||||||||||
| Paper Id :
17565 Submission Date :
03/04/2023 Acceptance Date :
22/04/2023 Publication Date :
25/04/2023
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| Abstract | A major part of India’s population consists of children, and unfortunately there are huge number of children are orphan or abandoned. These children need the care, love, and opportunities that family, as a fundamental social institution, offers in order to develop and grow in a way that is appropriate for society. Human rights legislation defends everyone's inherent right to marriage and parenthood. Adoption is the process by which orphaned or abandoned children get family’s love and affection with due care, safety and health. This paper analyses the existing legal provisions and regulations on Adoption in India. This paper also highlights the role of Authorities or Agencies working in promoting adoption in India. | ||||||||||||
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| Keywords | Adoption, Family, Orphan, Human Rights, Juvenile. | ||||||||||||
| Introduction |
“Adoption is not about finding children for families, it’s about finding families for children” –Joyce Maguire Pavao
Family is a social icon and the people who are part of it are blessed enough, but few children are not fortunate enough to be part of it. Few children either have been abandoned by their family members or they are destined to be orphans. Primarily the care of the children lies with the parents. Children grow and develop in the most careful manner under upbringing of their parents. The statistics (Censusindia) shows the number of children in India are 16,45,15,253 which is 13.58% of total population of India. The ratio of orphaned or abandoned children is 4% of the youth population. These data show that our society and government has to think about the children are being denied the opportunity to live life with safety and good health. The focal point of abandoned children is the protection of their life with safety and due care. Adoption is the process which protects and secures the abandoned and orphaned children through an environment of peace, love & understanding to develop. The purpose of adoption varies from time to time. Historically, the reason behind adoption was to preserve family, inheritance or to attain political power. Earlier children’s welfare was neglected. Now at present, the purpose of adoption is the best interest of the child which enshrined in adoption laws. |
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| Aim of study | The main objectives of this paper are as follows: 1. To analyses the existing legal provisions and regulations on Adoption in India. 2. To analysis the judicial response towards child adoption and court procedure for adoption in India. 3. To find out the role of Authorities or Agencies working in promoting adoption in India. 4. To find out the proper solutions for the problems of child adoption. | ||||||||||||
| Review of Literature | In this research work, review of related literature has been incorporated so as to give more clarity to the concept. The review covers literatures like book, journals, web-based materials and government documents in public domain till 2021-22. In book on Adoption law and justice to the child by Asha Bajpai, explained that adoption meant many things to marry peoples in its long history in the Indian sub-continent. An article on “Caring for Destitute Children” by Punalekar,S.P, Published in Social Welfare Department, June 2016 In this article the author evaluated periodically to understand the effectiveness of the institutions working for the child welfare. In Adoption
Trends in 2023, author discuss about the varying trends of international
adoption. Author concluded that the number of intercounty adoptions continues
to decrease due to the political climate, corruption, human rights issues,
accreditation requirements, and international laws. In
book on Law and Procedure relating to Inter Country Adoptions in India by Dr.
Rama Devi Gudemela explained the procedure of adoption in India country as well
as inter country. |
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| Main Text | Legal
Provisions and Regulations on Adoption International
Instruments on Adoption There are many
wonderful methods to adopt a person since each state has the authority to
govern the manner in which an adoption may be accomplished. However, several
international agreements make an effort to standardise various countries'
adoption laws. Numerous international agreements have emphasised that children
require specific protections, care, and protection from the law. United
Nation Charter 1945 directes to all the members of United Nations, to create
conditions of stability and well-being which are necessary for peaceful and
friendly relations among nations based on respect for the principle of equal
rights and self – determination of people.[1] The provision
relating to special care and assistance of women and children are also
enshrined in The Universal Declaration of Human Rights. As per Article 25(2)[2] all children whether born in or out
of wedlock, shall enjoy the same social protection. International Covenant on
Economic, Social and Cultural Rights, 1966 provided that the family, which is
the natural and essential group unit of society, should be given the broadest
protection and support possible, especially during the early stages of its
formation and while it is in charge of the upbringing and education of
dependent children. The provision relating to found a family is also provided
under International Covenant on Civil and Political Rights, 1966.[3] Geneva
Declaration on the Rights of Child, 1956 emphasise the protection of
children. The provisions of this declaration enable the child to develop
physically, mentally, morally, spiritually, and socially in a healthy and
normal way, as well as in circumstances of freedom and dignity, the child must
enjoy particular protection and shall be provided opportunities and facilities
by legislation and other methods.[4] Convention on the Rights of Child,
1989 recognizes a child’s right to an identity, family and adoption. India
became the signatory to this convention on 11 December, 1992. The parties to
the Convention has been directed permit the system of adoption in which
the interest of the child should be paramount.[5] Additionally,
there were a number of general declarations, conventions, and conventions that
outlined children's rights. Adoption's primary goal is to give a child who
cannot be cared for by his or her biological parents a permanent family,
according to the 1986 Declaration of Social and Legal Principles Relating to
the Protection and Welfare of Children with Special Reference to Foster,
Placement, and Adoption Nationally and Internationally. One may argue that
foster care should likewise be governed by the law. Another
convention took place for promotion of inter country adoption was Hague
Convention on Protection of Children and Cooperation in respect of Inter
country Adoption, 1993. India also became party to this convention in 2003. The
Convention establishes a framework of minimal standards and practises that must
be followed in order to safeguard the interests of the concerned children's
biological and adoptive parents as well as the children themselves. In addition
to those outlined in the Convention, contracting states are able to maintain or
impose other conditions and restrictions. Nnational
Instruments on Adoption In India at
present two Acts deals with adoption of children : (a) Hindu Adoption
Maintenance Act, 1956 (HAMA), (b) Juvenile Justice (Care & Protection of
Children) Act, 2015 (JJ Act). The Hindu
Adoption And Maintenance Act, 1956 The Hindu
adoption and Maintenance Act, 1956 applies to Hindus and a wide category of
persons including Jains, Sikhs, and Buddhists. A Hindu parent/guardian can give
a child in adoption to another Hindu parent.[6] This Act imposes conditions
for valid adoption and if these conditions have not been fulfilled then
adoption become null and void. The person adopting and person giving in
adoption must be lawfully capable of taking or giving a son or
daughter in adoption; The person adopted must be lawfully capable of being
taken in adoption; the adoption is made in compliance with the other conditions
mentioned. These conditions are essential otherwise it is not valid adoption
under this Act. A parent may
adopt a male child under this Act if he does not already have a male child or
grandchild, or a female child if he does not already have a female child or
grandchild. If a Hindu male wants to adopt a child then he has to comply Sec 7
of the Hindu Adoption and Maintenance Act, 1956 defines capacity of Hindu Male
for the adoption of Child. He must be of major and of sound mind. If
married man wants to adopt child there need to have consent of his wife.
Without taking consent of wife if man adopt child than that adoption is Void.
If man has more than one wife then it is necessary to have consent of each
wife. Wife’s consent may be expressed or implied.[7] The consent of wife may be ignored
if wife ceased to be Hindu, has totally set aside the world or declared of
unsound mind by a Court. If a Hindu male is adopting female child, then the age
difference of 21 years between daughter and father is compulsory. The Hindu
adoption and Maintenance Act, 1956 allowed two categories of women to adopt1)
Single women which included unmarried, divorced and widowed women and 2) women
whose husband had forfeited their claim to prevent adoption by virtue of
insanity, renunciation of the world or ceasing to be a Hindu.[8] Conditions for
a child being adopted are mentioned under Sec. 10[9]. e or she is a Hindu; (b) he or she has
not already been adopted; (c) he or she has not been married, unless there is a
custom or usage applicable to the parties which permits persons who are married
being taken in adoption; (d) he or she has not completed the age of fifteen
years, unless there is a custom or usage applicable to the parties which
permits persons who have completed the age of fifteen years being taken in
adoption. Adoption under
the Juvenile Justice (Care and Protection of Children) Act, 2015 and Adoption
Regulations 2017. The Juvenile
Justice (Care and Protection of Children) Act, 2015 deals with various aspects
of adoption of orphaned, abandoned and surrendered children. Under this Act
every person has right to adopt irrespective of their religion. Fundamental
Principles Governing Adoption 1) The child’s
best interest shall be the primary concern while processing any adoption; 2)
Preference shall be given to place the child in adoption with Indian Citizen
and with due regard to the principle of placement of the child in his own socio
– cultural environment as far as possible; 3) All adoptions shall be registered
on child Adoption Resource Information and Guidance System and CARA should
maintain the confidentiality of the details[10]; 4) Adoption shall be resorted to for
ensuring right to family for the orphan, abandoned and surrendered children.[11] 5) No report in any newspaper,
magazine, new – sheet or audio – visual media or other forms of communication
regarding any inquiry or investigation or judicial procedure, shall disclose
the name , address or school or any other particular which may lead to the
identification of a child in conflict with law or a child in need of care and
protection or a child victim or witness of a crime, involved in such matter,
under any other law for the time being in force , nor shall the picture of any
such child be published.[12] The age of
prospective adoptive parents, , shall be counted for deciding the eligibility
and the eligibility of prospective adoptive parents to apply for children of
different age groups[13] shall be as under:-
Agencies of
Adoption In order to
promote the adoption programme in the country various agencies are working in
India. In central level Central Adoption Resource Authority, in State level
State Adoption Resource Agency, in District Level Specialized Adoption Agencies
are specifically deals with in-country and inter-country adoption. Central
Adoption Resource Authority (CARA). This is a
statutory body of Ministry of Women & Child Development,
Government of India. It functions as the nodal body for adoption of Indian
children and is mandated to monitor and regulate in-country and inter-country
adoptions. CARA is designated as the Central Authority to deal with
inter-country adoptions in accordance with the provisions of the Hague
Convention on Inter-country Adoption, 1993, ratified by Government of India in
2003.[14] This agency has been set by
government on direction of supreme court in the case of L.K.Pandey V.
Government of India[15] In order to
promote adoption and non-institutional care, CARA has been organising a variety
of training and development programmes, including state orientation programmes
on adoption and non-institutional care, international, national, and regional
level meets, training on the Child Adoption Resource Information and Guidance
System, consultations with the judiciary, adoptive and prospective adoptive
parents get-togethers, and other advocacy programmes. State Adoption
Resource Agency (SARA Integrated
Child Protection Scheme calls for the establishment of a State Adoption
Resource Agency (SARA) in each state or UT unit as a unit of SCPS to coordinate,
monitor, and develop adoption work as well as provide Secretarial and
Administrative Assistance to the Committee. This is done in order to assist
Central Adoption Resource Authority in promoting intra-country adoption and
inter-country adoption (SAAC). It always operates under the direction of a
centralised power.[16] Specialized
Adoption Agencies (SAAs) In accordance
with the adoption Regulations drafted by the authority for the rehabilitation
of orphaned, abandoned, or surrendered children through adoption and
non-institutional care as per section 65(1) of the Juvenile Justice (Care and
Protection of Children) Act 2015, the state government shall recognize one or
more institutions or organisations in each district as Specialized Adoption
Agencies. Authorised
Foreign Adoption Agency (AFAA) AFAA is
recognized as a foreign social or child welfare agency that is authorized by
CARA on the recommendation of the concerned Central Authority or Government
Department of that country for coordinating all matters relating to adoption of
an Indian child by a citizen of that country. District Child Protection Unit (DCPU) DCPU is unit set up by the State Government at district level under Sec 61A of the Act.[17] It identifies orphan, abandoned and surrendered children in the district and gets them declared legally free for adoption by Child Welfare Committee. |
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| Methodology | This study makes use of analytical, and critical research. It is based on legal study that is both doctrinal and non-doctrinal. Textbooks, journals, legislative materials, official publications, law reports, law journals, conferences, and seminar papers should all be used when conducting doctrinal study. The researcher compiles significant news. |
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| Conclusion | The issue encountered by prospective adoptive parents at the time of adoption of a child continues to pose a severe threat to the kid as well as the adoptive parents today, in spite of several international and national legislation enacted for the best benefit of the child. It was discovered by the study that there is a need to raise awareness of the adoption process and specialist adoption agencies. The adoption process causes stress and pressure for potential adoptive parents. The system has to be adjusted in order to favour domestic adoptions as much as feasible. This will make it easier for the agency to monitor parents and communicate with them more frequently. Currently, the agencies use a local agency in their region to help them update the adoption agency if there is a couple from another state. In India, just one kid is available every twenty adoptive parents, despite the fact that there are millions of orphans who need homes. In this sense, it is the responsibility of the state to proclaim that all orphans and the poor are legitimate candidates for adoption. In this regard, every Indian child grows up in a good household and leads a respectable life. | ||||||||||||
| Suggestions for the future Study | Suggestions are as follows for the adoption process: 1. For parents who wish to place their child for adoption, awareness campaigns should be organised for the poor and needy. In this regard, the government should take all necessary steps to educate prospective adoptive parents on the benefits of adopting a child solely through a licenced adoption agency rather than from an unlicensed institution, person, maternity home, nursing home, or hospital. 2. If the adopted child has any negative thoughts, the adoptive parents must treat the child tenderly and with love. Make sure the youngster doesn't feel excluded from the family and attempt to give them the impression that they are an integral part of it. In this aspect, pre-adoption and post-adoption therapy for potential adoptive parents is necessary. 3. The government should provide financial assistance to poor persons who wants to adopt. 4. It is necessary to codify all the laws relating to adoption so that there will be no confusions regarding law of adoption. 5. In regards to the adoption procedure, the rights and obligations of adoptive parents as well as the adopted child, the legal aid cell should offer prospective adoptive parents legal counsel or information. 6. Strict rules should be made for granting licence to adoption agencies. Penal provisions must be included in case of failure by the agencies to comply with the adoption rules and regulations. |
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| References | 1. Alfred Hopkinson.K.C, ‘ Adoption’ ( Journal of Comparative Legislation and International Law, Third Series, Volume 2, No 1) , 2018
2. Anjani Kant , ‘ Women and Law’ ( APH publishing, New Delhi) , 2003
3. Asha Bajpai ‘Adoption law and justice to child’, (Centre for Child & the Law, National Law School of India University, Bangalore),1996
4. Choudhari, ‘ The Guardian and Wards Act ,1890’ ( Premier Publication Company, Allahabad), 2009
5. Deelip Chand Manooja, ‘Adoption Law And Practice’ ,( Deep & Deep Publication, New Delhi), 2008
6. Dinshah Fardunji Mulla, ‘Principles of Hindu Law’ ( Lexis Nexis Butterworths Wadhwa, Nagpur), 2010
7. Dr.Reetika Bansal , ‘Intercountry Adoption: A Journey from Hague to India still waiting for its End’, (The official Journal of National legal service authority, New Delhi, Volume XIII ,October) ,2012.
8. Dr, H, O.Agarwa, ‘Human Rights’ (Central Law Publication, Allahabad), 2016
9. Dr.Paras Diwan, ‘Modern Hindu Law’ (Allahabad Law Agency, Haryana),2009
10. Dr. U.S.Sarkar, ‘Epochs in Hindu Legal History’ (Visheveshvaranand Vedic Research Institute, Lohore), 1958
11. Dr. U.P.D.Kesari , ‘Modern Hindu Law’ ( Central Law Publication, Allahabad),2013
12. Dr.V.K Anand, ‘Human Rights’, (Allahabad Law Agency, Haryana) ,2008
13. Mayne, ‘ Hindu Law & Usage’( Bharat Law House, New Delhi), 2012
14. Niraj Meena, ‘Adoption Laws in India: Changing Existing Law’ ( Niraj Meena , Published in Manupatra), 2015.
15. Dr. Rama Devi Gudemela, ‘Law and Procedure relating to Inter Country Adoptions in India’(Asia Law House), 2022.
16. Adoption Trends in 2023. (2023, February 6). JD Supra. https://www.jdsupra.com/legalnews/adoption-trends-in-2023-4561090/ |
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| Endnote | 1. Art. 55 of United Nation Charter 1945. 2. Universal Declaration of Human Rights, 1948. 3. Art. 24 of International Covenant on Civil and Political Rights, 1966. 4. Principle 2 of the Declaration of the rights of the child,1956. 5. Article 21 of The Convention on the Rights of Child, 1989. 6. Sec 2 of Hindu Adoption and Maintenance Act, 1956 7. Sec 7 of HAMA, 1955. 8. Sec 8 of HAMA, 1955. 9. HAMA, 1955. 10. Regulation 3 of the Adoption Regulation 2017 11. Section 56(1) of Juvenile Justice( Care and Protection of Children) Act, 2015 12. Section 74(2) of Juvenile Justice ( Care and Protection of Children) Act ,2015 13. Adoption Regulation 2017 [Internet Source http://cara.nic.in last accessed on 25 July, 2022]. 14. http://cara.nic.in 15. 1987 AIR 232, 1987 SCR (1) 383 16. http://cara.nic.in/Regulation/SARA.html 17. The Juvenile Justice (Care and Protection of Children) Act, 2015 |
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