ADOPTION LAWS IN INDIA: REVIEWS AND RECOMMENDATION NEEDED

*SIYA SHRUTI

Abstract
Adoption means 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 the rights, privileges and responsibilities that are attached to the relationship.
Through this paper the only aim of the researcher is to collect as much data and
information attached to the concept of adoption in India including adoption in Hindu
Law, Muslim Law and other religions prevalent in India. This paper promises to offer a
comprehensive and exhaustive report on adoption law in India. Through this paper the
researcher would like to draw the attention towards the drawbacks and the discrepancies
that are present in this law. While doing so we will be dealing with the various statutes
like Hindu Adoption and Maintenance Act, 1956, the personal Laws Amendment Act, 2010
& The Guardian and wards Act, 1890. Adoption is a sophisticated and vulnerable concept
which was susceptible to the societal stigma that was attached to it therein.

I. INTRODUCTION
Adoption as a legal concept was available only among the members of the Hindu
community except where custom permits such adoption for any section of the polity. Only
Hindus were allowed to legally adopt the children and the other communities could only
act

as

legal

guardians

of

the

children.

Adoption is the entry or admission of stranger child to a family at the place of child by
birth.
Adoption has always been considered as a wonderful opportunity to provide a child with
home and parents. It offers an excellent alternative to institutional care of destitute,
abandoned and neglected child in an atmosphere of love, affection and understanding
which only a family can provide. Through this project the only aim of the researcher is to
collect as much data and information attached to the concept of adoption in India
including adoption in Hindu Law, Muslim Law and other religions prevalent in India.
In the early days, the practise of adoption was shrouded in the secrecy, which was
restricted in an Indian traditional family. The tradition at that time was that, childless

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couples adopt a child with a view to ensure the continuity of tradition and to avoid
alienation of property. The cases of adopted child being changed as a biological child by
means of various subterfuge was also significant in those days.
Although there is no general law of adoption, yet it is permitted by a statute amongst
Hindus and by custom amongst a few numerically insignificant categories of persons. Since
adoption is legal affiliation of a child, it forms the subject matter of personal law. The
religion specific nature of adoption laws was a very conservative step. It reinforced
practices that were unjust to children and hindered the formation of a Uniform civil code.
Article 44 of the Indian Constitution declares that The state shall Endeavour to secure for
citizens a Uniform Civil Code throughout the territory of India.
Over the years several attempts were made to formulate a general secular law on adoption.
The attempts of Parliament in this direction did not bear fruit, all these went in vain on
account of a number of reasons. The history of all such efforts does not bring credit to the
secular credentials of the Indian polity.
A. MEANING OF ADOPTION
Adoption means 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 the rights, privileges and responsibilities that are attached to the relationship. Adoption
of orphan, abandoned and surrendered children in India is governed by a set of guidelines
notified by Government of India.
Adoption is the transplantation of a son from the family in which he is born, to
another family where he is given by the natural parents by way of gift. The adopted son is
then taken as being born in the new family and acquires rights, duties and status there
only, and his tie with the old family comes to an end. The concept of adoption is
concerned with Hindus only. Concept of adoption can be traced even from Vedic times.
The ancient texts Dattaka Mimamsa, Dattaka Chandrika, Manu, Yagnavalkya, Gautama,
Baudhayana, and Kautilya etc well refer to this concept.
The adoption is not an institution peculiar to Hinduism, but owes its origin to the
social communism peculiar to the primitive races. In early times, children irrespective of

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their sex were taken in adoption. Manu defines an adopted son as follows A son equal
in caste and affectionately disposed, whom his mother or father (or both) give with water
at a time of calamity, is known as the Dattrima (Dattaka) son.

B. ADOPTION UNDER HINDU LAW: ANCIENT PERSPECTIVE

Adoption is the admission of a stranger to the privileges of a child by birth- a legally
recognized form of affiliation. The adopted son is uprooted from his natural family and
transplanted in to adoptive family like a natural son. Adoption is a process to incorporate
a child permanently into a family with all the rights of a natural child, in which he was not
been born. Traditionally, a child was adopted for temporal and spiritual purposes and
more recently, to satisfy the emotional and parental instincts of the adopters.
Manu says, 'by a son, a man attains victory over all people; by a son's son he enjoys
immortality;

and

thereafter

by

the

son

of

that

grandson

he

reaches

the solar abode The Shastric Hindu Law looked at adoption more as a sacramental than
secular act. Hindus believed that one who died without having a son would go to hell
called poota and it was only a son who could save the father from going to Poota. This
was one of the reasons to beget a son.
Ancient Hindu Shastras recognized Dattaka and Kritrima as types of sons. Dattaka son
were further sub divided into two types Datttaka Chandrika and Datttaka. .Datttaka
Chandrika was the adoption not so necessary, adoption which was optional. Datttaka
Shishoma was the adoption that was compulsory for the performance of the funereal rights
and for the continuance of the lineage. In the Hindu Shastras, it was said that the adopted
son should be a reflection of the natural son. This guaranteed protection and care for the
adopted son. He was not merely adoptive parents, but all relations on the paternal and
maternal side in the adoptive family also came into existence. This means he cannot marry
the daughter of his adoptive parents, whether the daughter was natural-born or adopted. In
the modern adoption laws, the main purpose is considered to be to provide consolation
and relief to a childless person, and on the other hand, rescue the helpless, the unwanted,
the destitute or the orphan child by providing it with parents.
Purpose of adoption under Ancient Hindu law

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In the ancient era, things were difficult as there was a societal stigma attached to the
concept and the practise of adoption of a stranger child into ones own family. It was
regarded as a symbol of impotency to the male member and a lot was to be suffered by the
woman of the family who was blamed for giving birth to only female child not a male
child. Whereas it is so well proven that it is the chromosome of males that is actually a
determinant factor of the sex of the baby to take birth.
The woman has suffered a lot at the hands of their incapacity to give birth to a male child.
Hence conversely we can very well assert the fact that the people of ancient era had a
great affinity towards a male child.
There were two reasons why a male child or rather a son was necessary to be existing in a
family. The reasons are twofold; firstly to secure ones performance of funereal rights.
The ancient foregoing myth that has existed long way back in our so called pragmatic
society is that if a mans funereal is not done by his son then he would never get a place in
the heaven and that his soul would never rest at peace and that he would never attain
immortality and for preservation and the continuance of lineage. Lineage refers to the
concept of continuance of ones own family name. Hence, if a man would die sonless, it is
assumed that his family name would end at his death and hence there is requirement of a
male child in the continuance of family name. So at that juncture of time there was
requirement of a male child in the family and hence the person used to adopt only a male
child. There was no provision for the adoption of a female child.
C. ADOPTION UNDER HINDU LAW: PRESENT STATUS
The present scenario of adoption is far away from the sacramental aspect. The present rule
of adoption is governed by the rules and regulations prescribed by the statutory laws laid
down by the legislators. Currently, the adoption under Hindu Law is governed by The
Hindu Adoption and Maintenance Act, 1956.The Hindu Adoption and Maintenance Act,
1956 extends to only the Hindus, which are defined under Section-2 of the Act and
include any person, who is a Hindu by religion, including a Virashaiva, a Lingayat or a
follower of the Brahmo, Prarthana or Arya Samaj,or a Buddhist, Jaina or Sikh by
religion, to any other person who is not a Muslim, Christian, Parsi or Jew by religion. It
also includes any legitimate or illegitimate child who has been abandoned both by his
father and mother or whose parentage is not known and who in either case is brought up

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as a Hindu, Buddhist, Jaina or Sikh.Adoption is recognized by the Hindus and is not

recognized by Muslims, Christian and Parsi.
The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to
minority and guardianship. As in the case of unmodified law, it has upheld the superior
right of father. It lies down that a child is a minor till the age of 18 years. Natural guardian
for both boys and unmarried girls is first the father and then the mother. Prior right of
mother is recognized only for the custody of children below five. In case of illegitimate
children, the mother has a better claim than the putative father. The act makes no
distinction between the person of the minor and his property and, therefore guardianship
implies control over both. The Act directs that in deciding the question of guardianship,
courts must take the welfare of child as the paramount consideration. Section 6 of the said
Act, provides about the natural guardians of a Hindu minor. Section 7 of the very Act
speaks about the natural guardianship of adopted son
II. A. STATUTES GOVERNING ADOPTION IN RECENT TIMES: HINDU LAW
1) The Hindu adoption and Maintenance act, 1956
Adoption in the Hindus is covered by The Hindu Adoptions Act and after the coming of
this Act all adoptions can be made in accordance with this Act. It came into effect from
21st December, 1956. Prior to this Act only a male could be adopted, but the Act makes a
provision that a female may also be adopted. This Act extends to the whole of India except
the state of Jammu and Kashmir. It applies to Hindus, Buddhists, Janis and Sikhs and to
any other person who is not a Muslim, Christian, Parsi by religion.
The Hindu Adoptions and Maintenance Act (HAMA), 1956, provides for adoption of
Hindu children by the adoptive parents belonging to Hinduism. This is not applicable to
other communities like Muslims, Christians and Parsi. They have to recourse to Guardians
and Wards Act, 1890, wherein they become guardians of children. But the child does not
have the status as it would have had, had it been born to its adoptive parents. One of
features of this Act is that no Hindu person can adopt a son or daughter, if they already
have a child of that sex. Often the intentions behind the law are good, but the methods
adopted fall short. The HAMA provides that there should be an age difference of 21 years

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between the adoptive parents and the adopted child whenever they are of opposite sex. This
is intended to prevent sexual abuse.
Requirements for a valid adoption
Section 6 enumerates the requisites of a valid adoption. It lays down that no adoption
shall be valid unless the person adopting has the capacity as also the right to take in
adoption; the person giving in adoption has the capacity to do so; the person adopted is
capable of being taken in adoption, and the adoption is made in compliance with the other
conditions mentioned in Chapter II. In the Hindu law the requirements for a valid
adoption. The Act reads,
I.
II.
III.

The person adopting is lawfully capable of taking in adoption

The person giving in adoption is lawfully capable of giving in adoption
The person adopted is lawfully capable of being taken in adoption
The adoption is completed by an actual giving and taking and the ceremony called datta
homan (oblation to the fire) has been performed. However this may not be essential in all
cases as to the validity of adoption?
Who May Adopt
Capacity of male (Section 7)
Section 7 of the Hindu Adoptions and Maintenance Act, prescribes the general capacity of
a Hindu male to take a son or a daughter in adoption if he is of sound mind and not minor.
Similarly, section 8 of the Act empowers a female Hindu to take a son or daughter in
adoption subject to the fulfillment of conditions prescribed in the Act. Section 10 speaks
about the persons who may be adopted. This section provides that a child male or female
is capable of being taken in adoption if he or she is a Hindu and not already been
adoptedAny male Hindu, who is of sound mind and is not a minor, has the capacity to
take a son or daughter in adoption. Provided that if he has a wife living, he shall not adopt
except with the consent of his wife, unless his wife 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.

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If a person has more than one wife living at the time of adoption the consent of all the
wives is necessary unless the consent of one of them is unnecessary for any of the reasons
specified in the preceding provision. The 1956 Act now provides for adoption of boys as
well as girls. By virtue of the proviso to Section 7, the consent of wife has been made a
condition precedent for adoption by a male Hindu. The mandatory requirement of the
wife's consent enables her to participate in the decision making process which vitally
affects the family. If the wife finds that the choice of the person to be adopted by the
husband is not appropriate or is not in the interest of the family then she can veto his
discretion.
Capacity of female (Section 8)
Any female Hindu
who is of sound mind
who is not a minor, and
Who is not married, or if married, whose marriage has been dissolved or whose husband
is dead or 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, has the
capacity to take a son or daughter in adoption. Where the woman is married it is the
husband who has the right to take in adoption with the consent of the wife. A female
Hindu who is of a sound mind and has completed the age of eighteen years can also take a
son or daughter in adoption to herself and in her own right. After the Personal laws
(Amendment) Act 2010, a females right to adopt has been brought at par with the males
rights.
Who may give a child in Adoption
No person except the father or mother or guardian of the child shall have the
capacity to give the child in adoption. The father alone if he is alive shall have the right to
give in adoption, but such right shall not be exercised except with the consent of the
mother unless the mother 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. The mother may give the child in adoption if the father is dead or 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. Where both the father and mother

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are dead or have completely and finally renounced the world or have abandoned the child
or have been declared by a court of competent jurisdiction to be of unsound mind or
where the parentage of the child is unknown - the guardian of the child may give the child
in adoption with the previous permission of the court. The court while granting
permission shall be satisfied that the adoption is for the welfare of the child and due
consideration will be given to the wishes of the child having regard for the age and
understanding of the child. The court shall be satisfied that no payment or reward in
consideration of the adoption except as the court may sanction has been given or
taken.
WHO MAY ADOPTED
No person can be adopted unless:
he or she is a Hindu;
he or she has not already been adopted;
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;
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
Thus, these are the rules and regulation prescribed for determining as to what is the
capacity to adopt, to give in adoption and to be adopted.
Other conditions for a valid adoption (Section 11)
The other requirement for the adoption to be rendered as valid are that while adopting a
child one must take into consonance and consideration the following points.
if the adoption is of a son, the adoptive father or mother by whom the adoption is made
must not have a Hindu son, son's son or son's son's son living at the time of adoption
if the adoption is of a daughter, the adoptive father or mother by whom the adoption is
made must not have a Hindu daughter or son's daughter living at the time of adoption;
if the adoption is by a male and the person to be adopted is a male, the adoptive father is
at least twenty one years older than the person to be adopted;

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 if the adoption is by a female and the person to be adopted is a male, the adoptive mother
s at least twenty one years older than the person to be adopted;
The same child may not be adopted simultaneously by two or more parents; the child to be
adopted must be actually given and taken in adoption with an intent to transfer the child
from the family of birth.
In case there is absence of compliance of any one of these rules prescribed by the stature
The Hindu adoption and maintenance Act,1956, the adoption would not be considered as
valid adoption.
EFFECTS OF ADOPTION
Section 12 declares that from the date of the adoption, an adopted child is deemed to be a
child of his/her adoptive father or mother for all purposes and his ties in the family of his
or her birth shall stand severed and replaced by those created in the adoptive family. In
Kartar Singh V. Gurdial Singh1 where the respondent who was adopted by his maternal
grandfather claimed property rights in the family of his birth, the court said that upon
adoption no rights remain in the family of birth.
Proviso (a) to this section contains a restriction on the marriage of adopted child with a
person to whom he or she could not have married if he or she had continued in the family
of his or her birth.
Clause (b) of the proviso saves the vested right of the adopted child in the property subject
to the obligations, if any, attached to the ownership of such property, including the
obligation to maintain relatives in the family of his or her birth.
Likewise, clause (c) to the proviso lies down that the adopted child shall not divest any
person of any estate vested in him or her before the date of adoption. Section16 which
embodies a rule of presumption lays down that whenever any document registered under
any law for the time being in force evidencing adoption and signed by the person giving
and person taking the child in adoption is produced before any court, then it shall presume
that the adoption has been made after complying with the provisions of the Act unless
proved otherwise.

(2008) 1 HLR 657 (P&H)

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Welfare of minor is of paramount consideration

According to Section 13, the adoptive child gets property rights in his new family, but an
adoption does not deprive the adoptive father or mother of the power to dispose of his or
her property by transfer inter vivos or by will, unless there is an agreement imposing such
restriction
Adoption once made is final and irrevocable. An adoption validly made cannot be
cancelled by the adopter, natural parents or any other person. Nor can an adopted child
renounce his adoptive parents and return to the family of his or her birth. This means that
if a person makes an adoption, under no circumstances he or she gets rid of the child. An
adopted child cannot again be given in adoption. Once an adoption has been duly made in
accordance with law, it cannot be cancelled nor can the adopted child, the adoptive
parents and the natural parents destroy the right of the adopted.
2) THE PERSONAL LAWS AMENDMENT, ACT, 2010
After the enactment of The Hindu adoption and maintenance Act, 1956, the various
sections of these statutory provisions underwent several amendments. The statute was put
into scrutiny and thence proposals for amendment were made. These proposals were then
incorporated through the personal laws amendment, Act, 2010.Thus, here in this part of
this project we are going to discuss the amendments that have been already incorporated
about this statute.
Amendment of section 8
In the Hindu Adoptions and Maintenance Act, 1956 (hereafter in this Chapter referred to
as the Hindu Adoptions and Maintenance Act), for section 8, the following section shall
be substituted, namely:
"8. Capacity of a female Hindu to take in adoption - Any female Hindu who is of sound
mind and is not a minor has the capacity to take a son or daughter in adoption: Provided
that, if she has a husband living, she shall not adopt a son or daughter except with the
consent of her husband unless the husband 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.".

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Amendment of section 9
In the Hindu Adoptions and Maintenance Act, in section 9,
(i) For sub-section (2), the following sub-section shall be substituted, namely:
"(2) Subject to the provisions of sub-section (4), 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."; (ii) sub-section (3)
shall be omitted.
3) HINDU MAINTENANCE & GUARDIANSHIP ACT, 1956
The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to
minority and guardianship. As in the case of unmodified law, it has upheld the superior
right of father. It lays down that a child is a minor till the age of 18 years. Natural guardian
for both boys and unmarried girls is first the father and then the mother. Prior right of
mother is recognized only for the custody of children below five.
In case of illegitimate children, the mother has a better claim than the putative father. The
act makes no distinction between the person of the minor and his property and, therefore
guardianship implies control over both. The Act directs that in deciding the question of
guardianship, courts must take the welfare of child as the paramount consideration. Section
6 of the said Act, provides about the natural guardians of a Hindu minor. Section 7 of the
very Act speaks about the natural guardianship of adopted son.
II. B. STATUTES GOVERNING OTHER RELIGIONS
1) THE GUARDIAN AND WARD ACT (GWA), 1890
Personal laws of Muslims, Christians, Parsi and Jews do not recognize complete adoption.
As non-Hindus do not have an enabling law to adopt a child legally, the people belonging
to these religions who are desirous of adopting a child can only take the child in
'guardianship' under the provisions of The Guardians and Wards Act, 1890. The statute
does not deal with adoption as such but mainly with guardianship. The process makes the

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child a ward, not an adopted child. Under this law, when children turn 21 years of age,
they no longer remain wards and assume individual identities. They do not have an
automatic right of inheritance. Adoptive parents have to leave whatever they wish to
bequeath to their children through a will, which can be contested by any `blood' relative.
The aforesaid enactments remain silent about the orphan, abandoned and surrendered
children. There was no codified legislation dealing with the adoption of the children of
these categories. As a result, several misconceptions or irregularities appeared in respect
of the custody, guardianship or adoption of these types of children, which were prejudicial
to the interest of the children.
Personal law of Muslims, Christians, Parsi and Jews does not recognise complete
adoption. As non-Hindus do not have an enabling law to adopt a child legally, those
desirous of adopting a child can only take the child in 'guardianship' under the provisions
of The Guardian and Wards Act, 1890.
This however does not provide to the child the same status as a child born biologically to
the family. Unlike a child adopted under the Hindu Adoption and Maintenance Act, 1956
the child cannot become their own, take their name or inherit their properly by right. This
Act confers only a guardian-ward relationship. This legal guardian-ward relationship
exists until the child completes 21 years of age. Foreigners, who seek to adopt an Indian
Child, do so under this Act to assume legal Guardianship of the child, after giving an
assurance to the court, that they would legally adopt the child as per the laws of their
country, within two years after the arrival of the child in their country.
ADOPTION UNDER MUSLIM LAW
Adoption is the transplantation of a son from the family in which he is born, into another
family by gift made by his natural parents to his adopting parents. Islam does not recognise
adoption. The Adoption of Children Bill, 1972 was not approved as the Muslims opposed
it. The Adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption
applicable to all communities other than the Muslim community, was opposed by the
Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt
Parsis from the bill. The National Adoption Bill, tabled twice in Parliament in the seventies,
has yet to enter the statute books. The history of attempt to bring in the concept of secular

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adoption into our system of laws narrates a sad tale of inaction and action without
conviction on the part of the legislature.
In Mohammed Allahabad Khan v. Mohammad Ismail it was held that there is nothing in
the Mohammedan Law similar to adoption as recognized in the Hindu System.
Acknowledgement of paternity under Muslim Law is the nearest approach to adoption.
The material difference between the two can be stated that in adoption, the adoptee is the
known son of another person, while one of the essentials of acknowledgement is that
acknowledge must not be known son of another. However an adoption can take place
from an orphanage by obtaining permission from the court under Guardians and Wards
Act.
The guardian/child relationship has specific rules under Islamic law, which renders
the relationship a bit different than what is common adoption practice today. The Islamic
term for what is commonly called adoption is kafala, which comes from a word that
means "to feed." In essence, it describes more of a foster-parent relationship.
ADOPTION UNDER PARSI LAWS:
The personal laws of these communities also do not recognize adoption and here too an
adoption can take place from an orphanage by obtaining permission from the court under
Guardians and wards act. However, there is a customary form of adoption prevalent
among the parsis known as palak.
ADOPTION UNDER CHRISTIAN LAWS:
A Christian has no adoption law. Since adoption is legal affiliation of a child, it forms the
subject matter of personal law. Christians have no adoption laws and have to approach
court under the Guardians and Wards Act, 1890. National Commission on Women has
stressed on the need for a uniform adoption law. Christians can take a child under the said
Act only under foster care. Once a child under foster care becomes major, he is free to
break away all his connections. Besides, such a child does not have legal right of
inheritance.
The general law relating to guardians and wards is contained in the Guardians and Wards
Act, 1890. It clearly lays down that father's right is primary and no other person can be

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appointed unless the father is found unfit. This Act also provides that the court must take
into consideration the welfare of the child while appointing a guardian under the Act.
2) THE JUVENILE JUSTICE ACT, 2000
Adoption can be a most beautiful solution not only for childless couples and single people
but also for homeless children. It enables a parent-child relationship to be established
between persons not biologically related. It is defined as a process by which people take a
child not born to them and raises it as a member of their family.
Adoption as a legal concept was available only among the members of the Hindu
community except where custom permits such adoption for any section of the polity. Only
Hindus were allowed to legally adopt the children and the other communities could only act
as

legal

guardians

of

the

children.

Article 44 of the Constitution declares that The State shall endeavor to secure for the
citizens a Uniform Civil Code throughout the territory of India.
Over the years several attempts were made to formulate a general secular law on adoption.
The attempts of Parliament in this direction did not bear fruit, all these went in vain on
account of a number of reasons. The history of all such efforts does not bring credit to the
secular credentials of the Indian polity.
The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it. The
Adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption
applicable to all communities other than the Muslim community, was opposed by the
Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt
Parsis from the bill. The National Adoption Bill, tabled twice in Parliament in the seventies,
has yet to enter the statute books. The history of attempt to bring in the concept of secular
adoption into our system of laws narrates a sad tale of inaction and action without
conviction on the part of the legislature.
The existing legislations for adoption or taking a child in custody in India are following:
The Hindu Adoptions and Maintenance Act (HAMA), 1956. This Act provides for adoption
of Hindu children by the adoptive parents belonging to Hinduism. This is not applicable to
other communities like Muslims, Christians and Parsis. They have to recourse to Guardians

14 | P a g e

and Wards Act, 1890, wherein they become guardians of children. But the child does not
have the status as it would have had, had it been born to its adoptive parents. One of
features of this Act is that no Hindu person can adopt a son or daughter, if they already
have a child of that sex. Often the intentions behind the law are good, but the methods
adopted fall short. The HAMA provides that there should be an age difference of 21 years
between the adoptive parents and the adopted child whenever they are of opposite sex. This
is intended to prevent sexual abuse.
3)

THE

GUARDIANS

AND

WARDS

ACT,

1956

Personal laws of Muslims, Christians, Parsis and Jews do not recognize complete adoption.
As non-Hindus do not have an enabling law to adopt a child legally, the people belonging
to these religions who are desirous of adopting a child can only take the child in
'guardianship' under the provisions of The Guardians and Wards Act, 1890. The statute
does not deal with adoption as such but mainly with guardianship. The process makes the
child a ward, not an adopted child. Under this law, when children turn 21 years of age, they
no longer remain wards and assume individual identities. They do not have an automatic
right of inheritance. Adoptive parents have to leave whatever they wish to bequeath to their
children through a will, which can be contested by any `blood' relative.
The aforesaid enactments remain silent about the orphan, abandoned and surrendered
children. There was no codified legislation dealing with the adoption of the children of
these categories. As a result, several misconceptions or irregularities appeared in respect of
the custody, guardianship or adoption of these types of children, which were prejudicial to
the interest of the children.
Considering all the aspects mentioned above laudable attempt were undertaken by the
legislature by the stipulations, which have been made in Chapter IV of the Juvenile Justice
(Care and Protection of Children) Act, 2000. This enactment shows that the legislature may
be found to have accepted the concept of secular adoption whereby without any reference
to the community or religious persuasions of the parents or the child concerned, a right
appears to have been granted to all citizens to adopt and all children to be adopted.
It is pertinent to mention here that there arises confusion as to the interpretation as well as
concept of adoption as because the expression Adoption has not been defined at all in the

15 | P a g e

enactments like HAMA or GAWA. Moreover, the legal status of the adopted child has not
declared to be equal to that of a biological legitimate child. Though at the initial stage the
Juvenile Justice (Care and Protection of Children) Act, 2000 did not contain these factors,
these are introduced in Juvenile Justice (Care and Protection of Children) Amendment Act,
2006. The concept of adoption has been well defined in Sec.2 (a) of the said Act, which is
as

follows:

Adoption means 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.
The Act introduced an expression child in need of care and protection and it has been
defined in Sec. 2 (d) of the Act. This definition covers what is meant by orphan, abandoned
and surrendered children.
II. C. OTHER STATUTES /AGENCIES / COMMITTEES FOR ADOPTION
All existing child care institutions housing orphan, abandoned and surrendered children are
required to register with the State Government and apply for recognition as Special
Adoption Agency(SAA) as per provisions of the JJ Act. After being recognized as SAA,
such agencies should register under CARINGS to be part of CARA network. Presently
there are 72 RIPA's which undertake both In-Coutry as well as Inter-Country Adoptions
and 254 LAPA's which undertake only In-Country Adoption.
1) Central Adoption Resource Agency (CARA)
CARA is an autonomous body and also ratified Hague Convention of 1993 and the United
Nation Declaration of the Rights of the Child adopted by the General Assembly of the
United Nations in 1989 on inter country adoption. Later Juvenile Justice (Care and
Protection of Children) Act, 2000 was passed for children in need of care and protection.
In-country Adoption of Indian children is governed by In-country Guidelines-2004 while
Inter-country Adoption procedure is governed by a set of Guidelines last issued on 14th
February2006. These Guidelines are a follow up of various directions given by the
Supreme Court of India in L.K. Pandey v. Union of India4 and other cases. In this case our
Apex court held that since there is no statutory enactment in our country providing for

16 | P a g e

adoption of a child by foreign parents or laying down the procedure which must be
followed in such a case, resort is had to the provisions of the Guardians and Wards Act,
1890 for the purpose of facilitating such adoption. These Guidelines are amended and
updated from time to time keeping in mind the welfare of such child. While CARA is
engaged in clearing inter-country adoption of Indian children, its principal aim is to
promote in-country adoption. In fact, CARA ensures that no Indian child is given for intercountry adoption without him/her having been considered by Indian families residing in
India. CARA also provides financial assistance to various NGOs and Government run
Homes to promote quality child care to such children and place them in domestic adoption.
2) Child Welfare Committee
Sec. 29 of the Juvenile Justice Act, 2000 provides for the Child Welfare Committee. The
Committee has the sole authority to declare the child in need of care and protection who are
orphan, abandoned or surrendered free for adoption.
CWC shall determine legal status of all orphans, abandoned and surrendered children.
Functions and powers of the Committee, procedure in relation to the Committee,
production of child before committee, procedure for inquiry, procedure related to orphan
and abandoned children and procedure related to surrendered children shall be governed as
laid down in the Juvenile Justice Amendment Act 2006 and its Rules. On clearance from
CWC that a particular child is free for adoption, there will be termination of parental
II.

D.

SECULAR LAWS FOR ADOPTION

In India, there is no secular law of adoption covering all the people. Although the India
government had attempted several times since independence to pass a uniform and secular
bill for the whole country, but the Muslims and a section of the Parsis have had strong
objections to the various bills introduced in Parliament. As result, Muslims, Christians and
Parsis have no adoption laws of their own and they have no adoption rights but only a
guardianship rights under the Guardians and Wards Act 1890 where the adopted child does
not get the inheritance and other rights.
Article 44 of the Constitution declares that the State shall Endeavour to secure for the
citizens a Uniform Civil Code throughout the territory of India. The Law Commission, in
its 153rd report, recommended that a uniform law be enacted to regulate adoptions, but

17 | P a g e

nothing seems to have happened in this regard. Over the years several attempts were made
to formulate a general secular law on adoption. The attempts of Parliament in this direction
did not bear fruit, all these went in vain on account of a number of reasons. Being a
signatory to United Nations Convention on Rights of the Child (UNCRC) and The Hague
Convention on Inter-country Adoption, India is obliged to enact appropriate legislation on
adoption, applicable to all societies and communities alike. So a Uniform Adoption Law in
India should be introduced, that definitely has to be appreciated.
III .INTER-COUNTRY ADOPTION
The concept of Inter-Country adoption is relatively a new concept. It did not find place in
the top priorities of the legislators. There was not and still is not a legislation exist which
primarily

provides

for

the

rules

regarding

Inter-Country

adoption.

Theres more than one way to build a family and adopting a child into your home and your
hearts is one of the most wonderful blessing. The family is the primary setting for childrens
development, and the importance of the early years of development for a persons adult life is
increasingly recognized. By virtue of ratification of the Convention on Rights of the child,
Govt. of India has recognized the childs right to a family especially within its own family
members and familial-cultural milieu. With Hague Convention on Inter-country Adoption
coming into force in India w.e.f. 1.10.2003, it has been obligatory for Central Adoption
Resource Agency to come out with Guidelines on Family Adoptions so that children in crisis
family situations are not deprived of a caring family. This guideline will be applicable for
PIOs and NRIs who are habitually residing abroad have intention to adopt their relatives
child from India.
Since family adoption has to deal with families of both sides, it is mandatory for both the
sides to understand the procedural requirements before initiating such proposal. The purpose
is to enable a child to get a loving and caring family within his/her clan group when such
placement is considered as best alternative in the given situation. Family adoption will be
allowed in exceptional situations where the child to be adopted has a special situation as a
result of parent/s death or adoption is thought up for certain situation benefiting families of
both side without compromising childs best interest.

18 | P a g e

Procedure followed for inter country adoption are:

Child is made legally free for adoption either a) by relinquishment deed from
biological parents. b) No legal claim certificate from child welfare committee

formed by

state after making legal enquiry. A Pre- adoption counselling for adoptive parents is done.
Then an application is filed at registrar office and registration is done. Along with this a
home study report is made in order to identify the child emotional and material needs. Then
arrangement is made to see the child by adoptive parents. And finally the child is taken for
medical check up.
A landmark case of Laxmikant Pandey vs. Union of India2 laid down few principles
governing the rules for Inter-Country adoption. The case was instituted on the basis of a
letter addressed to the court by a lawyer, Laxmikant Pandey alleging that social
organisations and voluntary agencies engaging in the work of offering Indian children to
foreign parents are indulged in malpractices. It was alleged that these adopted children were
not only exposed to long horrendous journey to distant foreign countries at the risk of their
life but they also ultimately become prostitutes and beggars. Supreme Court in this case
expressed its opinion and framed certain rules for Inter-Country adoption.
The Hon'ble Court asserted that, "while supporting Inter-Country adoption, it is necessary
to bear in mind that the primary object of giving the child in adoption being the welfare of
the people, great care has to be exercised in permitting the child to be given in adoption to
foreign parents, lest the child may be neglected or abandoned by the adoptive parents in the
foreign country or the adoptive parents may not be able provide to the child a life of moral
and material security or the child may be subjected to moral and sexual abuse or forced
labour or experimentation for medical or other research and may be placed in worse
situation than that in his own country ."
It further went on to give the prerequisites for foreign adoption. It stated that In the first
place, every application from a foreigner desiring to adopt a child must be sponsored by
social or child welfare agency recognised or licensed by the government of the country in
which the foreigner is a resident. No application by a foreigner for taking a child in
adoption should be entertained directly by any social welfare agency in India working in

Supra 2

19 | P a g e

the area of Inter-Country adoption or by any institution or centre or home to which children
are committed by the juvenile court."
The Supreme Court also insisted the age within which a child should be adopted in case of
Inter-Country adoption. If a child is to be given in Inter-Country adoption, it would be
desirable that it is given in such adoption before it completes the age of 3 years."
Such a ruling was delivered by the Supreme Court because it felt if a child is adopted by a
foreign parent before he/she attains the age of 3, he/she has more chances of assimilating to
the new environment and culture. Another important rule framed by the Court during the
course of judgement was- Since there is no statutory enactment in our country providing for
adoption of a child by foreign parents or laying down the procedures which must be
followed in such a case, resort had to be taken to the provisions of Guardian and Wards
Act, 1890 for the purpose of felicitating such adoption.
Following this judgement, the Indian courts gradually broadened the scope of adopting
child to other countries.
V.

REHABILITATION & SOCIAL REINTEGRATION FOR ORPHAN ABANDONED OR

SURRENDERED CHILDREN:

The chapter IV of the Act deals with rehabilitation and social re-integration of children.
The primary aim of rehabilitation and social reintegration is to help children in restoring
their dignity and self-worth and mainstream them through rehabilitation within the family
where possible, or otherwise, through alternative care programmers and long term
institutional care shall be of last resort.
Sec. 40 of the J.J. Act provides that the rehabilitation and social reintegration of a child
shall begin during the stay of the child in childrens home or special home, but as the
family is the best option to provide care and protection for children, adoption is the first
alternative for rehabilitation and social reintegration of orphan, abandoned or surrendered
children. Legislation/Guidelines/directives for adoption of orphan, abandoned or
surrendered

children:

The following legislation, guidelines or directives are to be complied with in respect of

adoption of orphan, abandoned or surrendered children:

20 | P a g e

 Guidelines issued by Central Adoption Resource Authority time to time based on

the judgment of the Supreme Court on inter-country adoption in Laxmi Kant
Pandey v. Union of India3 & others [W.P. (Crl.) No. 1171/1982] and subsequent
judgments.
Hague Convention on Inter-country adoption ratified by India in 2003.
Juvenile Justice (Care & Protection of Children) Act, 2000 and Central Model
Rules promulgated under this Act.
The primary aim of adoption is to provide a child who cant be cared for by his biological
parents with a permanent substitute family. The family of a child has the primary
responsibility to provide him care and protection. Orphan, abandoned or surrendered
children can be adopted for their rehabilitation through such mechanism as may be
prescribed. Such children may be given in adoption by a Court in keeping with the
provisions of several guidelines regarding adoption issued by the State Govt. /Central
Adoption Resource Authority and notified by the Central Govt. But the Court should be
satisfied with the investigation having carried out which are required for giving such
children in adoption.
For placement of the orphan, abandoned or surrendered children for adoption in
accordance with the said guidelines, the State Govt. shall recognize in each district one or
more institutions or voluntary organizations as specialized adoption agencies. The
Childrens Homes and institutions run by the State Govt. or voluntary organizations for
children in need of care and protection who are orphan, abandoned or surrendered, should
ensure that these children are declared free for adoption by the Committee (Child Welfare
Committee) and such cases shall be referred to the adoption agency of that district for
their placement in adoption.
According to Rule 33 (5) of the Central Rules under the said Act, the Court implies a
civil court, which has jurisdiction in matters of adoption and guardianship and may include
the court of District Judge, Family Court and City Civil Court.

AIR1984 SC469

21 | P a g e

But the provision of the said Rules empowering the Family court has been subjected to
several criticisms by judiciary. In the case of Manuel Theodore DSouza4 the Bombay
High Court also observed that the right to adopt being a fundamental right must be capable
of enforcement through the civil court as it falls within the ambit of Sec. 9 of Civil
Procedure Code. It was also opined that the District Court or the High Court has the
jurisdiction to deal with the question relating to adoption as this court normally deal with
the disputes regarding custody, guardianship etc. of children. It was also held that such
applications can be filed before the District Courts exercising powers under the Guardians
& Wards Act and such applications for adoption of the child by a guardian must be
reckoned as a miscellaneous application in the petition in guardianship.
Similar conclusion has been drawn by the Honble High Court of Kerala in the recent case
of Andrew Mendez & others v. State of Kerala. It minutely interpreted the expression
Court in J.J. Act as well as the jurisdiction of the Family Court as mentioned in the
Central Rules under J.J. Act and the Family Courts Act. As per Sec.7 (1) (g) of the Family
Courts Act, the Family Court has the powers/jurisdiction to deal with the question of
guardianship. So the question arises whether claim for adoption can be brought under any
sub-clauses (a) to (g) of Sec.7 (1) of the Family Courts Act so that the Family court must be
the court for the purpose of Sec.41 (6).
Similar type of question arose in the case of Vinod Krishnaan v. Missionaries of Charity5
where the Division Bench of Kerala High Court held that the Family Court cant be clothed
by the stipulations in Sec. 7(1) to deal with a claim for adoption U/s 9(4) of Hindu
Adoption & Maintenance Act. It is only the District court having the jurisdiction to
entertain such application. Following this observation the Kerala High Court in Andrew
Mendezs case opined that Sec 7(1) (g) is not sufficient to clothe the Family Court with the
jurisdiction to consider an application for adoption by reckoning the same as incidental to
guardianship and custody. Another important point was raised in this case, i.e., Sec. 7(2)
(b) of Family Courts Act declare that the Family court shall also have and exercise such
other jurisdiction as may be conferred on it by any other enactment. Though J.J. Act is an
enactment, it doesnt certainly states that Family Court shall be the court for the purpose of
Sec. 41(6). On the contrary, the Central Rules promulgated under section 68 of the J.J. Act
4
5

II (200) DMC 292]

[1997 (2) KLT 863]

22 | P a g e

confers such jurisdiction on Family Court, but it does not fall within the ambit of
enactment as explained by the High Court in the aforesaid case. Consequently it was
concluded by the Kerala High Court that the Family Court does not have jurisdiction to
entertain an application for adoption by a guardian under section 41 (6) of J.J. Act and it
cant be held to be the court under section 41(6). It is only the District Court, which can
have jurisdiction to entertain such application under section 41(6) of Juvenile Justice Act,
2000 read with Rule 33(5) of the Central Rules.
The enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its
subsequent amendment in 2006 is definitely a significant effort of the legislature towards
recognition of adoption of orphan, abandoned and surrendered children by people
irrespective of their religious status.
It cant be denied that it is a secular legislation only under which any person can adopt a
child of orphan, abandoned and surrendered child irrespective of his/her religion. It is more
children oriented unlike other legislations. But it may be mentioned at the same time that
some more factors need to be considered specifically by the legislature. As for example,
this Act stipulates adoption by any person irrespective of his/her marital status, but it does
not specify whether the consent of the other spouse is required to be obtained by the
adopting spouse in case adoption by a married couple.
This might create misconceptions among the Hindus as in Hindu Laws (HAMA) taking
consent of the wife by her husband is an essential criteria for adoption. Secondly, the
expression Court has not been specifically defined for the purpose of adoption under this
Act as a result of unwarranted mistakes/misconception arises frequently in filing the
application for adoption by the adoptive parents. Thirdly, the Act is silent about the criteria
for age difference between the adoptee and adoptive parents in case they are of opposite
sex. This is an essential factor for adoption, which should be considered seriously for the
purpose of preventing child abuse and trafficking. All these facts are obviously applicable
to all religions and therefore, it is necessary to specify them for the interest of the children.
We should never forget the thrust of the National Policy for the Welfare of Children (1974)
that The Nation's children are a supremely important asset. Their nurture and solicitude
are our responsibility.

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VI.

CHILD ADOPTION POLICIES IN INDIA

The Government of India is fully sensitized and committed to the rights and welfare of
children. The Constitution of India under Article 24- Chapter on Fundamental Rights of
the Citizens provides the right against exploitation of the children below 14 years. Article
45 of the Directive Principles of the State Policy in the Indian Constitution envisages for
free and compulsory education of children.
BASIC INDIAN POLICY
At the International level, India has ratified the convention on the Rights of Child and
the Hague Convention on inter- country adoption of children. At national level, India has
prepared a National Policy for children in 1974 under which Ministry of Social Justice
and Empowerment (now known as Ministry of Women and Child Development) has got
the mandate to enact laws regarding welfare of children. The Juvenile Justice (Care and
Protection of Children) Act 2000 is a landmark in this regard. This Act has incorporated
the provision of adoption of child as an alternative to institutional care.
Adoption provides a very important function in Indian society. India has long
tradition of child adoption. In olden days, it was restricted within the family and was
covered by social and religious practices. But with the changing times, adoption beyond
the contour of family has been institutionalized and legalized.
What Government of India and State Governments is providing necessary support and
guidance through its policies and programmes, the Non- Governmental Organizations
(NGOs) provide necessary delivery system for the process of adoption which is above
board and transparent.
Implementation of Policy -- Central Agency
To strengthen adoption rules and facilitate adoption without any hassles, Government of
India under advice of Supreme Court constituted a Central Agency- Central Adoption
Resource Agency [CARA] with New Delhi as base to set up guidelines for adoption time
to time safeguarding welfare and rights of children while granting adoption or
guardianship under Hindu Adoption and Maintenance Act 1956, Guardians and Wards
Act 1890 or Juvenile Justice Act of 2000.
Scrutiny Agency

24 | P a g e

To safeguard malpractices and deviations from prescribed guidelines for adoption notified
by Government of India, Supreme Court of India has appointed an independent NGO with
experience in child adoption The Indian Council of Social Welfare with head quarters
in Mumbai and branches in all state as Scrutiny Agency. This agency verifies all the
relevant documents and authenticity before orders are issued by Judicial Courts for the
formal adoption.
Guidelines for adoption
CARA has issued separate policy guidelines for inter- country and in- country adoptions.
The main policy adopted is placement agencies involved in adoption should strictly
follow and comply with the guidelines of CARA and register with respective state
governments. No Objection Certificate [NOC] from CARA is made mandatory in case of
all inter- country adoption, before placement agency process the application in
competent Judicial Courts.
To conclude the trust of national policy of India for welfare of children is to protect
abandoned and destitute children, goal is to find a family for as many orphan children as
possible and to safeguard their interest as visualized in the UN Convention on child
rights and Hague Convention on Inter country adoption ratified by India government.
The Best Interest of the Child is the guiding principle behind all adoption laws in India
and social awareness programmes has helped to change the attitude of society and
people towards adoption in India.
The nations children are supreme important asset. Their nurture and solitude are
responsibilities of nation. Childrens programmes should find a prominent part in
national plans for the development of human resources so that children grow up to
become robust citizens; physically fit, mentally alert and morally healthy endowed with
the skills and motivation needed by the society. Equal opportunities for development to
all children during the period of growth are the aim, as this will serve larger purposes of
reducing inequality and increasing social justice.

VII. ADOPTION LAWS IN INDIA: NEED FOR A CHANGE

In the early days, the practice of adoption was shrouded in secrecy, which was restricted in
the traditional family. The tradition at that time was that, childless couples adopt a child
with a view to ensure the continuity of tradition and to avoid alienation of property.

25 | P a g e

Professional intervention of child welfare agencies in the process of adoption that began in
the early seventies had changed the societal attitude and concept of adoption. Thereby
significant changes in the legal, social and practice levels of adoption programme with
systematization of the procedures to the best interest of the child, adoptive parents and the
birth parents had taken place. This has enhanced the rate of adoption and today, child
emerged as the fulcrum of the family and more and more couples are coming forward to
adopt a child as soon as it is known that it is not possible for them to have a biological
child.
Adoption in India has a flavour of antiquity. In India the change has just begun. Some
modifications in adoption laws through Juvenile Justice Act are a welcome step, the fact
however remains that the approach to adoption as a child care arrangement is not yet fully
developed. It calls for a multi pronged approach, changes in all related fields, a higher
priority covering all aspects followed by sincere implementation.
The HAMA provides that there should be an age difference of 21 years between the
adoptive parents and the adopted child whenever they are of opposite sex. This is intended
to prevent sexual abuse.
Personal laws of Muslims, Christians, Parsis and Jews do not recognize complete adoption.
As non-Hindus do not have an enabling law to adopt a child legally, the people belonging
to these religions who are desirous of adopting a child can only take the child in
'guardianship' under the provisions of The Guardians and Wards Act, 1890. The statute
does not deal with adoption as such but mainly with guardianship. The process makes the
child a ward, not an adopted child. Under this law, when children turn 21 years of age, they
no longer remain wards and assume individual identities. They do not have an automatic
right of inheritance. Adoptive parents have to leave whatever they wish to bequeath to their
children through a will, which can be contested by any `blood' relative.
The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to
minority and guardianship. As in the case of unmodified law, it has upheld the superior
right of father. It lays down that a child is a minor till the age of 18 years. Natural guardian
for both boys and unmarried girls is first the father and then the mother. Prior right of
mother is recognized only for the custody of children below five. In case of illegitimate

26 | P a g e

children, the mother has a better claim than the putative father. The act makes no
distinction between the person of the minor and his property and, therefore guardianship
implies control over both. The Act directs that in deciding the question of guardianship,
courts must take the welfare of child as the paramount consideration. Section 6 of the said
Act, provides about the natural guardians of a Hindu minor. Section 7 of the very Act
speaks about the natural guardianship of adopted son.
Section 7 of the Hindu Adoptions and Maintenance Act, prescribes the general capacity of a
Hindu male to take a son or a daughter in adoption if he is of sound mind and not minor.
Similarly, section 8 of the Act empowers a female Hindu to take a son or daughter in
adoption subject to the fulfillment of conditions prescribed in the Act. Section 10 speaks
about the persons who may be adopted. This section provides that a child male or female is
capable of being taken in adoption if he or she is a Hindu and not already been adopted.
From the above provisions, it is clear that a son or a daughter is having equal opportunity
for the purpose of adoption. It is also pertinent to mention that both male and female are
entitled to adopt a son or a daughter under the provision of the law. The aforesaid
enactments remain silent about the orphan, abandoned and surrendered children. There was
no codified legislation dealing with the adoption of the children of these categories.
Considering all the aspects mentioned above laudable attempt were undertaken by the
legislature by the stipulations, which have been made in Chapter IV of the Juvenile Justice
(Care and Protection of Children) Act, 2000.
It is pertinent to mention here that there arises confusion as to the interpretation as well as
concept of adoption as because the expression Adoption has not been defined at all in the
enactments like HAMA or GAWA. Moreover, the legal status of the adopted child has not
declared to be equal to that of a biological legitimate child. Though at the initial stage the
Juvenile Justice (Care and Protection of Children) Act, 2000 did not contain these factors,
these are introduced in Juvenile Justice (Care and Protection of Children) Amendment Act,
2006. There is hardly any awareness about a 2006 amendment to the Juvenile Justice Act
which allows non-Hindus to adopt.
The concept of adoption has been well defined in Sec.2 (aa) of the said Act. According to
the said Act and its amendment provisions are made for adoption of children who are

27 | P a g e

orphaned,

abandoned

or

surrendered,

it

also

allows adults, irrespective of their marital status and irrespective of the number of living
biological children they have, from any community to adopt and doesnt restrict it to
Hindus only. This enactment shows that the legislature may be found to have accepted the
concept of secular adoption whereby without any reference to the community or religious
persuasions of the parents or the child concerned, a right appears to have been granted to all
citizens to adopt and all children to be adopted.
In order to facilitate the implementation of the norms, principle and procedure relating to
adoption of children laid down in L.K. Pandey v. Union of India, 3 the Govt. of India had
issued several guidelines and subsequently converted the Central Adoption Resource
Agency (CARA) into an autonomous body and also ratified Hague Convention of 1993 and
the United Nation Declaration of the Rights of the Child adopted by the General Assembly
of the United Nations in 1989 on inter country adoption. Later Juvenile Justice (Care and
Protection of Children) Act, 2000 was passed for children in need of care and protection.
In-country Adoption of Indian children is governed by In-country Guidelines-2004 while
Inter-country Adoption procedure is governed by a set of Guidelines last issued on 14th
February2006. These Guidelines are a follow up of various directions given by the
Supreme Court of India in L.K. Pandey v. Union of India4 and other cases. In this case our
Apex court held that since there is no statutory enactment in our country providing for
adoption of a child by foreign parents or laying down the procedure which must be
followed in such a case, resort is had to the provisions of the Guardians and Wards Act,
1890 for the purpose of facilitating such adoption. These Guidelines are amended and
updated from time to time keeping in mind the welfare of such child. While CARA is
engaged in clearing inter-country adoption of Indian children, its principal aim is to
promote in-country adoption.
In fact, CARA ensures that no Indian child is given for inter-country adoption without
him/her having been considered by Indian families residing in India. CARA also provides
financial assistance to various NGOs and Government run Homes to promote quality child
care to such children and place them in domestic adoption.

VIII. DRAWBACKS OF EXISTING LAW

28 | P a g e

In my opinion, there are various drawbacks in the existing laws on adoption in India. Some
of the drawbacks are discussed below
Section 7 of the Hindu Minority and Guardianship Act, 1956 is an example of defective
legislative provision on the part of the legislature. Section 7 simply says that on adoption
the natural guardianship of the adopted son passes on from its natural parents to the
adoptive father and after him to the adoptive mother. This section in its nature and contents
has two inherent defects
i.

it fails to take notice of the cases of adoptive daughters, and

ii.

It also fails to consider the cases of adoption by women having no husband.

Consequently, this section serves no purpose at all. The position depicted in section 7 is
implicit in the provision of existing section 6 of the Act. Section 7 seems a futile
exercise without taking into account the provisions of the Hindu Adoption and
Maintenance Act, 1956, which was in the process of making when the Hindu Minority
and Guardianship Act, 1953 was passed.
It is clear that section 6 of the Hindu Minority and Guardianship Act is exhaustive in its
nature. It speaks about the natural guardians of a Hindu minor boy and girl, both legitimate
and illegitimate. It also takes into account the case of married (minor) girls. Though it is
silent about the adopted son and daughter, but it can be presumed without hesitation that it
applies to adopted sons and adopted daughters too. Section 7 is confined to the natural
guardianship of adopted son only. The reason of non consideration of the cases of adopted
daughters seems that the Hindu adoptions and Maintenance Act, which enabled Hindu men
and women, to adopt daughter was in making when the Hindu Minority and Guardianship
Act was passed. If the legislature would have been vigilant enough this provision could be
included in this Act or the coverage of section 6 could be extended to include clearly the
cases of adopted children.
The Central as well as various state governments have laid down guidelines and set up a
board to give certificate of recognition to adoption agencies, but the agencies concerned
flout all laws and regulations governing adoption. CARA, which is expected to promote
intra-country and inter-country adoption and monitor the integration of adopted children
with their new families. But the CARA has little to do with the adoption procedure and

29 | P a g e

follow up with the adoptive parents. Fake and shady agencies have managed to get
themselves registered with the CARA without too much trouble. The licenses of the shady
agencies have also been renewed by the CARA which has been a bad record with the police
about the dealing of children. It also appears that the adoption agencies in India bypassed
the law and regulation that forbid any unauthorized payment. Illegal payment in adoption
has become a common practice. It also appears that the adoption takes place in fake names
and with false documentation.
The Hindu Adoption and Maintenance Act is parent oriented with religious colour. Under
this Act, a man without a child can adopt either a stranger or a near agnate, such as
brothers son. But in practice, strangers are rarely adopted, the childless parent choose to
adopt a near agnate or his relatives son. It is mainly the poorer and lower caste Hindus who
prefer to go beyond their clan or group. In upper and middle class families, it is not mere
childlessness combined with the ownership of landed property that includes many male
Hindus to adopt a son.
The next drawback of our Hindu Law of adoption is that an illegitimate child cannot be
adopted. The child must be a Hindu. However, the word Hindu has been widely defined
and includes Jains, Buddhists and Sikhs or anyone who must be presumed to be Hindu
within the definition of Hindu in section 2 of the Hindu Adoption and Maintenance Act.
Illegitimacy is a major social problem in our society as millions of our children are
illegitimate. Adoption is in practice a common solution to a case of illegitimacy.
Another drawback of our Hindu law of adoption is that a Hindu spinster, a widow or a
divorcee can adopt a child for herself, but a wife cannot adopt a child even with the consent
of her husband.
According to section 8 and proviso of section 7, the Explanation mentions about the
capacity of a male or female Hindu to take in adoption. Male Hindu has the capacity to take
a son or daughter in adoption. Obtaining the consent of the wife or if there are more than
one living wife the consent of all of them is necessary for adoption, unless they or any of
them suffered any of the enumerated infirmities rendering such consent unnecessary. The
conscious and positive as well as deliberate omission to provide for a female Hindu seeking
or obtaining any such consent from a co or junior widow is a definite pointer to indicate

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that the legislative intent and determination was not to impose any such clog on the power
specifically conferred upon the female Hindu.6
To subject the exercise of power by the senior widow to adopt, conditioned upon the
consent of the junior widow where a Hindu male, died leaving behind two widows with no
progeny of his own, would render the exercise of power more cumbersome and
paradoxical, leaving at times, such exercise of power to adopt only next to impossibility.
The object underlying section 7 of the Hindu Adoption and Maintenance Act is to
completely abrogate the customary Hindu law under which a male Hindu can foist the
relationship of an adoptive mother upon his wife without her consent or even despite her
objections. After the Act, if the requisite consent of the wife is obtained, the wife is
regarded as the adoptive mother because the adoption so made by a male Hindu is not only
himself but by his wife as well. In case of a Hindu female, there is no such provision for her
taking an adoption during the husbands lifetime even if he consents. In other words, in the
case of an adoption by a Hindu female, there is no question of her making an adoption in
any contingency in which the adoption could be held not only for herself but to her husband
as well. Section 14 contains the deeming provisions so called, in the case of an adoption by
a male or female and this has to be read along with sections 7 and 8.
It is also important to notice that all the deeming provisions relating to affiliation in
section 14 of the Hindu Adoption and Maintenance Act are only in relation to living
persons and not to persons who were dead at the time of the adoption. Section 14(1) refers
only to the living wife who should be deemed to be the adoptive mother and it does not
include a wife who was dead at the time of the adoption. This shows that the deceased wife
is not to be regarded as the adoptive mother of the boy adopted. If in the case of a deceased
wife there is no such affiliation the position is a fortiori in the case of a deceased father.
Reading sections 8 and 14 of the said Act, together the widow has no capacity to make an
adoption to the deceased husband and such an adoption will not therefore be in accordance
with the provisions contained in chapter II of the said Act within the meaning of section 5.

G. Appaswami Chettiar v. Sarangapani Chettiar ; AIR 1978 SC 1051

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A comprehensive law on adoption which is the ideal solution seems so far away, so this is
better than nothing. Because of the lack of an Act so many parents who already have one
adopted child and who are excellent candidates to adopt another child of the same sex,
cannot do so. (HAMA does not allow Hindu parents to adopt more than one child of the
same sex.) Most of these children then go in for inter-country adoptions, often into families
where there are several children. Most important feature of the said Act 2000, and its
amendment 2006, is that it hides an adoption law in it with no reflection on how it is to be
implemented or its repercussions.
The section on adoption in the said Act has been written imprecisely and with little
attention to detail. The creation of a parallel new structure for adoption headed by Juvenile
Justice Boards in the various districts under Magistrates with "special knowledge and
training in child psychology", will replace the present system of family courts, which have
worked reasonably well. The said Act will require a substantial amount of funds and it may
not be always possible to find Magistrates with the desired background in child welfare,
resulting in posts remaining vacant. This will delay an already delay-prone system.
Among the most important changes that are made is dropping the 'inter-country adoption
prohibition clause'. Before the amendment the practice for adoption is that foreigners are
given the choice of adopting a child only after he/she has been rejected by Indian parents.
The amendment entails that foreign parents will be treated on par with Indians. This clause
will cut down red-tapism and hasten the adoption process.
Amending the act was not enough; there has to be more clarity about procedures and
information on how the law should be applied. There are other, grimmer facts about
adoptionlike no one, not even foreigners, want to adopt mentally challenged
children. Activists emphasise that there is no clarity on the provisions for adoption in the
Juvenile Justice (Care and Protection) Act.
There seem to be no rules or infrastructure in place nor is there clarity on related issues,
like if the law will apply to Muslims. As it stands, the amendment to the JJ Act defines
adoption. Actually this Act would apply to all Indians. It is not clear how this law would
override the provisions of other personal laws. The Muslim personal law, for instance, does
not permit adoption. The government cant try and plug loopholes in one Act by amending

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another. The adoption law in India needs an amendment to bring in greater uniformity for
all religions, but it needs to be done more systematically and not just by amending the JJ
Act.
The enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its
subsequent amendment in 2006 is definitely a significant effort of the legislature towards
recognition of adoption of orphan, abandoned and surrendered children by people
irrespective of their religious status. It cant be denied that it is a secular legislation only
under which any person can adopt a child being orphan, abandoned and surrendered child
irrespective of his/her religion. It is more children oriented unlike other legislations. But it
may be mentioned at the same time that some more factors need to be considered
specifically by the legislature. As for example, this Act stipulates adoption by any person
irrespective of his/her marital status, but it does not specify whether the consent of the other
spouse is required to be obtained by the adopting spouse in case adoption by a married
couple. This might create misconceptions among the Hindus as in Hindu Laws (HAMA)
taking consent of the wife by her husband is an essential criteria for adoption. Secondly, the
Act is silent about the criteria for age difference between the adoptee and adoptive parents
in case they are of opposite sex. This is an essential factor for adoption, which should be
considered seriously for the purpose of preventing child abuse and trafficking. All these
facts are obviously applicable to all religions and therefore, it is necessary to specify them
for the interest of the children.
Getting children into the adoption stream is one of the key factors that influence the process
of adoption in India. Only relinquished children come directly under the care and protection
of the Agency. The agency receives its inmates, abandoned or committed by the concerned
court in addition to those who are directed by the Child Welfare Committee or Juvenile
Justice Board.

IX.

SUGGESTIONS AND RECOMMENDATIONS

From the point of view of the researcher there are some suggestions have been given below
which may be implemented at the legislative and administrative level, which would make
adoption more effective in India

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Section 7, as it appears on the statute, reflects the legislative defect in draftsman ship. It
serves no purpose. It needs to be amended. The cases of natural guardianship of adopted
sons and daughters adopted by a Hindu male or by a Hindu female (having no husband) can
be covered by inserting two new clauses, just after clause (a) of section 6 of the Hindu
Minority and Guardianship Act, namely
(a) i) in the case of an adopted son or daughter by a Hindu male the adoptive Father
and after him, the adoptive mother.
(a) ii) in the case of an adopted son or daughter by a Hindu female (having no
husband) the adoptive mother.
The adoption charges and donations must be fixed. The prescribed fee for an inter-country
placement is obviously higher than an internal one. . Many Indian agencies apparently have
tie up with agencies abroad and collect huge sums as gifts and donations that go
unaccounted. Hence, adoption charges must be prescribed in Rules and appropriate
authorities must ensure that mal-practices are not taking place.
Usually the Child Study report (CSR) is prepared once the child is free for adoption. The
CSR is obviously prepared by the social worker of the agency who need not be an
experienced person. Hence it is to be submitted that the CSR must be prepared and signed
by a senior staff of the organization that should be held personally responsible for the
report.
After legal adoption, there should be statutory provisions in law for monitoring and filing
progress reports on the well-being of respective children. In situations that are detrimental
to the interests of the child in question, there should be provisions to initiate appropriate
action for the best interest of the child. The Child Welfare Committee of the concerned
district may be empowered to do the needful.
As per the provisions of Hindu Adoption and Maintenance Act, adoption is irrevocable and
confers full status of a biological child, including the right to inherit.Parents cannot adopt a
child of a particular sex, if they already have a biological or adopted child of the same sex.
According to Section 5(1) of HAMA, if adoption by a Hindu is not in accordance with its

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provisions, the same shall be treated as void. Hence, for Hindus, Juvenile Justice Act
cannot be of any use in the matter of adoption.
In order to promote, implement, supervise and monitor the non-institutional programmes
including adoption, foster care and sponsorship at State level, a State level Adoption
Advisory Committee shall be constituted in every State .Powers and functions of these
committees should be clearly mentioned. At least fifty percent of the membership of the
Committee shall necessarily be women of unblemished social image.
With the passing of the Hindu Succession Act, 1956, which treats sons and daughters
equally in the matters of succession. So the law of adoption among Hindus should be
simplified. There is no longer any justification for allowing a husband to prevent his wife
from taking a child in adoption after his death. Now after passing of the said Act, the
adoption made by a Hindu widow will be in her own right. No person need be divested of
any property which has vested in him by reason only of the fact that subsequent to such
vesting an adoption has been made. This rule of divesting has been the case of many a
ruinous litigation.
In India, there is no secular law of adoption covering all the people. Although the India
government had attempted several times since independence to pass a uniform and secular
bill for the whole country, but the Muslims and a section of the Parsis have had strong
objections to the various bills introduced in Parliament. As result, Muslims, Christians and
Parsis have no adoption laws of their own and they have no adoption rights but only a
guardianship rights under the Guardians and Wards Act 1890 where the adopted child does
not get the inheritance and other rights.
Article 44 of the Constitution declares that the State shall Endeavour to secure for the
citizens a Uniform Civil Code throughout the territory of India. The Law Commission, in
its 153rd report, recommended that a uniform law be enacted to regulate adoptions, but
nothing seems to have happened in this regard. Over the years several attempts were made
to formulate a general secular law on adoption. The attempts of Parliament in this direction
did not bear fruit, all these went in vain on account of a number of reasons. Being a
signatory to United Nations Convention on Rights of the Child (UNCRC) and The Hague
Convention on Inter-country Adoption, India is obliged to enact appropriate legislation on

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adoption, applicable to all societies and communities alike. So a Uniform Adoption Law in
India should be introduced, that definitely has to be appreciated.

X.

CONCLUSION

This project is a comprehensive and exhaustive research on the topic of Adoption laws in
India: review and recommendation needed. Adoption has always been considered a
wonderful opportunity to provide the child with home and the parents a child. It offers an
excellent alternative to institutional care for an abandoned, destitute or neglected child in an
atmosphere of happiness, love and understanding which only a family can provide. This
project consists of 10 chapters which gives an exhaustive analysis of the topic of Adoption.
This project gives the comprehensive study of the laws relevant to adoption. The existing
rules, regulations, statutes, case laws and changes that are need of the time.
Adoption as a legal concept was available only among the members of the Hindu
community except where custom permits such adoption for any section of the polity. Only
Hindus were allowed to legally adopt the children and the other communities could only act
as legal guardians of the children. Adoption is the transplantation of a son from the family
in which he is born, to another family where he is given by the natural parents by way of
gift. The adopted son is then taken as being born in the new family and acquires rights,
duties and status there only, and his tie with the old family comes to an end. The concept of
adoption is concerned with Hindus only. Currently, the adoption under Hindu Law is
governed by The Hindu Adoption and Maintenance Act, 1956.The Hindu Adoption and
Maintenance Act, 1956 extends to only the Hindus.
The Hindu Adoptions and Maintenance Act (HAMA), 1956, provides for adoption of
Hindu children by the adoptive parents belonging to Hinduism. This is not applicable to
other communities like Muslims, Christians and Parsi. They have to recourse to Guardians
and Wards Act, 1890.
In J.J. Act, 2000 say that the primary aim of adoption is to provide a child who cant be
cared for by his biological parents with a permanent substitute family. The family of a child
has the primary responsibility to provide him care and protection. Orphan, abandoned or
surrendered children can be adopted for their rehabilitation through such mechanism as

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may be prescribed. in J.J. Act as well as the jurisdiction of the Family Court as mentioned
in the Central Rules under J.J. Act and the Family Courts Act.
CARA is an autonomous body and also ratified Hague Convention of 1993 and the United
Nation Declaration of the Rights of the Child adopted by the General Assembly of the
United Nations in 1989 on inter country adoption. Later Juvenile Justice (Care and
Protection of Children) Act, 2000 was passed for children in need of care and protection.
Juvenile Justice Act, 2000 provides for the Child Welfare Committee. This Committee has
the sole authority to declare the child in need of care and protection who are orphan,
abandoned or surrendered free for adoption.
Inter-Country adoption is relatively a new concept. It did not find place in the top priorities
of the legislators. There was not and still is not a legislation exist which primarily Adoption
in India has a flavour of antiquity. All over the world the concept of adoption has
evolved and has become child centric. In India the change has just begun. Some
modifications in adoption laws through Juvenile Justice Act are a welcome step, the fact
however remains that the approach to adoption as a child care arrangement is not yet fully
developed provides for the rules regarding Inter-Country adoption.

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BIBLIOGRAPHY
STATUTES:
1. The Hindu Adoptions and Maintenance Act (HAMA), 1956
2. The Guardians and Wards Act 1890.
3. The Juvenile Justice (Care and Protection of Children) Act, 2000
4. The Juvenile Justice Care and Protection of Children Amendment Act, 2006
5. The Central Model Rules under Juvenile Justice Act

GUIDELINES:
1. Guidelines issued by Central Adoption Resource Authority
2. A Report on International Meet on Adoption- December 2003
3. Guidelines for Adoption from India 2006- CARA
4. The Juvenile Justice Act 2000
5. UN Convention on the Rights of Child (CRC)
6. Hague Convention

CASE LAWS:
(i) Manuel Theodore DSouza & Anr.7Bombay High Court (Justice Rebello)
(ii) Andrew Mendez & others v. State of Kerala8 (judgment by Kerala High Court
pronounced on 19.02.2008)
(iii) Vinod Krishnaan v. Missionaries of Charity9
iv) G. Appaswami Chettiar v. Sarangapani Chettiar10
v)Laxmi Kant Pandey v. Union of India11 & others [W.P. (Crl.) No. 1171/1982
vi) AIR 1984 SC 469
vii) AIR 1984 SC 469
viii) Atluri Brahmanandam (D) Thr. Lrs. vs Anne Sai Bapuji

II (2000) DMC 292

Crl. MC. No. 2271 of 2007
9
1997 (2) KLT 863
10
1997 (2) KLT 863
11
AIR1984 SC469
8

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OTHER MATERIALS:

1) 1st International Conference on Inter- country Adoption organized by Child NGO

Federation.
2) Paper presented by A.S. Shenoy Chair, International Relations Committee,

Indian

Council of Social Welfare, Mumbai.

WEBSITE MATERIALS:

1) http://www.scjudgments.com/search/caselaw
2)http://www.adoption%20docxs/guidelines%20for%20family%20adoption%20of.htm
3) www.adoptionindia.nic.in

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