ADOPTION OF CHILD IN INDIA WITH SPECIAL REFERENCE TO HINDUS

:

INTRODUCTION

“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.
The dictionary meaning of the term „adoption‟ is the act of taking and rearing of the child of
other‟s parents as one‟s own child. Attitudes and laws regarding adoption vary greatly.
Adopting a child in India a few decades back was something that couldn‟t even be imagined.
After all, it was a question of acquiring a right to nourish and cherish the fruit grown by
somebody else and our society did not permit any relation which wasn‟t out of blood. But
times have changed and we have seen a paradigm shift in people‟ attitude towards raising a
child. Kudos to some of the daring parents who started the trend and went on with it in spite
of facing a strong opposition by the society.
Legally speaking, except for adoption by Hindus, Indian law has no provision for adoption.
Children are placed under guardianship of adopting parents to exit the country, and adoption
must take place in the parents‟ home country. But the more important aspect is whether we as
a society have accepted adoption or not! Well, the answers can be contemplated in various
ways. To a section of our society, it has been received as good news and is practiced by many
people who aren‟t blessed biologically by the almighty. Perhaps, some people are taking this
option otherwise too. It is for this reason that adoption agencies have become a good business
venture and is flourishing in the urban parts of India. Encouragement by friends and family is
also a factor in inclining a couple to take this option of raising a child that does not have their
genes. But such is not the case in majority sections of our country. Some of us still think that
children are a miracle of god and if somebody has been deprived of it biologically, he has no
right to acquire it otherwise. It is even condemned as a sin in some of the societies and is
considered to be equivalent to snatching or stealing the property of somebody else. Only
more grave! On the other side of the coin, sometimes people are also hesitant in taking this
step as they are afraid to swim against the tide.



TRACES OF CHILD ADOPTION AS OF ANCIENT TIMES IN INDIA:

In early 17th Century Dattaka-mīmāmsā
1
by Nanda-Pandita was considered to be the
classical work on the topic of Adoption and subsequently used by the British authorities as
Hindu law. Later it was translated by Sutherland in 1821. Another renowned work Dattaka-
chandrika is attributed to Kuvera.
The main points, according to the Dattaka-Chandrika, are as follows: there are two motives in
adopting a son; viz.
(i) to perform obsequial rites is honour of the adoptive father and his ancestors,
(ii) to be the successor of the adoptive father.
Any sonless man may adopt a son; 'sonless' implies the absence of son, grandson and great-
grandson. Except for a Sudra, one cannot adopt a daughter's son or a sister's son. A person's
single son cannot be given in adoption. A woman cannot give away a son without the
permission of her living husband. If the husband is dead, she can do so in the absence of
prohibition by the husband. An adopted son is placed on equal footing with a natural son. In
the Commentaries and Digests, while the father‟s power of giving in adoption is universally
recognized, the same power is denied or doubted to the mother. The learned writer of the
Dattaka Minansa quotes the following text of Saunaka,
“By one having an only son the gift of a son should not be made; by one having many Sons
the gift of a son should anxiously be made, and comments since the masculine gender is used
in the compound word „by one having many Sons‟ the gift of a son, by a woman is
prohibited
2

But on the basis of the text of Vasishtha except with the assent of her husband he admits that
the mother can give her child in adoption with the assent of her husband curiously enough,
Nand Pandit denies the power of taking in adoption to a widow, but gives the power of giving
in adoption to a widow and maintains that in such cases assent must be presumed in as much
as Vedic instances indicate the legality of such gifts and in as much as several texts of sages
recognise independent power of the mother to give in adoption.



1
Sanskrit Text of Nanda Pandit's Dattaka Mimansa and its English translation; "Law,
Liberty and Social Justice" (Asia Publications)
2
In Hindu mythology he is one of the Saptarishis (Seven Great Sages Rishi)
Then, referring to text to Manu
3
, Baudhayana
4
, Yajnavalkaya and Vasistha he laid down the
following three propositions:
(i) The competency of both parents united is the principal;
(ii) That of the father alone independently of the mother is the mediocre, and
(iii)That of the mother, depending as it does on the assent of her husband, is an inferior
alternative.
Indian culture has its distinctive paradoxes. Indian mythology is full of stories where babies
were born in one place and brought up elsewhere by non parents. The tenets of Hindu Law
clearly state that 12 kinds of sons were recognized and one of them was the Dattaka son, i.e, a
son whom his father or mother gives as a son affectionately in a time of distress to one who is
of the same caste. Some of the prominent examples are Goddess Sita from Ramayana and
Lord Krishna from Mahabharata. Other characters from those days are Daan Veer Karan and
Shakuntala. These characters and admired even defied within the same tradition, childless
women are some time treated with contempt or petty and denied certain ritual roles,
especially in the upper caste groups. A tress memory of this attitude still lingers in the
collective unconscious of our people. It is often quoted as a narrative in which there is total
acceptance of the notion that an adoptive mother can love and care for non offsprings also
establishes the reciprocation of the love by the child. The fact that Krishna is referred as
Yoshada Nandan appears very crucial to the notion of adoption and entitlement
5
.

INDIAN LEGAL POSITION:
The Constitution of India gives paramount consideration to the welfare of the children.
Clause (3) of Article 15 enables the State to make special provisions for children. Article 23
prohibits the traffic in human beings and forced labour. Article 24 provides that no child
below the age of 14 yrs shall be employed to work in any factory or mine or engaged in any
other hazardous employment. Clause (e) and (f) of Article 39 provide that the State shall
direct its policy towards securing, inter alia, that the tender age of children is not abused, that
children are not forced economic necessity to enter avocations unsuited to their age and

3
Manu is a title accorded to the progenitor of mankind, and also the very first king to
rule this earth, who saved mankind from the universal flood. He was absolutely honest
which was why he was initially known as "Satyavrata", (One with the oath of truth)

4
Baudhayana Dharma Shastra: (Sanskrit) A book of laws associated with the Krishna
Yajur Veda and governing studentship, marriage, household rituals, civil law, etc. It is
followed by brahmins of Southwest India.

5
Vinita Bhargava, Adoption in India, 2005, Sage Publications
strength and that they are given facility to develop in a healthy manner and in conditions of
freedom and dignity and childhood and youth are protected against exploitation and against
moral and material abandonment. As far as the concept of intercountry adoption is concerned,
there is concrete legislation present in India. In fact before the Laxmikant Pandey v. Union
of India
6
, it did not even have any guidelines regarding it. In the aforementioned case, the
prerequisites for foreign adoption were laid down with the help of various international
guidelines and subject to Indian culture framed the rules thereof. However, the legislative
intent to enact a law regarding the same has been there since a long time. The adoption of
Children Bill, 1972 was introduced in the Rajya Sabha sometime in 1972 but it was
subsequently dropped, presumably because of the opposition of the Muslims stemming from
the fact that it was intended to provide for a uniform law of adoption applicable to all
communities including the Muslims. In view of the rather strong sentiments expressed by the
members of the Muslim Community and with a view not to offend their religious
susceptibilities, the Adoption of Children Bill, 1980 which was introduced in the Lok Sabha
eight years later on 16th December, 1980, contained an express provision that it shall not be
applicable to Muslims. The Adoption of Children Bill 1980 has unfortunately not yet been
enacted into law but it would be useful to notice some of the relevant provisions of this Bill in
so far as they indicate what principles and norms the Central Government regarded as
necessary to be observed for securing the welfare of children sought to be given in adoption
to foreign parents and what procedural safeguards the Central Government thought, were
essential for securing this end. Clauses 23 and 24 of the Adoption of Children Bill, 1980 dealt
with the problem of adoption of Indian children by parents domiciled abroad and, in so far as
material, they provided as follows:
23 (1) Except under the authority of an order under Section 24, it shall not be lawful for any
person to take or send out of India a child who is a citizen of India to any place outside India
with a view to the adoption of the child by any person.
(2) Any person who takes or sends a child out of India to any place outside India in
contravention of Subsection (1) or makes or takes part in any arrangements for transferring
the care and custody of a child to any person for that purpose shall be punishable with
imprisonment for a term which may extend to six months or with fine, or with both. (24) (1)
If upon an application made by a person who is not domiciled in India, the district court is
satisfied that the applicant intends to adopt a child under the law of or within the country in

6
[AIR1984 SC469]
which he is domiciled, and for that purpose desires to remove the child from India either
immediately or after an interval, the court may make an order (in this section referred to as a
provisional adoption order) authorising the applicant to remove the child for the purpose
aforesaid and giving to the applicant the care and custody of the child pending his adoption as
aforesaid :
Provided that no application shall be entertained unless it is accompanied by a certificate by
the Central Government to the effect that-
(i) the applicant is in its opinion a fit person to adopt the child;
(ii) the welfare and interests of the child shall be safeguarded under the law of the country of
domicile of the applicant;
(iii) the applicant has made proper provision by way of deposit or bond or otherwise in
accordance with the rules made under this Act to enable the child to be repatriated to India,
should it become necessary for any reason.
(2) The provisions of this Act relating to an adoption order shall, as far as may be, apply in
relation to a provisional adoption order made under this section. These provisions in the
Adoption of Children Bill, 1980 have been borne in mind by the
Supreme Court while formulating the guidelines which must be observed in permitting an
Indian child to be given in adoption to foreign parents.

JUDICIAL INTERPRETATION: INDIAN CASE LAWS
The Hindu Marriage Act, 1954 applies only to the Hindus. There is no law governing the
adoption by Christians, Parsis or Muslims, nor is there any statutory provisions providing for
adoption of a child by foreigners living abroad.

Re Rasiklal Chaganlal Mehta
7
: The inadequacy of the law of adoption to address the issue
of Intercountry adoption was highlighted by the Gujarat High Court in Re Rasiklal Chaganlal
Mehta. It is common knowledge that such adoptions are on increase. While it is a welcome
trend that poor and needy children get an opportunity to get affluent families and homes, it
cannot be denied that such adoptions have also opened opportunities for unscrupulous
agencies to commercialize the practice, and abuse and exploitation of children is not known.
Fact of the case: In Rasiklal, a German couple wished to adopt a girl from an orphanage at
Rajkot, and take her to Germany with them.

7
AIR 1982 Guj 193
Issue: In the absence of any statutory provision under which a foreigner could adopt an
Indian child, the applicants tried to explore the provision under S.9(4) of the Hindu
Adoptions and Maintenance act, 1954(HAMA).12 In order to overcome the hurdle, which
required that the adopter under the act has to be Hindu, they even adopted Hinduism. They
had to shuttle between the passport office and the courts and ultimately had to file another
application under the GWA, 1890.
Judgement: After detailed consideration of all aspects of such adoption, the Division bench
of the High Court came out with various guidelines, e.g., in any case involving Intercountry
adoption, a notice should be compulsorily issued to the concerned welfare agency; there
should be a provision in the adoption order providing for periodical report pertaining to the
maintenance and well-being of the child in the hands of the adoptive parents, the court must
ensure that the adoption is legally valid under the laws of both the countries and that the child
should be able to immigrate to that country and also obtain the nationality of the parents.

Lakshmi Kant v. Union of India: In Lakshmi Kant v. Union of India, the Supreme Court
laid down the normative and procedural safeguards in regard to foreign Intercountry
adoptions.

DEVELOPMENT OF CODIFY LAW: PRE CONDITIONS FOR ADOPTION:

Under Indian law there is no specific law for child adoption but due to judicial activism there
are lot of cases which have set precedents for the contiguous issues and other complexities in
child adoption. Like under, Andhya alias Supriya Kulkarni & another v. The Union of
India & another
8
, they have questioned the validity thereof on the ground of violation of
Articles 14 and 21 of the Constitution of India. The Hindu Adoption & Maintenance Act,
1956 - Sections 11(i) and (ii) provisions read thus:
"In every adoption, the following conditions must be complied with –
(i) 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 (whether by legitimate blood relationship or
by adoption),



8
AIR 1998 Bom 228

(ii) 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 (whether by legitimate blood
relationship or by adoption) living at the time of adoption."
Thus, the impugned provisions injunct a person from having second son or daughter by
adoption. The main challenge put forth is that the Right to Life under Article 21 as explored
through various judicial pronouncements has numerous dimensions. Life with human dignity
is one such. The right to have size of a family according to one's own choice is
comprehended within the concept of human dignity. Since the impugned provisions prevent
such right, they are violative of the Constitutional guarantee. Ancient Hindu law alone
rendered recognition therefore, that too was limited to as male child by an issueless parent.
During one's lifetime, there could not be adoption of another male child. Adoption of a
female child was not at all recognized. Predominant mythological design was to have a son,
even by adoption, to perform last rites so that deceased could avail Moksha i.e. Eternal Bliss
and also to continue the generation of adoptive parent.
In some part of the country, the dancing girl could adopt a female child. This was more a
customary and perhaps with a view to perpetuate the traditional avocation of dancing. This
could not, however, be a part of Hindu law. The Orissa High Court in Krushna Kahali v.
Narana Khali
9
, held such custom as invalid.
Hindu Adoptions & Maintenance Act, 1956, herein after written as HAMA, codified the
practices as prevailing under Ancient Hindu in relation to adoption. By way of an
amendment, the Act incorporated a significant feature of adoption of a female child which
was unknown to the Ancient law. This being the personal law, the adoption was confined by
and to Hindu parents and that too of a Hindu child.
The HAMA abrogates all pre-Act customs and usages pertaining to adoption except in two
areas, where custom is preserved:
(i) A married child can be adopted, if custom permits such an adoption,
(ii) A child of fifteen years or above can be adopted if custom permits such an adoption.
If in the natural family some property was vested in the child before adoption, that will
remain in him and he cannot be divested of it just because he has gone out to another family
of adoption Further, the child retains „sapinda‟ relationship and degrees of prohibited
relationship in his natural family for the purpose of marriage
10
. The Hindu Adoptions &

9
AIR 1991 Ori 134
10
Legalpundits International Services
Maintenance Act, 1956, amending Act, 45 of 1962 brought a revolution. Amended sections
which threw light upon vital issues were as follows:
i. To provide adoption and congenial home for an abandoned child.
ii. To authorize manage of Fondling or Remand Homes to give abandoned children in
adoption, with the permission of the Court.
iii. To include a child, legitimate or illegitimate, who has been abandoned by both of his
parents or whose parentage is not known, but who, in either case is brought up as Hindu to be
a Hindu by religion.
Indian Law as far as child adoption is concerned is religion-specific in, although it is a very
conservative approach from the law point of view. It toughened practices that were unjust to
children and hindered the formation of a Uniform Civil Code.
According to Article 44 of the Constitution of India:
“The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the
territory of India
11
.”
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 in action and
action without conviction on the part of the legislature.

THE HINDU ADOPTION AND MAINTENANCE ACT, 1956:

The Supreme Court in Ghisalal vs Dhapubai (D) By Lrs. has examined the provisions of the
Hindu Adoption and Maintenance Act relating to adoption. The Court has examined various
precedents on the subject and has inter alia held as under;

11
Bare Act of Constitutional of India by Universal Publications
For deciding the question whether the adoption of Ghisalal by Gopalji was valid, it will be
useful to notice the relevant provisions of the 1956 Act. The same read as under:
Section 6 of HAMA 1956 provides “Requisites of a valid adoption
12
” - No adoption shall be
valid unless -
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
Section 7 of HAMA provides “Capacity of a male Hindu to take in adoption
13
” –
Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a
daughter in adoption: Provided that, if he has a wife living, he shall not adopt except with the
consent of his wife unless the 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.
Explanation. - 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 any one of them is unnecessary for any of
the reasons specified in the preceding proviso.
Section 8 of HAMA provides “Capacity of a female Hindu to take in adoption
14
” – Any
female Hindu -
(a) who is of sound mind, (b) who is not a minor, and (c) 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.
Section 12 of HAMA provides “Effects of adoption
15
” - An adopted child shall be deemed to
be the child of his or her adoptive father or mother for all purposes with effect from the date
of the adoption and from such date all the ties of the child in the family of his or her birth
shall be deemed to be severed and replaced by those created by the adoption in the adoptive
family: Provided that -
(a) the child cannot marry any person whom he or she could not have married if he or she
had continued in the family of his or her birth;

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13
Bare Act of Hindu Law by Universal publications
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Bare Act of Hindu Law by Universal publications
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(b) any property which vested in the adopted child before the adoption shall continue to
vest in such person subject to the obligations, if any, attaching to the ownership of
such property, including the obligation to maintain relatives in the family of his or her
birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her
before the adoption. Presumption as to registered documents relating to adoption.
Whenever any document registered under any law for the time being in force is
produced before any Court purporting to record an adoption made and is signed by the
person giving and the person taking the child in adoption, the Court shall presume that
the adoption has been made in compliance with the provisions of this Act unless and
until it is disproved."
Section 6 reproduced above 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. Section 7 lays down that any male Hindu who is of sound
mind and is not minor has the capacity to take a so nor a daughter in adoption.
This is subject to the rider enshrined in the proviso which lays down that if the male Hindu
has a wife living then he shall not adopt except with the consent of his wife unless she is
incapacitated to give the consent by reason of her having completely and finally renounced
the world or her having ceased to be a Hindu or she has been declared by a court of
competent jurisdiction to be of unsound mind. The explanation appended to Section 7 lays
down that if a person has more than one wife living at the time of adoption, then the consent
of all the wives is sine qua non for a valid adoption unless either of them suffers from any of
the disabilities specified in the proviso to Section 7. Section 8 enumerates the conditions,
which must be satisfied for adoption by a female Hindu. Section 12 deals with effects of
adoption.
It 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. 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 lays 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.
In Indian society, a male spouse enjoyed the position of dominance for centuries together.
This was particularly so in Hindu families. Under the old Hindu Law, a Hindu male had an
absolute right to adopt a male child and his wife did not have the locus to question his right or
to object to the adoption.
A wife could adopt a son to her husband but she could not do so during her husband's lifetime
without his express consent. After his death, she could adopt a son to him, in certain parts of
India, only if he had expressly authorized her to do so. In other parts of India, she could adopt
without such authority. However, in no case a wife or a widow could adopt a son to herself.
An adoption by a woman married or unmarried of a son to herself was invalid and conferred
no legal rights upon the adopted person. A daughter could not be adopted by a male or a
female Hindu. The physical act of giving was a prime necessity of the ceremonial
requirements relating to adoption. As to datta homam, that is, oblations of clarified butter to
fire, the law was not finally settled and there was divergence of judicial opinion.
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. 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.
A female Hindu who is unmarried or a widow or a divorcee can also adopt a son to herself, in
her own right, provided she has no Hindu daughter or son's daughter living at the time of
adoption [Sections 8, 11(1) and 11(2)].However, if she is married, a female Hindu cannot
adopt a son or a daughter during the lifetime of her husband unless the husband is of unsound
mind or has renounced the world. By incorporating the requirement of wife's consent in the
proviso to Section 7 and by conferring independent right upon a female Hindu to adopt a
child, Parliament has tried to achieve one of the facets of the goal of equality enshrined in the
Preamble and reflected in Article 14 read with Article 15 of the Constitution.
The term `consent' used in the proviso to Section 7 and the explanation appended thereto has
not been defined in the Act. Therefore, while interpreting these provisions, the Court shall
have to keep in view the legal position obtaining before enactment of the 1956 Act, the object
of the new legislation and apply the rule of purposive interpretation and if that is done, it
would be reasonable to say that the consent of wife envisaged in the proviso to Section 7
should either be in writing or reflected by an affirmative/positive act voluntarily and willingly
done by her. If the adoption by a Hindu male becomes subject matter of challenge before the
Court, the party supporting the adoption has to adduce evidence to prove that the same was
done with the consent of his wife. This can be done either by producing document evidencing
her consent in writing or by leading evidence to show that wife had actively participated in
the ceremonies of adoption with an affirmative mindset to support the action of the husband
to take a son or a daughter in adoption.
The presence of wife as a spectator in the assembly of people who gather at the place where
the ceremonies of adoption are performed cannot be treated as her consent. In other words,
the Court cannot presume the consent of wife simply because she was present at the time of
adoption. The wife's silence or lack of protest on her part also cannot give rise to an inference
that she had consented to the adoption.

THE GUARDIANS AND WARDS ACT 1890:
Under this act, people belonging to the communities such as Muslim, Christians, Parsis and
Jews and who wish to adopt can only take the guardianship of the child. The statute does not
deal with the adoption but it mainly deals with guardianship. The process makes the child a
ward, not as adopted child. This act confers only guardian child relationship. This
relationship exists until child completes 21 years of age.

JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000:
This Juvenile Justice Act Provides for the adoption of abandoned and abused children by
people of all communities. Sec 41 (3) of the JJA states that Juvenile justice boards shall be
empowered to give children in adoption implying that adoptive powers are not automatic and
state government must empower their respective justice board but no state govt. has
notified empowerment of its JJBs on adoption matters.
Juvenile Justice Amendment Act 2006:
Juvenile Justice Amendment act allows non Hindus to adopt but there is hardly any
awareness about 2006 amendment to Juvenile Justice Act. Secondly, amending the act was
not enough there has to be more clarity about procedures and information how the law should
be applied. Instead of getting approval of higher courts like district court and high courts (in
case of the inter country adoption. Adoption should be done locally by child welfare
committees and juvenile justice boards. There are no rules or infrastructure in place nor is
there clarity on related issues like if the law will apply to Muslims.
Juvenile Justice Amendment act will apply to all Indians but it is not clear how this law
would override the provisions of other personal laws.

ADOPTION LAWS- NEED TO BE CHANGED:

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. 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.
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.

There are some drawbacks related to adoption in Hindus which need to be changed to have a
better and lively atmosphere. They are:

1. 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 brother‟s
son. But in practice, strangers are rarely adopted, the childless parent choose to adopt a near
agnate or his relative‟s 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.
2. 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.
3. 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.
4. According to section 8 and proviso to section 7 with the Explanation mention 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 that
the legislative intent and determination was not to impose any such clog on the power
specifically conferred upon the female Hindu.
5. 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.
6. 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 husband‟s 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.
Case Law: G. Appaswami Chettiar v. Sarangapani Chettiar
16

7. 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.
8. 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 can‟t 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

16
AIR 1978 SC 1051
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.
Some suggestions have been given below which may be implemented at the legislative and
administrative level, which would make adoption more effective in India –
1. Section 7, as it appears on the statute, reflects the legislative defect in draftsmanship. 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) in the case of an adopted son or daughter by a Hindu male the adoptivefather and after
him, the adoptive mother.
(b) in the case of an adopted son or daughter by a Hindu female (having nohusband) – the
adoptive mother.
2. 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.
3. 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 who should be held personally responsible for the report.
4. 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.
5. 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 as it was provides in the
case of Gulkarin vs. Prahlad
17
and also in the case of Gopal vs. Kamta
18
. 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

17
AIR1968Raj 51
18
AIR1972 MP 193
its provisions, the same shall be treated as void. Hence, for Hindus, Juvenile Justice Act
cannot be of any use in the matter of adoption.
6. With the passing of the Hindu Succession Act, 1956, which treats sons and daughters
equally in the matter 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 adoption, applicable to
all societies and communities alike. So a Uniform Adoption Law in India should be
introduced, that definitely has to be appreciated.





CONCLUSION
It is clear that the only statute which recognises adoption is the Hindu Adoptions and
Maintenance Act, 1956. This Act has been departed from the earlier law in liberalise way.
But at the same time, this Act has some loopholes also. This Act only applies to Hindus and
there is no such specific law governing adoption in any other religions.
Though the Act has tried to eradicate gender biasness but still not able to do that fullyas in the
case of Malti Roy Choudhary vs. Sudhindranath Majumdar
19
it was clearly shown that
gender discrimination still exists. Adoption should be with the consent of both the parents,
both parents should equally participate; otherwise it will be the child only who is going to
suffer. The children are vulnerable and totally dependent on the adults who are making their
life decisions, and hence safeguarding their rights and interests is of prime importance.
Adoption not only fulfils the desire of the parenthood on part of the adoptive parents but also
provides a family to the child.
Other aspect could be that adoption in a sense helps in population control. All children are
God gifted. So, there should not be any difference between one‟s own child and the other‟s
child. Rather than conceiving more number of children, one can adopt which will ultimately
serve two purposes: population control and most important is child welfare.
There are so many children who don‟t have parents, homes. By adopting them, they will be
able to entail the proper education, relations, etc. The only thing needs to be taken care that
the child is getting in the right hands. This can be ensured by checking the adoptive family
background, parents‟ marital relationship, attitude for adoption, financial stability, etc.
To ensure the welfare of the children, there needs to be uniform civil code for adoption.
I would conclude the article by a famous quote by Joyce Maguire Pavao-
“Adoption is not about finding children for families, it's about finding families for
children.”



19
AIR 2007 Cal 4, (2007) 1 CALLT 323 HC