ADOPTION UNDER HINDU ADOPTION AND MAINTENANCE ACT, 1956

Adoption is an institutionalised practice through which an individual belonging to one

kinship group acquires new kinship ties that are socially and legally defined as equivalent to
the congenital ties. The new kinship supersedes the old ones wholly or in part.

The objective or purpose of the adoption was defined in the case of Mangilal v. Bhagirath,
1997.
The court said that the object of the adoption is two fold.
● First is the religious purpose to secure the spiritual benefit by having a son for the
purpose of offering funeral cake ie pinddan to the ancestors of adopters and they
themselves.
● Second is the secular purpose that is to secure an heir and perpetuates the adopter’s
name.
Adoption under hindu law is governed under Hindu Adoption and Maintenance Act, 1956.
Sec. 5- 17 deals with adoption.

Sec. 6 deals with essentials of a valid adoption.

- The person adopting should have right and capacity to adopt
- The person giving in adoption should have capacity and right to adopt
- The person adopted should be capable of being taken into adoption.
- Adoption should be done by complying with this chapter.

Sec. 7 deals with the capacity of a male Hindu to take in adoption.

- Any male hindu(single/divorcee/widower) who is of sound mind and is major has
capacity to adopt son or daughter.
- Provided, if he has wife at the time of adoption, her consent is necessary.
- Her consent is not necessary if she has renounced the world, ceased to be hindu or has
been declared unsound by the court.
- If there is more than one wife, consent of all required.

Case: Sarabjeet Kaur v. Gurmeet kaur - court held that adoption without the consent of the
wife is illegal.

Sec. 8 deals with the capacity of a female Hindu to take in adoption.

- Any female hindu(single/divorcee/widower) who is of sound mind and is major has
capacity to adopt son or daughter.
- Provided, if she has husband at the time of adoption, his consent is necessary.
- His consent is not necessary if he has renounced the world, ceased to be hindu or has
been declared unsound by the court.
Case: Ashok Naidu v. Raymond - A women can adopt even though she is not married.
Afterwards when she gets married her husband will be the step father of the adopted chid.

Sec. 9 deals with person capable of giving in adoption.

- Only father or mother or guardian of the child have the capacity to give the chid in
adoption.
- Father and mother have equal right to give son or daughter in adoption.
- Provided, the consent of the another spouse is needed unless they have renounced the
world, ceased to be hindu or declared of unsound mind by the court.
 - If both the father and mother are dead, have renounced the world, ceased to be hindu
or declared of unsound mind by the court then the guardian of the child can give the
child in adoption with the previous permission of the court.
In this case court should be satisfy that the adoption will be for welfare of the child
and no payment is made for the exchange of the child.

Sec. 10 deals with person who may be adopted

- he/she should be a hindu
- Not already been adopted
- Not married unless the custom allows(custom should be continuous for past 40 yrs)
- Should be under the age of 15, except the custom allows.

Sec 11 deals with other conditions for a valid adoption

- If son is adopted, the adoptive parent should not have hindu son, son’s son, son’s
son’s son living at the time of adoption.
- If daughter is adopted, the adoptive parents should not have hindu daughter, son’s
daughter living at the time of adoption.
- if the adoption is by a male and the person to be adopted is a female, the adoptive
father is at least twenty-one years older than the person to be adopted
- if the adoption is by a female and the person to be adopted is a male, the adoptive
mother is at least twenty-one years older than the person to be adopted
- Two or more person cannot adopt same chid
- The chid to be adopted should be given in adoption with the intent to transfer the child
from the family of its birth to the family of the adoption.
Sec. 12 deals with effect of adoption
- When a child has been adopted,
● They shall be considered as the child of their adoptive parents for all purposes.
● The adoptive parents shall have all the parental obligations and rights.
● The child shall have all the rights and obligations of a son/daughter
- Provided, the person adopted cannot have incestuous relationship with any person
from biological family
- If he has property before the adoption, he can continue to possess the same with some
obligation.
- the adopted child shall not deprive any member of his birth family of any property
that he held before the adoption.
Sec. 15 states that the valid adoption cannot be cancelled
- When an adoption has been validly made, there is no way that they can cancel the
adoption.
- Section 15 of the act clearly states that neither the parents can cancel a valid adoption,
nor the child has any right to renounce their adoption and return to their biological
family.
- Once a valid adoption is made, there is no going back. It is final

Sec. 17 deals with prohibition of certain payments

- No person can receive or give any payment for the adoption
- If does so then punished with imprisonment of 6 months with fine.
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FUNDAMENTAL PRINCIPLES FOR ADOPTION
● While giving in adoption(OAS) child’s best interest shall be given paramount
importance
● Preference shall be given to give the child for adoption to the india citizen
● all adoptions shall be registered on Child Adoption Resource Information and
Guidance System and the confidentiality of the same shall be maintained by the
Authority.
ADOPTION REGULATION, 2017
Child eligible for adoption: Sec. 4 of Adoption regulation 2017
- any orphan or abandoned or surrendered child, declared legally free for adoption by
the Child Welfare Committee;
- Abandoned means child who is deserted by the parents, guardian or adoption parent
declared by CWC
- Surrendered child means child who is given up to CWC as the parent cannot raise
them due to certain factors declared by the court.
- Orphan child means who is without biological, adoptive or legal guardian.
Eligibility for Prospective Adoptive Parents: Sec. 5 of AR, 2017
(Prospective Adoptive Parents means Male or Female who wants to adopt)
- shall be
● physically, mentally and emotionally stable,
● financially capable and
● shall not have any life threatening medical condition.
- Any prospective adoptive parents; single or married; having a biological son/
daughter or not can adopt a child but
● Consent of the spouse in case of married
● Single female can adopt a child of any gender
● Single male cannot adopt a female child.
- Child cannot be given in adoption to a couple unless they have at least two years of
stable marital relationship.
- If the child for adoption is upto the age of 4yrs then the total addition of the age of
both the parents should not be more than 90 yrs. If it is a single parent then, age
cannot be more than 45yrs.
- If the child for adoption is of the age 4-8 yrs then the total addition of the age of both
the parents should not be more than 100 yrs. If it is a single parent then, age cannot be
more than 50yrs.
- If the child for adoption is of the age 8-18 yrs then the total addition of the age of both
the parents should not be more than 110 yrs. If it is a single parent then, age cannot be
more than 55yrs.
- The minimum age difference between the child and either of the prospective adoptive
parents shall not be less than twenty-five years.
- This age criteria is not applicable on relative adoption and adoption by step parent.
- Couples with three or more children cannot be given adoption except in case of
special need children.
ADOPTION UNDER JJ Act, 2015
The Juvenile Justice (Care and Protection of Children) Act, 2015 is a secular act which
means that people of any religion can adopt a child under this act. It consists of regulation for
adoption as framed by CARA(central adoption resource authority). The act also deals with
inter country adoption. SEC 56-73 deals with adoption. Children upto 18 can be adopted.
The objective of the act is to protect children in need of care and protection by catering to
their basic needs by adopting a child-friendly approach in the adjudication in the best interest
of children.
Definitions
● Sec 2(2) defines adoption as the process through which the adopted child is
permanently separated from his biological parents and becomes the lawful child of his
adoptive parents with all the rights and responsibilities.
● 2(11) - Central Authority means govt. Dept. recognies under Hague
convention.(CARA)
● Sec-2(29) “foster care” means placement of a child,(temporarily) by the Committee
for the purpose of alternate care in the domestic environment of a family, other than
the child’s biological family, that has been, qualified, approved for providing such
care.
Foster family means the family in which child is put in foster care.
● Sec-2(34) “inter-country adoption” means adoption of a child from India by
non-resident Indian or by a person of Indian origin or by a foreigner;
● Sec-2(9)“best interest of child” means the basis for any decision taken for the child, to
ensure fulfilment of his basic rights and needs, identity, social well-being and
physical, emotional and intellectual development;
● “overseas citizen of India” means person registered under citizenship act
● “person of Indian origin” means a person, any of whose lineal ancestors is or was an
Indian national, and who is presently holding a Person of Indian Origin Card issued
by the Central Government;
TYPES OF ADOPTION UNDER JJ ACT AND AR,2017
- In-country adoption of OAS children.
- Inter-country adoption of OAS children.
- In-country relative adoption.
- Inter-country relative adoption.
- Adoption by step-parents.
SECTION 56
- Adoption should be to ensure right family for OAS children
- Adoption of a child from a relative by another relative, irrespective of their religion,
can be made as per the provisions of this act.
- This act does not apply to HAMA, 1956
- All inter-country adoptions shall be done only as per the provision of this Act and the
adoption regulations.
 - Any person, who takes or sends a child to a foreign country or takes part in any such
arrangement without a valid order from the Court, shall be punishable as per the
provisions of section - 80.
SECTION 57: Eligibility of prospective adoptive parent
- The prospective adoptive parents shall be physically fit, financially sound, mentally
alert to adopt a child for providing a good upbringing to him.
- In case of a couple, the consent of the spouses for the adoption is required.
- A single or divorced person can also adopt
- A single male is not eligible to adopt a girl child.
- Any other criteria that may be specified in the adoption regulations framed by the
Authority.
SECTION 58: Procedure for adoption by Indian prospective adoptive parents living in India
- They irrespective of religion if interested in adoption can apply for it to a specialised
Adoption Agency, according to adoption regulations framed by the Authority.
- The Specialised Adoption Agency shall prepare the home study report of the
prospective adoptive parents and If find them eligible will refer a child declared
legally free for adoption to them along with the child study report and medical report
of the child, in the manner provided by adoption regulations.
- On the receipt of the acceptance of the child from the prospective adoptive parents
● The Specialised Adoption Agency will give the child in pre-adoption foster
care
● And file an application before DM to obtain adoption order
- When the order is passed by the DM, the Specialised Adoption Agency shall send
immediately the same to the prospective adoptive parents.
- The progress and wellbeing of the child in the adoptive family shall be followed up
and ascertained in the manner provided in the adoption regulations framed by the
Authority.
● The DM before issuing the adoption order A/t sec. 61 should satisfy that
- the adoption is for the welfare of the child
- due consideration is given to the wishes of the child having regard to the age
and understanding of the child
- No payment or consideration in any form is given or taken by any party,
except as permitted under the adoption regulations framed by the Authority
towards the adoption fees or service charge or child care corpus.
Effect of Adoption - Sec 63 of JJ Act
with effect from the date on which the adoption order takes effect
- A child in respect of whom an adoption order is issued by the DM shall become the
child of the adoptive parents,
- the adoptive parents shall become the parents of the child as if the child had been born
to the adoptive parents, for all purposes, including intestacy,
- Provided that any property which has vested in the adopted child before the adoption
will continue to vest.
Reporting of Adoption - Sec 64 of JJ Act
The information regarding all adoption orders issued by the DM shall be forwarded to
Authority on monthly basis in the manner as provided in the adoption regulations framed by
the Authority, so as to enable Authority to maintain the data on adoption.

➢ SEC 59 deals with Procedure for inter-country adoption of an orphan or abandoned

or surrendered child.
INTERNATIONAL FRAMEWORK ON INTER COUNTRY ADOPTION - HAGUE
CONVENTION
● The Hague convention of 1993 states that the child, for the full and harmonious
development of his or her personality, should grow up in a family environment.
● India signed this Hague convention on inter -country adoption in 2003 and Accepted
it the same with a view to protection of Indian children placed in inter-country
adoption.
● To restructure the process of inter-country adoption, (centre adoption resource
agency) was formed in India in 1986. The role of CARA is to observe and regulate
the adoption process in India.
● Hague convention is based on two principles for protection of international adoption
- to ensure that intercountry adoption is in the best interest of the child
- to establish a system of cooperation between the contacting states to ensure
that the safeguards are respected
● For the purpose of adoption they work in cooperation with the Central Authority of
the country and take many points in consideration such as
- Fitness of the adoptive parents
- A restriction on private adoption
CASE LAW ON INTER COUNTRY ADOPTION
● Re Rasiklal Chhaganlal Mehta 1982
The Court held that inter-country adoptions under Sec 9(4) of the Hindu Adoptions and
Maintenance Act, 1956 should be legally valid under the laws of both the countries. The
adoptive parents must fulfil the requirement of law of adoptions in their country and must
have the requisite permission to adopt from the appropriate authority thereby ensuring that
the child would not suffer in immigration and obtaining nationality in the adoptive parents’
country.

● Lakshmikant Pandey v. Union of India, 1984

Facts: A letter was written to the SC by adv. Lakshmi kant pandey regarding the malpractices
by the social organisation in inter country adoption. It was treated as PIL.
He mentioned about the malpractices such as child abuse & child neglect by the adoptive
parents, sexual harrasment and child trafiking in the name of adoption.
Observations
- Provisions like article 15 (3), 24 and 39 of the Indian constitution were used as a
reference along with the UN declaration on the rights of the child.
- It was made compulsory that foreigners who wish to adopt Indian children should be
sponsored by licensed agencies of their own country.
- The Supreme Court justified the idea of setting up of Central Adoption Resource
Agency (CARA) on the ground that institution like CARA would be an organisation
of primacy and would work as a useful agency in the field.
- The Central Adoption Resource Agency (CARA) was set up by the government in
1990 , as a result of this case.
CASE LAW ON JJ ACT
● Shabnam Hashmi Vs. Union of India, 2014
- Any person, irrespective of religion, caste, creed etc. can adopt a child under J.J. Act.
- Prospective parents have the option to employ the provisions of J.J. Act to adopt a
child or they can also choose not to do so and to submit themselves to their applicable
personal laws.
 - However, personal laws cannot dictate the operation of the provisions of the J.J. Act
and cannot come in the way of a person, who chooses to adopt a child under J.J. Act.

ADOPTION RULES FOR CHRISTIANS

- Personal laws of Muslim, Christian, Parsis and Jews do not recognise complete
adoption so if they want to adopt a child can take the guardianship of a child under
section 8 of the Guardians and Wards Act, 1890.
- However, an adoption can take place from an orphanage by obtaining permission
from the court under Guardians and Wards Act.
- Christians can take a child in adoption under the Guardians and Wards Act, 1890 only
under foster care. Once a child under foster care becomes major, he is free to break
away all his connections from his adoptive parents.
CASE
Philip Alfred Malvin V. Gonsalvis, 1999
The Single Bench of the High Court of Kerala held that it is an admitted fact that Christian
Law does not prohibit adoption.
Maxin George v. Indian Oil Corporation Ltd 2005
- A Division Bench of the Kerala High Court added that an abandoned child fostered
by a couple does not attain the status of an adopted child unless the formalities of
adoption is duly empowered .
- Obtaining an order appointing one as the guardian of such a child under the Guardians
and Wards Act also does not confer on the child the status of an adopted child.
Moreover christians can adopt under JJ Act as it is a secular act. Write about the JJ act.

CARA
The Central Adoption Resource Authority (CARA) is an Autonomous Body under the
Ministry of Women and Child Development, Government of India and is responsible for both
in-country and inter-country adoptions in India. Set up in 1990
Its objectives are to find an affectionate and caring family for every
orphan/destitute/surrendered child in the country.
It 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.
Functions
- It functions as the nodal body for adoption of Indian children
- Mandated to monitor and regulate in-country and inter-country adoptions through
Child Adoption Resource Information & Guidance System(CARINGS),an online
platform to bring transparency in the adoption system and also curtailing delays at
various levels.
CARA has to provide annual report related to adoption the country and they also make follow
up reports.
Fundamental Principle governing adoption
- The child's best interests shall be of paramount consideration, while processing any
adoption placement;
- preference shall be given to Indian citizens and with due regard to the principle of
placement of the child in his own socio-cultural environment, as far as possible;
- all adoptions shall be registered on Child Adoption Resource Information and
Guidance System and the confidentiality of the same shall be maintained by the
Authority.
Section 68 of the JJ Act also mandated the establishment of CARA to perform following
functions
- to promote in-country adoptions and to facilitate inter-State adoptions in coordination
with State Agency
- to regulate inter-country adoption
- to frame regulations on adoption and related matters from time to time as may be
necessary
- to carry out the functions of the Central Authority under the Hague Convention on
Protection of Children and Cooperation in respect of Inter-country Adoption.