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Adoption deed

Covered under Hindu Adoption and


Maintenance Act of 1956
Guardians and Wards Act 1890
Juvenile Justice Care and Protection Act
2000

Hindu Adoption and


Maintenance Act, 1956
Applicable for Hindus, Buddhists, Jains and Sikhs
Not applicable for Muslims, Parsis, Jews
Although adoption is the best resort for a child in
absence of his natural parents, personal law of
Muslims, Christians, Parsis and Jews does not
recognize complete adoption. Thus, individuals
belonging to these religions do not have an
enabling law to adopt a child.
They can take the child in 'guardianship' under
the provisions of the Guardian and Wards Act,
1890

Definition of Adoption
Transplantation of child from the family of
his natural parents to another family by
mutual consent of adopting parents and
natural parents

Who can adopt?


Adoption by males Any Hindu male who is of
sound mind and not a minor can adopt
If he has a wife then her consent is essential
unless
1. the wife has finally and completely renounced
the world
2. has ceased to be hindu
3. Has been declared to be of unsound mind by
a court of competent jurisdiction
If a person has more than one wife living, the
consent of all of them is required

Who can adopt?

Adoption by females- any hindu female


Who is of sound mind
Who is not a minor
Who is not married or if married, whose
marriage has been dissolved
Whose husband is dead or has completely
renounced the world
Husband has ceased to be hindu
Husband had been declared of unsound mind

Who can give in adoption?


No person except father or mother or guardian
has the capacity to give the child in adoption
The father, if alive, shall alone have the right to
give in adoption but he can do so only with the
consent of mother if she is alive unless
1. the wife has finally and completely renounced
the world
2. has ceased to be hindu
3. Has been declared to be of unsound mind by
a court of competent jurisdiction

Who can give in adoption?


The mother may give in adoption if the
father
1. is dead
2. has finally and completely renounced
the world
2. has ceased to be hindu
3. Has been declared to be of unsound
mind by a court of competent jurisdiction

Who can give in adoption?

Where both father and mother


1. are dead
2. have finally and completely renounced the world
3.have ceased to be hindu
4.Have been declared to be of unsound mind by a court
of competent jurisdiction
5. have abandoned the child
6. Parentage is unknown
In above mentioned cases the guardian may give the
child for adoption with previous permission of the court.
The guardian is appointed by a court of compent
jurisdiction

Who may be adopted?


1. only hindu
2. Not already adopted
3. not married unless there is a custom
which permits married persons being
taken in adoption
4. Not completed the age of 15

Essentials of a valid adoption


If adopting a son, the adoptive parents must not
have a son, sons son or sons sons son
If adopting a daughter, the adoptive parents
must not have a daughter or sons daughter
living at the time of adoption
If a male adopts a female, the adoptive father
should be at least 21 years older than the child
to be adopted
If a female adopts a male, the adoptive mother
should be at least 21 years older than the child
to be adopted

Essentials of a valid adoption


The same child may not be adopted
simultaneously by 2 or more persons
There must be actual give and take
between parents and guardians or
between both sets of parents. The
ceremony is called datta homam but is not
a pre-requisite for a valid adoption

Effects of adoption
The adopted child becomes a part of the adoptive family
for all purposes with effect from the date of adoption and
all ties with family of birth are severed except 1. the child cannot marry a person whom he or she could
not have married, if he or she had continued in the family
of birth
2. any property vested in the child before adoption shall
continue to vest along with the obligations attached to
ownership including obligation to maintain relatives
3. the adopted child shall not divest any person of any
estate which vested in him or her before adoption

Attestation
Deed must be executed by giver as well
as receiver and must be clearly attested
as bond

Registration
Section 16 of Hindu Adoption and
Maintenance Act 1956 requires
registration of the adoption deed
Stamp duty is also chargeable on
adoption deeds under Article 3 Schedule1
of Indian Stamp Act

Couples from all religions can gain the status of


adoptive parents under the Juvenile Justice (JJ)
Act (Care and Protection of Children), 2000.
An amendment brought in JJ Act in 2006
incorporated provisions regarding adoption and
has allowed people following Christianity and
Islam also to get the status which was denied to
them till recently. They were only given the
status of guardianship till the child attained 18
years.

JJA, 2000 has managed to legitimize uniform adoption,


when previous attempts to pass the Adoption of Children
Bill had failed.
Section 41 of the Act deals with carrying out investigations
and giving children up for adoption in accordance with the
guidelines issued by the State governments.
The Child Welfare Committee is to declare a child free for
adoption in the case of abandoned children. Under this
Act, a child may be given for adoption irrespective of the
number of living biological sons or daughters.
This is contrary to the provisions contained in the Hindu
Adoption and Maintenance Act (HAMA). The HAMA
permits a Hindu to adopt a child whose gender differs from
the gender of the biological child.
The provisions with regard to adoption under the new Act
enable a Muslim, Parsi or Christian to take a child in
adoption. A Hindu can adopt a child whose gender is same
as that of the biological child .

Section 41 Sub section 6 of Juvenile Justice


Act amended in 2006
The court may allow a child to be given in
adoption a. to a person irrespective of marital status
or
b. to parents to adopt a child of the same
sex irrespective of the number of
biological sons or daughters or
c. childless couples

Earlier, only the Hindu Adoption and


Maintenance Act gave all the rights of a
biological child to the adopted child and
the status of adoptive parents. A number
of couples in other religions are now going
in for correcting the status of guardianship
to adoptive parents under the provisions in
the amendment brought about in JJ Act
2006.

Flaws and loopholes of the Juvenile Justice


(Care and Protection of Children) Act, 2000
Existence of a prior law relating to
adoption for Hindus,
The non-existence of adoption laws for
non-Hindu communities,
The prohibition of adoption in the religious
laws of some communities, for example
Muslims
The silence of the Act on the issue of intercountry adoptions.

It
is
a
well-settled
principle
of
Jurisprudence that when there is a general
and specific law on the same aspect of
law, the latter has precedence over the
former. Consequently, the Juvenile Justice
Act is rendered fruitless and ineffective by
the very presence of Hindu Adoptions and
Maintenance Act, 1956, in case of
Hindus.

The
Muslims
challenge
the
constitutionality of the provision (section
41 of the Juvenile Justice (Care and
Protection of Children) Act, 2000) per se,
since the concept of adoption runs
contrary to the injunctions of the Holy
Koran.

Procedure for Inter Country


Adoption
The Supreme Court of India has laid down that every
application from a foreigner/NRI desiring to adopt a child
must be sponsored by a social or child welfare agency
recognized or licensed by the Government or a
Department of the Foreign Govt. to sponsor such cases
in the country in which the foreigner is resident. The
foreign agency should also be an agency authorised by
CARA(Central Adoption Resource Agency), Ministry of
Social Justice & Empowerment, Govt. of India. No
application by a foreigner/NRI for taking a child in
adoption should be entertained directly by any social or
child welfare agency in India.

Criteria for Foreign Prospective


Adoptive Parents

Married couple with 5 years of a stable relationship, age, financial and


health status with reasonable income to support the child should be evident
in the Home Study Report.
Prospective adoptive parents having composite age of 90 years or less can
adopt infants and young children. These provisions may be suitably relaxed
in exceptional cases, such as older children and children with special needs,
for reasons clearly stated in the Home Study Report. However, in no case
should the age of any one of the prospective adoptive parents exceed 55
years.
Single persons (never married, widowed, divorced) up to 45 years can also
adopt.
Age difference of the single adoptive parent and child should be 21 years or
more.
A FPAP in no case should be less than 30 years and more than 55 years.
A second adoption from India will be considered only when the legal
adoption of the first child is completed.
Same sex couples are not eligible to adopt.