Adoption is creation of a parent child relationship between persons who are so related by birth. As a socio-legal process, adoption confers the same mutual rights and obligations that exist between natural parents and the child. For the orphan and abandoned children, who are deprived of growing in family settings, it confers the most important avenue for their care, protection and upbringing. The child gets identity of his/her adoptive parents in the society. There are many institutionalized children waiting for families and so also many childless parents in need of children. So adoption process brings them together.
Adoption under Hindu Law:
Adoption refers transplantation of a male child 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 male child is then taken as being born in the new family and acquires rights duties and status and his bond with the old family comes to an end. Under Hindu Adoption and Maintenance Act 1956, a daughter could also be adopted where as she can neither offer funeral cake nor can perform last rites of deceased but she can only continue the family line of the adoptive family.
The objectives of adoption:
(i) To get old-age protection by the adopted child.
(ii) To perpetuate family name and fame.
(iii) To keep secured the family property.
(iv) To solemnize of last rites and rituals of parents.
Requisites conditions of adoption from orphanage institution:
You can adopt if:
1. You and your spouse are below 45 years of age and your composite age does not exceed 90 years. If beyond 45, you will be required to adopt an older child proportionately to the number of years in excess of 45. However, in no case the age of prospective adoptive parents (PAP) should exceed 55 years.
2. Adoptive parents must be financially stable and must have reasonable regular source of income.
3. They must be physically fit and mentally sound to rear up a child.
4. They must have a genuine motivation to adopt a child.
We believe “Every child has a right to a family” and there is no better a rehabilitation measure for parentless and homeless children than adoption. Adoption is carried out in India under two different Acts viz. The Hindu Adoption and Maintenance Act (HAMA) 1956 and the Guardians and Wards Act (GAWA) 1890. HAMA is applicable to persons who are Hindu by religion or any of its forms or development including Buddhist, Jain, Sikh, Brahmo Prathna, Arya Samaj etc.
Under HAMA you can adopt a child of each sex but no two children of the same sex which means if you have a son, you can adopt only a female child and vice-versa. Non Hindu persons such as Muslims, Christians, Paris and Jews etc. who are governed by their own effected personal laws come under GAWA. Now a third Act has come into force besides HAMA and GAWA in the form of Juvenile Justice (care and protection of children) Act 2000 under which adoption can also be effected.
Why Legal Adoption:
Legal adoption is irrevocable and provides an extended security ring for the adopted child. It ensures the status of the child in the adoptive family. A legally adopted child can enforce ail his/her rights in the Court of Law. On the contrary, informal adoptions do not carry any legal sanction and are gross violation of the law of the land. As per Supreme Court of India Directives, specific guidelines have been laid down by the central Adoption Resource Authority, the apex controlling body in matter relating to adoption in India under the Ministry of Women and Child Development for legal adoption of Indian Children.
What is A.C.A?
Adoption coordinating Agency or A.C.A. as is popularly known, acts as a link between the prospective adoptive parents and the children waiting to join families in different adoption agencies. Previously known as voluntary coordinating Agency (V.C.A.), it actively promotes Indian adoption, creates awareness for popularization of the concept of legal adoption, provides counselling facilitates adoption activities in the state by coordinating among different stakeholders such as PAPs, prospective Adoptive parents adoption agencies, scrutiny agencies.
State Government, CARA Central Adoption Resource Authority and others. ACA maintains a central database on various aspects of adoption at the State level. The Supreme Court Judgement of September 27, 1985 recognized the role of ACAs (then VCAs) and recommended that such agencies to be set up in each state. In case of children not being placed in Indian families, ACA acts as a clearing house their placement abroad. Sanjog is the only ACA for the State of Orissa.
Avoid Intra-family Adoptions:
In earlier times childless couples would adopt from extended families. Today, the situation is vastly different as more and more families realize that such adoptions very frequently lead to disharmony within the families over inheritance rights and conflicting emotional ties. The adoptive parents face a situation where they never feel that the child belongs to them completely.
The child also finds it very difficult to accept his/her adoptive parents wholeheartedly knowing that he/ she has surviving birth parents too. As such, the child is caught between the birth parents and the adoptive parents, which often leads to emotional breakdowns and makes the child feel insecure.
Avoid Informal/Private Adoptions:
Never opt for informal or private adoptions as they are a grave breach of the law of the land. No legal procedure is followed, no counselling provided, no track record maintained or no follow up done in such type of adoptions. Legal and health status of the informally adopted child is not ascertained. His/her status in the family always remains that of an abandoned child. Never take a child from hospital/ nursing home, unrecognized agencies or from public places for the purpose of adoption. It may land persons concerned into serious legal complications.
Process of Legal Adoption:
Only legally free children (having no claimants) can be placed in adoption. Once a child becomes legally free, the process of identifying a suitable family for placement of the child begins. PAPs need to prepare the required documents following which a home visit is conducted to assess their suitability for parenting a child. When documents are complete in all respect the PAPs are invited to see the child and can take the child for medical test.
When the PAPs select a child, they can take the child for medical test. When the PAPs select a child, they can take the child with them by submitting all the required documents and signing a foster care agreement pending the finalization of their adoption case in the court of law. A miscellaneous case is then filed in the appropriate court. Documents are sent to the scrutiny committee by the court for verification when the scrutiny committee clears the case, documents are returned back to the court with its recommendations and then a date for hearing is fixed.
The court, when satisfied, passes adoption order giving permanent custody of the child to the adoptive parents. Within two months from issue of the order an adoption deed is made, which marks the end of the legal process of adoption. After completion of the Deed, adoptive parents can apply for birth certificate of the child. More information on adoption is available at CARA’S official website help www (dot) adoption India(dot)nic(dot)in.
Hindu adoptions and Maintenance Act-1956:
This act extends to the whole of India except the State of Jammu and Kashmir and it is applicable to persons belonging to only Hindu religion. Prior to this act only a male Hindu had the right to adopt a son provided he had no son or grandson or great grandson (son’s son’s sons). A wife could adopt a son to her husband but she could not do so during her husband’s life time without his express consent.
After his death she could adopt but the adoption had to be made to her husband. A daughter could not be adopted by a male or a female Hindu. The Hindu Adoption and Maintenance Act 1956 provides for the adoption of boys as well as girls. A widow can now adopt a son or daughter in her own name.
A female Hindu who is unmarried or a widow or a divorcee can adopt a son or a daughter to herself, provided she has not a son, grandson or great grandson at the time of adoption. The husband can adopt only with the consent of his wife, if she is alive and is of sound mind.
Requisites of a valid adoption:
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 act.
Capacity of a male Hindu to take in adoption:
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.
Capacity of a female Hindu to take in adoption:
Any Female Hindu:
(i) Who is of sound mind.
(ii) Who is not a minor and
(iii) Who is not married or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the would 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.
Persons capable of giving in adoption:
(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(2) Where both the father and mother are dead or have 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 not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.
(3) Before granting permission to guardian for adoption the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.
Persons who may be adopted:
No person shall be capable of being taken in adoption unless the following conditions are fulfilled namely:
(i) He or she is a Hindu
(ii) He or she has not already be adopted earlier
(iii) He or she has not married unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption.
(iv) 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.
Other conditions for a valid adoption:
In every adoption, the following conditions must be complied with:
(i) If any adoption is of son or daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu son or daughter or son’s son or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption.
(ii) If the adoption is by a male and the person to be adopted is a female, the adoptive father is least twenty-one years older than the person to be adopted.
(iii) 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.
(iv) The same child may not be adopted simultaneously by two or more person.
(v) The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption.
Provided that the performance of data human shall not be essential to the validity of an adoption.
The effect of adoption:
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 can not 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.
(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.
(d) Under this act both son and daughter are bound to maintain the aged or infirm parents, while previously only son was bound to do so.
Limitation of HAMA:
Today child adoption in India is being governed by the Hindu Adoption and Maintenance Act of 1956.
Although this act provides for legal adoptions by Hindus still then it is far from being perfect because of the for leaving reasons:
Some of the limitations are:
1. HAMA is not child oriented but parent oriented It is a religion specific Act.
2. It does not allow adoption of two children of the same sex by one adoptive couple.
3. It does not allow for adoption of a child of the same sex as the biological child.
4. The adoptive mother is only a consenting party and not a joint petitioner.
So in 1972 an attempt was made by Mr. H.R. Gokhale through a bill to promote adoption work more viable. This bill is not for spiritual welfare of the father but for the temporal welfare of the child. Some of the special features of the bill are discussed here.
The bill is thoroughly secular:
It is applicable uniformly to all Indians irrespective of religion, caste or creed.
1. There is no restriction of religion or caste
2. With respect to the child to be adopted.
3. The age limit of the adopted child is raised from 15 to 18 years to include a larger group of children.
4. The provision in clause 14 empowers the court to order the
5. Protection of the adopted child and to consider allegation of ill treatment, which is consistent with the spirit of the bill as a social welfare measure.
6. The bill also provides for licensing of social welfare institution.
Above all adoption agencies play the most crucial role in child adoption. They should appoint dedicated and service oriented responsible personnel having clear-cut knowledge of child rearing so that they will be able to foster natural mothering care with love and affection. Adoption institutions should promote adoption work by building social awareness among the parents.
They should create a positive congenial social atmosphere for the purpose of adoption. Moreover the international adoption of Indian children should be encouraged with careful attention and by fallowing strict measures so that the malpractice by foreign couples regarding adoption can be checked.