CRITICAL ANALYSIS OF ADOPTION LAWS IN INDIA

Children are considered as the future of a country. In India, children are next to god, and are pampered and taken care in the same way but another reality of the country is, around 60,000 children are abandoned every year. And often these abandoned children are pushed in the dark pit of violence and harassment, even issue of child labour is caused in some way or another. Only fortunate one among them are taken to the adoption agencies and are get adopted by someone, which gives them a second chance to start their lives.

Adoption is a sacred act performed by humans. It means to take the child of another person as one’s own child especially through legal procedures. Legal acceptance of this law is done in the year 1926; the first act in this regard was passed by England and Wales, i.e. Adoption of Children Act, 1926. The basic reason behind the legal recognition to the practice of Adoption is embark of influenza and World War 1 which cost many lives, resulting in increase in number of orphaned children. A more comprehensive act was followed in England in the year of 1950. The law regarding adoption in England and Wales says consent of both the biological parents and adoptive parents are necessary.

Process of adoption in India can be traced back to ancient times. The provisions of acts regarding adoption are more or less same, only the objective differs in different statutes. The objective lies between the humanitarian motive of helping and raising the destitute and abandoned child, and to the human desire for a kid as a caretaker in old age or an heir after death.

There is no universal law for adoption in India, and as we are aware that India is a diverse country with many religions living in harmony inside the same territory and is governed by their personal laws in family matters. In case of adoption also the Hindu Adoption and Maintenance Act, 1956 (HAMA) is the one and only personal law that deals with the matters of adoption and religion like Hindu, Sikh, Buddhists and Jain comes within its scope. There is no adoption law with regards to Muslims, Christians, Parsis and Jews that’s why they cannot adopt a child. The Guardians and Wards Act, 1890 is the only option left before them through which they can become guardians of a child.

Let us examine the existing laws and their loopholes. The first law regarding adoption is HAMA which is applicable on Hindu, Sikhs, Buddhists and Jain and after adoption the adopted child is to be treated as the biological child of the adopted parents and shall have rights on his or her parent’s property as the biological child may have and the adopted child should severe all his ties from his natural family. The requisites for legal adoption according to the HAMA are as follows:

  1. Any male hindu, who is major and of sound mind, married or unmarried, is eligible to take any child (son or daughter) into adoption, the only requisite here is, if the male hindu is married at the time of adoption then the consent of spouse is necessary.
  2. Any female hindu, who is major and of sound mind, can adopt a son or daughter only and only if she is unmarried, and if married, then her marriage must have been dissolved or her husband have renounce the world or has been declared incompetent. Thus in case of female hindu, a married female can’t adopt child. In case of a child adopted by the widow, the deceased husband of the widow should be treated as the father of the adopted child, and the same was held by the Supreme Court when this issue was brought before it in the case of Sawan Ram v. Kalavati.
  3. This legislation also gives requisites of who can be adopted. It provides that the child who is going to be adopted should be hindu, and should not been already adopted. The child should not be married or have attained age of 15 years, but both these requisites can be waived if the custom of that hindu community provides otherwise.

It is also to be noted here that adoption made are permanent in nature and neither the parents can cancel it, nor the adopted child has right to renounce it and go back to his natural family. Adoption can only be renounce if it is not valid, means not in consonance with the provisions of HAMA.

Now, the Guardians and Wards Act, 1890 which provides for guardianship to the persons who follows Muslims, Christians, Parses, and Jews, of a child who has not attained the age of 18 years and this act do not provide for complete adoption, rather it provides for the guardianship of the child, which ends when the child attains the age of 21 years. This act does not confer biological child status on the child who is under the guardianship.

Another legislation namely Juvenile Justice Act, 2000 is a secular law and a person of any religion can adopt any child, but this act has it loopholes as it does not provide for the consent clause in case of married couple, it lacks in providing age difference between adoptee and adoptive parents especially in case of when they are of opposite sex, that’s why this act cannot be called as complete one.

From the above legislations it is clear that the country is lacking a complete law for adoption as personal laws of several religion does not provide any law regarding adoption. Also the existing laws are having certain loopholes like the HAMA reflects gender biasness, although certain biasness has been reduced as in starting female hindu does not have right to adopt, but still a married female does not have right to adopt if her husband is competent and healthy. Thus this is clearly gender based discrimination.

In order to conclude I would like to say that a universal law for adoption is required in India and this step towards uniformity should also break the shackles of gender bias. This would also help in spreading awareness among people about the necessity of uniform civil code. Nevertheless it would be a boon for the childless parents of any religion, as it fills their lives with the laughter and mischief of the little ones.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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