Law

Good To Know: Adoption Laws In India

From our friends at
LawRato

June 21st, 2018

SHARES

Adoption is a life-changing step not only for the parent(s) intending to adopt but also for the child getting adopted. It is a legal procedure that allows a person to become a parent of a child, even when the child and the prospective parent(s) are not related by blood. Adopting a child can be immensely fulfilling for the parents as well as the child, however, the process, as well as the decision of adoption, can be long and daunting. The parent may face several legal complexities, along with proving one’s capability as a parent. Read on to know more about adoption laws in India, if you’re planning to adopt.

PART 1

LAWS INVOLVED IN ADOPTION

There are 3 main legislations in India, under which one can adopt children in India.

1. For Hindus / Buddhists / Jains / Sikhs

Under the Hindu Adoption and Maintenance Act, 1956 (HAMA), only direct and private adoption is allowed and hence, the child to be adopted needs to be actually given and taken in adoption by the concerned parents.

a. Who can / cannot adopt?

  • Only Hindus, Buddhists, Jains and Sikhs can adopt under this Act. The child, the giver, and the taker have to be Hindus (or Buddhists, or Jains, or Sikhs)
    • A male individual who is above the age of 18 and of sound mind can adopt and if he is married, after taking consent of his wife.
  • Single female above the age of 18 and of sound mind, who is either unmarried, divorced or a widow can adopt.

b. Who can be adopted?

  • The child to be adopted must be below 15 years of age.
  • He/ she has to be a Hindu.
  • He/she has not been married.
  • He/ she has not already been adopted.

c. Other mandatory conditions to be fulfilled:

  • A person already having a male child cannot adopt a male child.  
  • A person already having a female child cannot adopt a female child.  
  • The age difference between the adoptive father and the adoptive female child should be at least 21 years.
  • The age difference between the adoptive mother and the adoptive male child should be at least 21 years.
  • The same child cannot be adopted by two or more persons, simultaneously.
  • No person should receive or give payment in consideration of the adoption.

d. When is the Court’s Permission required?

  • When both mother and father are dead, or
  • When the mother and father have renounced the world, or
  • When the mother and father have abandoned the child, or
  • When both the father and the mother have been declared by the Court to be of unsound mind, or
  • Where the parentage of the child is unknown.

Once the child is adopted, he/she will be deemed to be the child of the adoptive father/mother for all purposes, from the date of the adoption. A valid adoption under this Act, cannot be cancelled later on. A registered deed finalizes the adoption.

2. Secular Law For All Religions

Under the Juvenile Justice Act, 2015 (JJ Act), even non-Hindus can adopt.

a. Who can adopt?

  • An Indian, NRI or foreign citizen can adopt a child, following the separate procedures as provided for each
  • Any male or female individual regardless of marital status can adopt
  • A single male cannot adopt a female child, however, a single female can take a child of any gender.
  • Only a couple who has had a stable marital relationship of two years can adopt.

b. Who can be adopted?

  • Under this legislation, a couple or a single person can adopt:
    • an orphan, or
    • a surrendered child, or
    • an abandoned child

One can adopt irrespective of religion. Thus, a Muslim, Christian, Parsi, etc. can also adopt under this Act.

c. Other mandatory conditions to be fulfilled

  • The prospective parent needs to be physically, mentally and emotionally fit and stable and should be motivated to provide good upbringing to the adopted child.
  • They should be financially capable to raise a child
  • A couple already having three children will not be considered for adoption, unless in cases of special needs children / relative adoption/adoption by step-parent.
  • If a couple is adopting, consent of both the partners is required.
  • Eligibility of parents is decided by the age of the adoptive parents on the date of registration. The same has been given as follows:
    • When the age of the child is up to 4 years:
    • Maximum composite age of PAP(Couple) is 90 years
    • Maximum composite age of single PAP is 45 years
  • When the age of the child is between 4-8 years:
    • Maximum composite age of PAP(Couple) is 100 years
    • Maximum composite age of single PAP is 50 years
  • When the age of the child is between 8-18 years:
    • Maximum composite age of PAP(Couple) is 110 years
    • Maximum composite age of single PAP is 55 years
  • The minimum age difference between the child and the adoptive parent needs to be at least 25 years. This age criterion is not applicable in cases of relative adoptions and adoptions by step-parent.

3.GUARDIANSHIP – Guardians and Wards Act, 1890 (GAWA)

  • Under this, only a Guardian and Ward relationship can be established.
  • All legal rights and responsibilities towards each other are relinquished as soon as the child attains majority (18 years of age)
  • This Act is not an adoption law per se as it does not establish a parent-child relationship.

 

PART 2

WHO CAN PLACE CHILD FOR ADOPTION ?

  • The child’s biological parent can place their child up for adoption, but only to licensed adoption agencies. The paperwork to legally terminate the biological parents’ rights are initiated by these agencies. Sixty days are given to the parents after signing of the papers so as to be completely sure before the process becomes irrevocable.
  • A child that has been found to be abandoned and whose caretakers cannot be traced may be declared “Legally Free for Adoption” by the Child Welfare Committee.
  • A child who is court-committed can also come into adoption, through the Juvenile Welfare Board.
PART 3

PROCEDURE FOR ADOPTION

The main statutory body governing adoptions in India is the Central Adoption Resource Authority (CARA). The procedure set out by CARA is required to be followed for both, in-country and inter-country adoptions.

1. Registration

  • The Prospective parents need to first register on the online portal called “Carings” on the CARA Website or can approach District Child Protection Officer (DCPO) to register the prospective parent online.
  • The form requires information related to adoption preferences and will seek uploading of certain documents to prove their identity. Documents such as Marriage Certificate, Medical Certificates, Income Tax Returns Papers, Birth Certificates, etc.
  • After this, the registration number will be given and they officially become a PAP (Prospective adoptive parent)

2. Home Study

  • After the registration, a home study is conducted by a social worker from the adoption agency. This home study is conducted to confirm that the environment of the family is conducive for the child, and to verify the information submitted during registration.
  • A form will also be given to the PAP, wherein they can explain their desire and readiness to adopt a child.
  • The prospective parents will be required to pay an amount towards home study expenses.
  • A report of this home study is then uploaded into the “Carings” system.

3. Matching The Child:

  • Once, the “Carings” system will match a child, the prospective parent will be sent relevant information about such child.
  • The PAP will have 48 hours to accept or deny the child.
  • The parents may participate in a maximum of three rounds of such referral.
  • Once the prospective parent says yes to the child offered, they will have to visit the child care institution within two weeks to bring the child home for pre-adoption foster care, after requisite paperwork.
  • No parents are allowed to select a baby of their choice completely.

4. Court Procedure:

  • The adoption agency will file an application to the Court and get a court date to obtain a formal approval by the judge.
  • On the set court date, the adoptive parent will have to appear in the Court along with the child. For this process, take help of a lawyer is suggested to be taken.
  • Once the Court gives its formal order, the prospective adoptive parent becomes the legal parent of the child, and the adoptive agency will send across the new birth certificate of the child to the adoptive parent.

5. Follow Up of Progress:

  • The Specialised Adoption Agency (SAA) which has prepared the Home Study report, will then prepare the post-adoption follow-up for two years from the date of the pre-adoption foster placement with the PPA.

 

PART 4

INTER-COUNTRY ADOPTION

  • Inter-Country Adoptions can only be done under the Juvenile Justice Act, 2015
  • NOC is mandatory in cases of all inter-country adoptions, which is issued by CARA.
  • The post-adoption follow-up is carried out by Authorised Foreign Adoption Agency (AFAA) for a period of two years.

DO’s and DON’T’S

  • One should only adopt children from Specialised Adoption Agencies that are recognized by State Governments, and no unauthorized institution.
  • Documents should be uploaded with utmost care as incorrect documents lead to cancellation of registration.
  • No extra charges other than the ones prescribed by CARA guidelines should be made.
  • Touts and middlemen should be kept away from for the process of adoption.  

Share your thoughts

x

Stories that deserve attention, delivered to your inbox!

Handpicked, newsworthy stories which deserve the attention of a rational generation.

Send this to a friend