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.