Abstract
Adoption is a legal process that creates a parent child relation between persons not related by blood. An adopted child is entitled to all privileges as similar to natural-born child. Adoptive child also has right to inherit. It is usually referred to as the legal process of becoming non-biological parent. Adoption is the act of accepting with approval. The adopted son is then taken as being born in the new family and acquires rights, duties and status there only, and his tie with the old family comes to an end.
This article will identify the concept of adoption, evolution of adoption in ancient time and in 19th century, child adoption laws in India – Acts, enactments, ruling and decisions, and adoption under different religions in India.
This paper will mainly emphasis on the laws of adoption under Hindu law. It will also emphasis on the Hindu Adoption and Maintenance Act, 1956, Guardianship and Wards Act, 1980, and Juvenile Justice (care and protection of children) Act, 2000.
Introduction
Children are considered as a country’s future. Many children are abandoned in orphanages and many of them face severe exploitation. In some cases, children become victims of human trafficking and sexual harassment. Whereas, as a fortunate cases some abandoned children are taken in the process of adoption. Adoption process is simply a process of giving new life to an adoptive child. It is a noble cause which brings happiness in the adoptive child’s life.
“Every child has a right to have a family” and there is no better measure for parentless and homeless children than adoption. Adoption in India is carried out under different Acts. In India, adoption of children by Hindu adoptive parents is governed by the Hindu Adoption and Maintenance Act, 1956. This legislation was enacted to provide all the rights, privileges and responsibilities that are attached to the relationship of the adopted children similar to biological child.[1] Manu defines an adoptive son as follows- “a son equal in caste and affectionately disposed whom his mother or father (or both) give with water at the time of calamity, is called Dattrima son”.[2]
According to the earlier mode of adoption only son can be adopted. Hindu mythology believes that only son could be adopted for the continuation of family lineage and for the performance of one’s funeral rites. Even in Dharmasastras only son is qualified for an adoption. Traditionally a child was adopted for spiritual and temporal purpose and now adoption is also done to satisfy the emotional and parental instinct of adopters.[3] Whereas, according to new laws of adoption in Hindu law a girl child can also be adopted. Under Hindu Adoption and Maintenance Act, 1956 a daughter can also be adopted whereas as she can neither offer funeral cake nor can perform last rites of deceased. A child of a different caste may be adopted. A person may adopt a child with whose mother’s marriage is not lawful.[4]
There were some ceremonies which were required to performed at the time of adoption in earlier era and that ceremonies were Datta Homam and the physical act of giving and receiving with intent to transfer the boy from one family to another. Datta Homam is the process of sacrifice of burning of the clarified butter, which is offered as a sacrifice to fire by way of religious propitiation or oblation.[5] According to Madras and Bombay High Courts this ceremony was essential but according to the judgment given by Allahabad High Court Datta Homam was not necessary among Brahmins.[6] Though, this practice of datta homam is, under the present Act, not essential for an adoption made by any class of Hindus, Jains, Buddhists and Sikhs. Adoption laws of Hindu law deal under Hindu Adoption and Maintenance Act, 1956, and Guardianship and Wards Act, 1980. According to certain provisions of Juvenile justice (care and protection of children) Act, 2015, child welfare committee can legally declare an orphan, abandoned and surrendered child free for adoption and this Act also allows children up to the age of 18 to be adopted. This article will deal with detailed explanation of these three all acts.
Meaning of Adoption
The word adoption is derived from the old French word Adoptare which means to choose for oneself. Adoption is the legal process of giving and taking of child to non biological parent. It is a process that creates a parent child relation between persons not related by blood. The adopted son is then taken as being born in the new family and acquires rights, duties and status there only, and his tie with the old family comes to an end.
Adoption established ties of the son with his old family are severed and he is taken being born in the new family, acquiring rights, duties and status in the new family. It is simply a transplantation of a son from the family where he was born, to another family where he is given by the natural parents by way of gift. The adopted son is acquires rights, duties and status in the new family where he was given by his natural family, and his tie with same family comes to an end. [7]
Earlier concept of adoption is very much different from the early texts regarding adoption. For example Manu further stated that ‘An adopted son shall never take family name and the estate of his natural father- the funeral cakes follows the family and the estate- the funeral offering of him who gives the son in adoption cease as far as that son is concerned’. Whereas, the new concept of adoption mentioned under Hindu adoption and maintenance Act, 1956, is different from the old one. It stated that adopted child is entitled to all rights and duties in his new non biological family as similar to natural child of that family. According to the new law for the child given in adoption, there is a complete substitution of child from the family of birth to the adopter’s family. All such rights and privileges to which he or she is entitled in the family of his or her birth cease to exist on being given into adoption and such rights and privileges accrue to him or her in the adopter’s family. He or she is deemed to be born in the adopter’s family on the date of his or her being actually taken into adoption and the adoptive father or mother is treated as real father or mother.
“No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status, and return to his/her natural family”.[8]
Certain people are capable of adopting a child and some are not capable of doing so. Both male and female can adopt a child but there should be of certain age difference between the child and adopted father or mother. If the adoption is by a male and the person to be adopted is a female, the adopted parent is at least twenty one year older than the person to be adopted. And 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. Another important point regarding adoption is that same child may not be adopted simultaneously by two or more persons.[9]
Adoption laws in Ancient Times
In the ancient time, Hindu law mainly recognised five kinds of adopted son, but they were reduced only to two namely, the Dattaka and the Kritrima. The Dattaka form is prevalent throughout India whereas the Kritrima form is used in Mithila and the adjoining states. The Dattaka Mimansa and Dattaka Chandrika are two treaties on adoption in early laws, which have come to be regarded as authority. Where they differed with each other the latter was accepted as an authority in Bengal[10] and Madras[11], while the former was respected in other schools. According to P.N. Sen, “adoption had two aspects, in its secular aspect, it consisted of gift and acceptance which could only result in transferring the boy from the parental dominion of the donor to that of the done; but in so far as adoption was supposed to establish a certain non sensuous religious relation carrying with its certain religious juristic consequences, it could only be reached by the due performance of the religious ceremonies prescribed”.
The whole ancient textual law of adoption evolved from a few texts and metaphor. The metaphor is that of Saunaka and texts are those of Manu, Vashistha, Baudhayana and Sekala.
There is a list of certain texts, which are as follows:
Text of Manu– This text implies that the father and mother only can give in adoption, the done must be in distress of not having a son and the boy must be of the same caste.
Text of Vashistha– Vashistha says that 1. Man formed of uterine blood and virile seed proceeds from his mother and his father as an effect from its cause. 2. Therefore the father and mother and have power to give to sell and to abandon their sons. 3. But let him not give or receive in adoption an only son. 4. For he must remain to continue the line of the ancestors. 5. Let a woman neither give nor receive a son except with her husband’s permission. 6. He who desires to adopt a son, shall assemble his kinsmen, announce his attention to the king, make burnt offerings in the middle of the house, reciting the Vyahrites and take as a son, not a remote kinsman, just the nearest among his relatives.
Text of Baudhayana– this text is of the same effect as that of Vashistha.
Text of Sekala– Let one of a regenerate tribe destitute of male issue on the account adopt a boy as a son as the offspring of a Sapinda relation particularly; or also next to him one born in the same general family. If such is not, let him adopt one born in another family, except a daughter’s son and sister’s son and the son of the mother’s sister.
Saunaka’s Metaphor– Saunaka says that the boy to be adopted must be one bearing the reflection of a son. The phrase ‘bearing the reflection of a son’ has been taken to mean ‘the capability of being begotten by the adopter through niyoga or appointment or the like.’ The metaphor of Saunaka implies that one should be adopted whose mother, when maiden, might have been legally married with the adoptive father.
Under the ancient law, only the father and mother of a boy were competent to give him in adoption. The concurrence of both was considered to be desirable.
Before the commencement of Hindu Adoption and Maintenance Act, 1956, there were certain points for valid adoption, which are as follows-
1) The adopted person must be Hindu.
2) He must be male.
3) Nearest male sapinda was to be selected for adoption. If no such near sapinda was available then one who was less remote would selectee for adoption process.
4) Adopted son must be of same case of his adoptive father. Adoption of a person from a sub caste of the same primary caste was valid.[12]
5) The adopted person must not be deaf and dumb.[13]
6) An orphan child could not be adopted.
7) There was prohibition to adopt an eldest son was based on the analogy that the eldest son chiefly fulfilled the office of a son.
8) A person cannot give a son in adoption more than one time.
9) Illegitimate son could not be validly adopted. Even in Shudras, illegitimate son could not be adopted.
10) Two persons could not adopt the same boy. This would consider as illegal adoption.
Although, under pure Hindu law there were performances of ceremonies for adoption, Datta Homam was one of the most important ceremonies, which means that it is the sacrifice of the burning of clarified butter, which is offered as a sacrifice to fire by way of religious propitiation or oblation.[14] Datta Homam could be performed at any time after the physical act of giving and taking. The practice of Datta Homam was not essential in the case of adoption in the twice born classes when the adopted son belongs to the same gotra as to the adoptive father. Thus, this practice of Datta Homam is not essential in present laws of adoption.
Evolution of Adoption in 19th Century
During the era of late British India if a man had a son, grandson, or great grandson, whether natural or adopted, he was precluded from adoption. Similarly, simultaneous adoption continued to be invalid.[15] In Jamoona v. Bamasoondri, [16] the Privy Council looked into the question of adoption by a minor. Privy Council at that time noticed that a person who is a minor under the Indian Majority Act, 1875 can adopt or authorise his widow to adopt when he has attained the age of discretion. The age of majority according to the Dayabhaga school was fifteen years and according to Mitakshara school the age of majority was sixteen years. The court observed that the age of discretion was not certainly fixed earlier.
The primary right of giving a child in adoption was vested under the hand of father. He can do so even without the consent of his wife. Mother is incompetent to give her illegitimate child in adoption. [17]
In Kashishri Devia v. Greesh Chander,[18] where the wife so selected was the second wife of the adopted and the adoptive, mother died before the adopted son, it was held that on his death the eldest widow was not his heir as mother, being only a step-mother and the succession went to a nephew of the husband.
A Hindu father who converted his religion and become non Hindu, he did not lose his right of giving his Hindu son in adoption but since the physical act of giving was coupled with religious ceremonies, that act had to be delegated to a Hindu person. [19]
In relation to the rights of adopted child in the property matters, he has right to reopen the partition after his father’s death. In Shakan Lingan Pillai v. Pilla[20] the Court held that the adopted son is entitled to reopen a partition made after the death of his adoptive father by the member of the family and he could claim his share in the family property.
All the laws of adoption in late British era were regulated by Privy Council. Major changes introduced after the end of British era and also includes the change in the role of parliamentary laws were introduced. Hence, the Hindu code bill was introduced for matters related to Hindu laws. Adoption laws were also dealt under the same code. It provided little bit different laws of adoption which are mentioned below in brief.
During post independence era or in 19th century Hindu code bill was the most efficient piece of legislation covering all the major branches of Hindu law. Law relating to adoption were discussed under some part parts of Hindu code bill. The proposal in Hindu code bill with regard to adoption excludes the daughter from being taken in adoption. The only requirements which mentioned under Hindu code bill for adoption was that the child should male, he should be unmarried and he should be under the age of 15 years. Also, he should not have been adopted before. This bill does not prevent illegitimate child for being given in adoption. The parents who are giving their child in adoption must be sound mind person and must have attained 18 years of age. Another important point is that if the father of the child is dead, or he renounced the world or he ceased to be Hindu then mother of the child can give him in adoption even without father’s consent. The code provided that the man or his widow can’t take a child in adoption if son, grandson and great grandson are alive. The adoptive father must attain the age of majority and he should be sound mind. Thus, the code clearly simplifies the problem of the age or competence about adoption or we can say that the code clearly mentions the qualifications and disqualifications of adoption. The code did not mention any thing about contrary religious adoption. Code provided that the adoption must be completed by actual giving and taking of the child and there was no specific law prescribed for the registration of adoption, it is up to the choice of the party. The adoption of orphan was not particularly mentioned under the code. In ancient times practice of Datta Homam was essential requirement of adoption but in 19th century it no longer an essential one.
If the bachelor adopts a child and any girl married him after the adoption, she will be the mother of the adopted child. And several widows adopted a child; the senior most widow will be the adoptive mother. All the rights of the natural born child will be provided to adopted child. Adoption can only be possible if the adoptive father or mother does not have any son, grandson, and great grandson. If the principles of adoption are against the provisions of Hindu code bill, it would be considered as void. If there is any presence of misrepresentation, fraud or undue influence in the procedure of adoption then the suit may be filed against the accused.
Hindu code bill split into four fragments which have now become the acts of parliament. The Hindu Adoption and Maintenance Act 1956, which deal with the laws of adoption and maintenance, is one of the four fragments. The Guardian and Wards Act, 1890, explained the rules of becoming guardian of a minor child. Statutes of guardianship and wards Act does not specifically deal with adoption laws but it deal with the guardianship process of the minor. It contains codified laws of guardianship. Succession rights of the adopted child deal with Indian succession Act, 1956 and Juvenile Justice Act, 2000 deals with the law of care and protection of abandoned and neglected child. Institutional care of the destitute and orphan children appears to be the largest service of for the care. This Act mainly focuses on the care of juvenile.
Child Adoption Laws in India under different Act
There were different practices and customs performed in adoption in ancient times but the practice of adoption remain the same. Though the objectives of the early Acts and new Acts of adoption differed from each other but the main gist of adoption is not different in these acts. Actual giving and taking of child remain the same from the ancient times. Mainly the adoption process is for taking care of neglected and destitute child.
The process of adoption is not permitted in the personal laws of Muslims, Christians, Parsis and Jews in India. That’s why; they usually opt for guardianship of a child through the Guardians and Wards Act, 1890. Citizens having Hindus, Jains, Sikhs, or Buddhists religion are allowed to formally adopt a child. The adoption is under the rules of Hindu Adoption and Maintenance Act of 1956 that was enacted in India as a part of the Hindu Code Bills.
Concept of adoption under the present Hindu law does not provide for the performance of any religious ceremonies at the time of adoption. It prescribes only actual giving and taking of child. Hence, this Act shows the secular nature of adoption process.
Hindu Adoption and Maintenance Act, 1956
The Hindu Adoption and Maintenance Act, 1956, has now codified the law and modified the law of adoption. The changes incorporated under this Act in regard to the adoption laws demands progressive sections for the Hindu society. The Act received the assent of president on 21st December, 1956. In the Act no date has been fixed for its enforcement. So under section 5 of the General Clause Act, 1894, it shall be deemed to have come into force on the said date, i.e., 21st December, 1956. This Act extends to whole India except Jammu and Kashmir.
Adoption of child by adult Hindu person is governed under the Hindu Adoption and Maintenance Act, 1956. This Act provides the procedure for maintenance and all the rights, privileges and responsibilities which attached with the relationship of adopted child and adoptive father. This Act only governs Hindus (including Buddhists, Jains and Sikhs). Provisions of this Act mandate that Hindu married couple or unmarried adults can only adopt a Hindu child either daughter or son. Main objectives of adoption are person will get old age protection by adopted child, he will perpetuate family name and fame, family property will also secured and importantly childless parents will get a person who will perform their death rites.
There are certain provisions which are specifically deal with new provisions of adoption which are as follows:-
Requisites of valid adoption
Section 6 of The Hindu Adoption and Maintenance Act, 1956 deal with it, these requisites are-
1) Adoptive father and mother must have the capacity and right to do so.
2) Person who is giving a child in adoption must have the capacity to do so.
3) Person who is giving in adoption must capable for being taken in adoption.
Capacity of male to take in adoption
Section 7 of The Hindu Adoption and Maintenance Act, 1956 deal with it, he must be of sound mind and must have attained the age of majority. If wife of a person is alive then he should not adopt a child without the consent of his wife, unless she completely and finally renounced the world or she ceased to be Hindu or competent court declared her incompetent. If a person has more than one wife, he should take consent of all wives.
Capacity of female to take in adoption
Section 8 of The Hindu Adoption and Maintenance Act, 1956 deal with it, she must be of sound mind and must have attained the age of majority. If her husband is alive then she should not adopt a child without the consent of her husband, unless he completely and finally renounced the world or he ceased to be Hindu or competent court declared him incompetent. Section 8 also recognizes the right of widow to adopt a son or a daughter for her. The result of this is that for all purposes the adoptee in effect becomes the son or daughter not only of the widow but of her deceased husband as well.[21]
Who may give in adoption?
Section 9 of The Hindu Adoption and Maintenance Act, 1956 deals with it, person is capable of giving in adoption- No person other than the mother and father of child could have the capacity to give a child in adoption. Both of them have equal rights to give a child in adoption. If both father and mother died, or completely renounced the world or competent court declared them as unsound, the guardian of the child shall have the right to give a child in adoption.
Before granting permission to guardian of the child for adoption court first checks the welfare of the child. The primary consideration for giving a child in adoption is child’s care.
Though, the term father and mother do not include adoptive father and an adoptive mother. And guardian means the person who takes care of child and his property too.
Who may be adopted?
Section 10 of The Hindu Adoption and Maintenance Act, 1956 dealz with it, for valid adoption child should be Hindu by religion. He or she must not have been adopted earlier. He or she should be unmarried, unless there is a custom or usage which permits a person to be married. He or she should not have completed the age of 15 years unless there is any custom or usage which permits a child to do so.
Age difference
If an adoption is by a male and adopted child is female, the adoptive father is at least twenty one year older than the child. And if the adoption is by a female and adopted child is male, the adoptive mother is at least twenty one year older than the child.
Thus, above mentioned are main provisions for valid adoption mentioned under Hindu Adoption and Maintenance Act, 1956. Other provision such as the ceremony of Datta Homam is not essential (section 11), adoptive father or mother shall not be deprived of their power to transfer the property merely by reason of adoption of a child (section 13), etc. are also important.
Guardianship and Wards Act, 1890
As per the name suggest the Hindu Adoption and Maintenance Act was mostly applicable for the Hindu society. The Guardianship and Wards Act, 1980 is applicable to Christian, Jews, Parsis and Muslims because their personal law do not recognize the concept of adoption.[22] Under The Guardianship and Wards Act, 1980, the only relation established after adoption is guardian and wards respectively. Under this Act, if the child attain the age of twenty one years then he shall not remain a ward, he become an independent person. Child does not have automatic right of inheritance. Adoptive parents have to leave bequeaths as according to their wish which will be contested by the any ‘blood’ related child. The enactments or provisions of this Act remain silent on the adoption of orphan, abandoned, and surrendered child. There are no codified provisions under this Act for adoption. As a result of this several irregularities and misconceptions appeared in respect of the custody guardianship and adoption of these kinds of children, which re prejudicial to the interest of the children. In the Hindu Adoption and Maintenance Act, 1956, a person adopted has a single set of parents, here a minor and his property could have more than one guardian. Court appoint guardian by using its discretionary power and mainly considered the minors interest. The minor’s preference is also being taken into consideration.
The Juvenile Justice (Care and Protection of Children) Act, 2000
This Act provide legal definition of child and it will follows under all legal aspects child is a person who has not completed eighteen years of age.
This Act is applicable to all Indian citizens. Children of same sex can be adopted under the provisions of this Act. This Act confers status between adopted child and adoptive parents as parent and child and not as a guardian and ward. This Act was designed for the care, protection and development of juvenile in conflict of law and child in need of care and protection.
The main aim of adoption is to provide a child permanent substitute family, who can’t be cared for by his biological parents with. The adoptive family of a child has responsibility to provide him care and protection. Child, who is abandoned, surrendered or orphan can be adopted for his/her rehabilitation through such mechanism as prescribed under the Act. For adoption of abandoned, surrendered or orphan children, certain guidelines shall be followed; the state government shall establish specialized adoption agencies in each district.
Under section 41 of the Act, the guidelines issued by Central adoption resource authority (CARA) and notifies by central government, shall apply to all matters of adoption. The Children’s institutions and homes established by state government or voluntary organizations for children in need of care and protection who are orphan, abandoned or surrendered, should ensure that these children are declared completely free for adoption by the Committee (Child Welfare Committee).
- No child shall be offered or given for adoption unless these conditions fulfilled:-
- If a child is abandoned, the two members of the committee must declare child legally for placement in adoption.
- If a child is surrendered one, the period of two month for reconsideration by parents is lapsed.
- If a child who understand and express his consent, his consent shall be taken for adoption.
- Parents who are adopting a child must be childless couple.
Indian Constitution
Constitution of India tried hard to provide every right to child with regard to his care and protection. The constitution of India not specifically deal with the provisions of adoption but it deal with the provisions having children care and protection. It also deals with the provisions of education of children and with provisions against exploitation.
Chapter 3 of Indian Constitution provides fundamental rights to every citizen of India. Article 21 of Indian constitution provides a right to every citizen to live with dignity. It also provides a right to every child to live with dignity.
Article 24 of Indian constitution provides a right against exploitation for the children of below 14 years of age.
Article 39 on Indian constitution refers that state shall make policy with regard to the welfare of the child. These policies will give them a sense of equality and protection. Youth are protected against the exploitation and force labour.
Article 44 of Indian constitution dealt with Uniform Civil Code. It will not infringe the person’s fundamental right of religion. India being party to CRC (Convention on the Rights of a Child), such uniformity is necessary for the rights of adoptive children can well be enhanced and protected. If a Uniform Civil Code is established under the provisions of law, like the Hindu women, the women of other religions will also be allowed to adopt. With the enactment of a Uniform Civil Code, the status of Indian women will definitely increase or become better in all aspects of social life. Uniform civil code is still needed in India. In today’s time it is only followed in Goa. A secular India definitely needs a uniform civil code in the country.
Article 45 of Indian constitution deals with the provision where state shall provide early childhood education and care to all children until they complete the age of six years. [23]
Role of Central adoption resource authority (CARA) in adoption:-
CARA is a statutory and autonomous body of Ministry of Women and Child Development in the Government of India. It is a nodal body for adoption. It controls and monitors the adoption process in India. It primarily deals with the adoption of surrendered, orphan and abandoned children. It is a central authority to deal with the inter country adoption.
Adoption among different religions in India
Every religion has its own laws regarding adoption. There is no uniform law of adoption. Though adoption is the legal process of actual giving and taking of a child, it also forms the subject matter of personal laws. Thus, Muslims, Christians, and Parsis do not have their adoption laws, they approach to the court under The Guardians and Wards Act, 1890. They can take the child under the provisions of the said Act. When child grew up and attain age of majority, he would not under the obligation of the adoption law at all. And this child also does not have right of inheritance over the property of guardians.
Under the laws of The Guardians and Wards Act, 1890, a foreigner can also adopt a child. If the guardian wants to take the child to outside the country, he shall take the court’s permission and that process will govern under the adoption process in foreign law. Hindu law, Muslim law and The Guardians and Wards Act, 1890, are containing three different provisions of adoption.
Adoption under Hindu Law
Ancient Hindu law as well as present Hindu law system contains the provision regarding the adoption. In Ancient time adoption laws were prevail under different texts that may be Manusmiriti, Vashistha , Sekala etc. and in present system of Hindu law adoption laws mainly deal under The Hindu Adoption and Maintenance Act, 1956, this contains codified laws of adoption. It was and it is mentioned under the Hindu laws that adopted child will act as natural born child. Every right as similar to natural born child will be presented to adopted child also. He will also get the right of inheritance over the property of his adoptive father.
In early adoption laws person could not adopt a female child but after the commencement of The Hindu Adoption and Maintenance Act, 1956 female child also included under the same. She will get all rights as similar to the rights of adopted son. Adopted child not only create a relation between child and parents, even it creates a new family for an adopted child.
This Act contains capacity of person to adopt a child and requisites which the child should fulfill for being given in adoption. All the important aspects regarding the procedure of adoption of a child mentioned under the same Act. Adoption under Hindu law includes Budhists, Jains, Sikhs and Hindu religion.
Adoption under Muslim law
Muslim law does not prescribe any specific law for adoption. Concept of guardianship governed under The Guardians and Wards Act, 1890. Holy book of Islam i.e., mentioned that restoration of the orphans when they come of age, their substance do not substitute bad for good nor devour their substance by adding it to your own, for this is an enormous crime.
Thus, Muslim law does not contain any provisions regarding adoption. A Muslim person can take a child only as its guardian, after attaining the age of majority child would not bound under the conditions of guardian and wards. Court appoint guardian, and the main consideration of the court is child’s welfare. Guardian is a person who having the care of the person of a minor or of his property, or of both.
In case of Muhammad Allahdad Khan v. Muhammad Ismail,[24] court held that there is nothing in the Muslim law as similar to adoption as recognised in Hindu and roman system. The Muslim law does not recognise adoption as a filiation. In 1972, the adoption of children bill was introduced in the parliament in order to make a uniform law of adoption applicable to all citizens of India regardless of their religion. However, the bill was withdrawn by the government in 1978 and could not be passed.
Adoption under Christian and Parsi Religion
The laws of Christian and Parsi religion do not recognise the provisions of adoption. A person who belongs to these religions can adopt a child from orphanage with the permission of court under The Guardians and Wards Act, 1890. A Christian person has no adoption law. Although, adoption is a legal process of taking a child, it forms the subject matter of personal laws. Christian and Parsis both don’t have adoption laws and they have approach to court under The Guardians and Wards Act, 1890. National commissions on women and child care stressed on the need of uniform adoption laws.
Christian and Parsi both can take a child under a said act only for foster care. When child grew up or become a major person, he can break all the connections between him and guardian. He will not have any right of inheritance.
It is clearly mentioned under the act that father’s right over the child is primary one unless the court finds him incompetent. The Act of guardians and wards provides that court must take into consideration the welfare of the child. The guardian is mainly appointed for the welfare and care of the child. [25]
Conclusion
Children are the supreme assets for nation building. Their upbringing is the responsibility of nation, whether the child is abandoned, neglected, or surrendered, and every single child should get proper facility of living. Every child should have right to be given in adoption.
The adoption laws for Hindus changes enormously. Position of girl as well as woman changed with the passage of time. The adoption laws grew as per the need of the changing society. It is unreasonable fact that Muslim, Christian and Parsi people cannot adopt a child because of absence of uniform civil code. When uniform civil code implemented in the country then religion other than Sikh, Buddhists, Jain, and Hindu religion, will also get a right to adopt a child. Uniform civil code will also improve the life of child and the child less parent. A child will get a new family. A child will get proper education, care and food facilities too. Overall life of child will improve. As we all know that uniform civil code is very difficult criteria of law but if it is enacted it will bring so much happiness to childless parents and parentless child. It will definitely create a new life by way of adoption for a child.
None of the religion other than the Hindu religion has their laws for adoption. Adoption is mainly for a noble cause. It brings happiness for an adopted child as well as for the adoptive father and mother. It is legal process of creating a good relationship between a child and adoptive parents. It is a program where child is treated as natural born child. He/she will get every right as similar to natural born child. There is no difference between natural born child and adopted child. Important part of adoption is that the child could not renounce the adoption. Whereas, The Guardian and Wards Act, 1980, child has right to renounce the guardianship procedure after attaining the age of majority. The procedure of adoption under Hindu law is governed under the Act of The Hindu Adoption and Maintenance Act, 1956.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
Reference
[1] Deepak kumar verma, Hindu adoption laws and interpretation by different High Court, National Judicial Academy, Bhopal, (June, 04, 2019, 11:45am), http://www.nja.nic.in/
[2] RK Agrawal, Hindu law,176,(central law agency,25th ed. 2016)
[3] Neeraj Meena, Adoption laws in India: challenging Existing Law, Manupatra (June, 7,2019, 10:14 am), http://docs.manupatra.in/newsline/articles/Upload/E8EFE493-114B-4E5B-A014-682EB1729301.pdf
[4] Supra note 2
[5] Bal gangadghar tilak v. Sri niwas pandit , 42 IA 135
[6] Atma rao v. Madho rao , 6 All. 176 (FB)
[7] Supra note 1 at 177
[8] Supra note 1 at 207
[9] Section 11, Hindu Adoption and Maintenance Act, no. 78, acts of parliament, 1956 (India).
[10] Asila v. Nirode, 20 CWN 901
[11] Arumitti perazee v. Subbarayadu, 44 Mad. 655
[12] Shib deo v. Ram Prasad, (1924) 46 All. 637
[13] Surendra nath v. Bhola nath, (1941) 1 Cal. 139
[14] Bal gangadghar tilak v. Sri niwas pandit, 42 IA 135
[15] Rungamma Vs. Atchamana, (1846) 4 M.I.A. p. 1
[16] (1876) 3 lA 72.
[17] Trikanganda MaUanauda Vs. Shivappa PatU, (1943) ILR.Bom.706
[18] (1964) WR 71.
[19] Shamsher Singh Vs. Santabai, (1901) 25 ILR Bom 351
[20] (1943) ILR Mad. 3(1)9
[21] Abhaya kumar v. Sarda dai, AIR 1995 Ori. 212
[22] Supra note 3
[23] Supra note 3
[24] ILR (1888) 12 ALL 289
[25] Romit Agrawal, Adoption: Under Hindu, Muslim, Christian and Parsi Laws, Legal service India (June, 10, 2019), http://www.legalserviceindia.com/articles/hmcp_adopt.htm
