ADOPTION LAW IN INDIA
By: Pooja Sharma
Tags: Adoption, India, Law, Education, Knowledge

Word adoption is a kind of parent-child relationship, this relationship is developed through a legal and a social process. The main aim of adoption is an offer of parent protection of an abandoned, destitute and neglected child. It is not a nation adoption but it is also an international adoption that is well accepted. It is considered a worldwide institution.

“Adoption” means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges, and responsibilities that are attached to a biological child. Section 2(2) of Juvenile Justice (CARE AND PROTECTION OF CHILDREN) Act, 2015. International adoption- adoption in which an individual or couple becomes the legal and permanent parents of a child born in another country.

Adoption in India is dealing with three major Legislation:

Hindu Adoption and Maintenance Act, 1956

Among Hindus, adoption has been practice for thousands of years. In the early days, a childless couple adopts the child from their own family usually adopt boy child for ensuring the continuity of the family and to avoid alienation of the property so there was a kind of gender discrimination in the process of adoption. In order to overcome this gender discrimination, the Hindu Adoption and Maintenance Act came into existence. The Act to some extent reflexes the principles of equality and social justice by removing several gender-based discrimination procedures.

Chapter II of the Hindu Adoption and Maintenance Act, 1956 deals with Provisions of Adoption.

Section 7 deals with the capacity of a male Hindu to take in adoption. Any male Hindu who is sound mind and is not a minor has the capacity to take his son/daughter to adoption. But if he has a living wife then her consent is necessary except in certain situations like if the wife has renounced the world or has ceased to be a Hindu or unsound mind. If there is more than one wife then the consent of all the wives is necessary. In the case of divorce, consent is not necessary but in the case of Judicial Separation, consent would be necessary.

Section 8 deals with the capacity of a female Hindu to take in adoption. Any female Hindu who is married, unmarried, sound mind, and is not minor has the capacity to take her son/daughter to adoption. But if she is married, she is not able to adopt a child unless her marriage has been dissolved or her husband is dead or her husband renounces the world or he converted to any other religion or he is declared an unsound mind by a competent court.

Section 9 deals with a person capable of giving in adoption. Only the father or mother or guardian of the child has the capacity to give the child in adoption. If the father is alive then his alone have right to give in adoption the consent of the mother is necessary except certain situation like if the wife has renounced the world or has ceased to be a Hindu or unsound mind. And mother may give the child in adoption if the father is dead, renounce the world or he converted to any other religion or he is declared an unsound mind by a competent court.

When both the parents are dead or renounce the world or converted to any other religion or they declared an unsound mind by a competent court. The guardian of the child may give the child in adoption with the previous permission of the court.

Section 10 deals with the persons who may be adopted. Such qualifications are:

· Child must be a Hindu.

· He has not already been adopted.

· Not been married unless custom or usage applicable to the parties permits.

· Has not completed the age of fifteen years unless custom or usage applicable to the parties' permits.

There is a bar imposed by section 10 that is a married person cannot be adopted. But the case is different where there is some custom among Jats of Punjab and Haryana in having a legal sanction and judicially recognized where under the custom permits the adoption of a married person Amar Singh v. Tej Ram (1982 (84) Punj LR2387)

Section 11 deals with other conditions for a valid adoption.

· If adopting a son then the adoptive father or adoptive mother by whom the adoption is made must not have the living Hindu son, son’s son’s or son’s son’s son. If adopting a daughter then the adoptive father or mother by whom the adoption is made must not have a living Hindu daughter or son’s daughter.

· Adoption is by male and the person to be adopted is a female, then the adoptive father is at least 21 years older than the person to be adopted; adoption is by female and the person to be adopted is a male, then the adoptive mother is at least 21 years older than the person to be adopted.

Provision of section 11 requiring the age difference between adoptive mother and adoptive son to be at least 21 years is mandatory in nature. The word ‘must’ cannot be read as ‘may’. This breach is fatal to adoption; Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang Narayan Kanse, AIR 2006 BOM 123.

· Same child may not be adopted simultaneously by two or more parents.

· Child to be adopted must be actually given and taken in adoption with an intent to transfer the child from the family of birth to the family of its adoption.

These are the condition in which adoption has been made. India is a country where there is too much population and there is a huge number of unwanted children. So, there are certain provisions and laws made for the rights of the parent as well as the children.