The Current Landscape of Adoption Laws and Regulations Across India

Legal Frameworks for Adoption in India

Unlike many countries with a single, unified adoption law, India’s legal framework for adoption is multi-faceted, primarily stemming from two major statutes: the Hindu Adoptions and Maintenance Act, 1956 (HAMA), and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). Additionally, the Guardians and Wards Act, 1890 (GWA), while not an adoption law per se, sometimes plays a role in guardianship before a formal adoption.

The Hindu Adoptions and Maintenance Act, 1956 (HAMA)

HAMA is a personal law that governs adoption for Hindus (including Buddhists, Jains, and Sikhs). It allows for the adoption of a child by a Hindu individual to create a legal parent-child relationship.

• Key Characteristics:
  • It only permits the adoption of Hindu children by Hindu parents.
  • It allows for “direct” adoption, where a family can adopt a relative’s child or an identified child, provided all conditions are met.
  • It specifies conditions for the capacity of the adopter (e.g., sound mind, not a minor, no living biological or adopted child of the same gender), the person giving in adoption (father, mother, or guardian), and the person being adopted (must be Hindu, unmarried, and below 15 years, unless custom permits otherwise).
  • An adoption under HAMA creates a complete severance from the birth family and full integration into the adoptive family, with all rights and duties.
• You can access the full text of the Hindu Adoptions and Maintenance Act, 1956 on the India Code website.

The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act)

This is the primary secular law governing adoption in India for orphaned, abandoned, and surrendered (OAS) children, irrespective of their religion. It is universally applicable and is the framework under which the Central Adoption Resource Authority (CARA) operates.

• Key Characteristics:
  • It covers children who have been declared “legally free for adoption” by Child Welfare Committees (CWCs).
  • It applies to Prospective Adoptive Parents (PAPs) of any religion or no religion.
  • It streamlines the process through Specialised Adoption Agencies (SAAs) and CARA, ensuring transparency and accountability.
  • It is the only law under which inter-country adoptions are facilitated.
  • It mandates a comprehensive process involving home study, matching, and court orders, prioritizing the best interests of the child.
• The full text of the Juvenile Justice (Care and Protection of Children) Act, 2015 is available on the India Code website.

The Guardians and Wards Act, 1890 (GWA)

While not an adoption law, the GWA is used in specific scenarios where a child is taken into guardianship rather than full adoption. This Act is typically used by individuals who are not eligible for adoption under HAMA or the JJ Act (e.g., a non-Hindu wanting to take care of a Hindu child without formally adopting them, or in cases of third-party guardianship where adoption might not be the immediate goal).

• Key Characteristics:
  • It only grants guardianship rights, not full parental rights. The child retains their connection to their biological family (e.g., inheritance rights).
  • It does not create a complete parent-child relationship as adoption does.
  • It is generally invoked as a precursor to formal adoption for foreign parents or those not falling under HAMA, who then proceed to adopt the child in their home country.
• The Guardians and Wards Act, 1890 can be accessed on India Code.

Who Can Adopt in India? (Prospective Adoptive Parents – PAPs)

The eligibility criteria for Prospective Adoptive Parents (PAPs) vary slightly depending on whether the adoption is under HAMA or the JJ Act, but broadly include:

• Single Individuals (Male and Female):

• • Single Female: A single female can adopt a child of any gender. She must meet the age and financial eligibility criteria set by CARA. This provision is explicitly allowed under the JJ Act.
  • Single Male: A single male is eligible to adopt a child, but cannot adopt a girl child under the JJ Act. This distinction is often cited as a measure to protect girl children from potential exploitation, though it has faced debate.
  • Both single males and females must be financially stable, physically and mentally fit, and have a supportive environment. For specifics on single mothers’ rights, including adoption, you may refer to comprehensive guides on https://jsrohilla.in/single-mothers-legal-rights-in-india/“

• Married Couples:

• • Couples must be in a stable marital relationship for at least two years.
  • Both spouses must consent to the adoption.
  • The combined age of the prospective adoptive parents (PAPs) must fall within specific limits set by CARA, which vary depending on the age of the child being adopted. For example, for a child up to 2 years, the composite age of the couple should not exceed 85 years. For a child above 8 and up to 18 years, the composite age should not exceed 110 years.
  • They must be physically, mentally, and emotionally stable, and financially capable.
  • Couples with two or more children are generally considered for special needs children or hard-to-place children, unless they are relative or step-parent adoptions.

• NRIs, Overseas Citizens of India (OCIs), and Foreign Citizens:

• • NRIs and OCIs: Are generally treated on par with resident Indians for adoption processes under the JJ Act through CARA. They follow the same online registration process and eligibility criteria, but their home study reports are prepared by a foreign adoption agency (AFAA) or a central authority in their country of residence. They can adopt both OAS children and relative children from India.
  • Foreign Citizens: Can adopt only OAS children from India. They must be residents of a country that is a signatory to the Hague Adoption Convention and must route their application through a licensed or authorised adoption agency in their home country, which then coordinates with CARA. The process involves a home study report, matching, and court orders, followed by post-adoption follow-ups.
  • For detailed eligibility criteria, visit the official CARA website on Eligibility for Prospective Adoptive Parents.

Who Can Be Adopted? (Adoptive Child)

The child being adopted also needs to meet certain criteria as per the law.

• Children Declared Legally Free for Adoption (Under JJ Act):

• • This category includes Orphaned, Abandoned, or Surrendered (OAS) children.
  • Orphaned: A child without a biological or adoptive parent or legal guardian.
  • Abandoned: A child deserted by biological or adoptive parents or guardians, who has been declared abandoned by the Child Welfare Committee (CWC) after due inquiry.
  • Surrendered: A child voluntarily given up by their biological parents due to physical, emotional, or social factors beyond their control, and declared surrendered by the CWC.
  • These children are placed in the care of Specialised Adoption Agencies (SAAs) and are the primary focus of the CARA-regulated adoption process.

• Children of Relatives (Under JJ Act & HAMA):

• • The JJ Act (specifically Section 56(2)) allows for the adoption of a child by a relative. This typically involves cases where a child’s biological parents wish for their child to be adopted by a close relative (e.g., aunt, uncle, grandparent) due to specific circumstances, ensuring the child remains within the extended family.
  • HAMA also allows for relative adoptions among Hindus, provided the conditions are met.

• Children in Foster Care:

• • Children in long-term foster care who have been declared legally free for adoption can also be adopted.

The Adoption Process in India (Under JJ Act/CARA)

The adoption process for orphaned, abandoned, and surrendered children under the JJ Act, regulated by CARA, is systematic and designed to be child-centric.

• 1. Registration with CARA:
  • Prospective Adoptive Parents (PAPs) must register online on the CARINGS (Child Adoption Resource Information and Guidance System) portal on the official CARA website. They will fill out an application form and upload necessary documents.
• 2. Home Study Report (HSR):
  • After registration, a Specialised Adoption Agency (SAA) from the PAPs’ district is assigned to conduct a Home Study Report. A social worker visits the PAPs’ home to assess their suitability, including their living environment, financial stability, health, family background, and motivation for adoption. This is a crucial step to ensure the child will be placed in a safe and nurturing environment.
• 3. Seniority and Waiting Period:
  • Once the HSR is approved, the PAPs’ seniority for adoption is fixed from the date of registration. The waiting period can vary significantly depending on the age, gender, and health status of the child PAPs are willing to adopt.
• 4. Referral of a Child:
  • Based on their preferences and seniority, PAPs receive a referral of a child from the CARINGS system. The referral includes the Child Study Report (CSR) and Medical Examination Report (MER) of the child. PAPs have a limited time (usually 48 hours) to review the child’s profile and express their interest.
• 5. Acceptance and Pre-Adoption Foster Care:
  • If PAPs accept the referral, they visit the SAA to meet the child. If all goes well, the child is moved to pre-adoption foster care with the PAPs, allowing for bonding. This period is typically 15-30 days.
• 6. Filing of Petition in Court:
  • After the successful pre-adoption foster care, the SAA files an adoption petition on behalf of the PAPs in the District Magistrate’s court (or Family Court/Civil Court, as applicable) in the district where the SAA is located or where the child resides. The petition includes all required documents.
• 7. Court Order:
  • The District Magistrate (DM) (or judge) reviews the petition, assesses the Home Study Report, Child Study Report, and other documents. The DM may also interview the PAPs and sometimes the child (if of understanding age). Upon satisfaction that the adoption is in the child’s best interest, the DM issues the adoption order. This order legally formalizes the adoption, making the child the legal offspring of the adoptive parents.
• 8. Post-Adoption Follow-up:
  • The SAA conducts regular post-adoption follow-up visits (usually annually for a couple of years) to ensure the child’s well-being and integration into the new family.

 Specifics of Adoption Under HAMA (Hindu Adoptions and Maintenance Act)

While the JJ Act primarily handles institutional adoptions, HAMA remains crucial for specific situations among Hindus.

• Conditions for Valid Adoption:

• • The person adopting must have the capacity and right to adopt (e.g., a male Hindu with a living wife generally needs her consent; if he has a son, he cannot adopt another son, etc.).
  • The person giving in adoption must have the capacity to do so (biological father, mother, or guardian under certain conditions).
  • The child being adopted must be capable of being taken in adoption (Hindu, unmarried, usually below 15 years, and must not have already been adopted).
  • The adoption must comply with other conditions like actual giving and taking of the child, and religious ceremonies (though often symbolic now).

• Capacity to Adopt and Be Adopted:

• • A male Hindu can adopt a son or daughter if he has no living legitimate son, son’s son, or son’s son’s son (for adopting a son), or no living legitimate daughter or son’s daughter (for adopting a daughter). If he has a wife living, her consent is required.
  • A female Hindu (unmarried, widow, or divorcee) can adopt a son or daughter if she has no living legitimate son, son’s son, or son’s son’s son (for adopting a son), or no living legitimate daughter or son’s daughter (for adopting a daughter). A married woman cannot adopt independently.
  • A child (son or daughter) can be adopted if they are Hindu, have not been adopted before, are unmarried, and have not completed the age of fifteen years (unless a custom or usage permits an older age).

• Effects of Adoption:

• • An adopted child under HAMA is deemed to be the legitimate child of the adoptive parents for all purposes from the date of adoption.
  • The adopted child severs all ties with their birth family and becomes part of the adoptive family with all rights and responsibilities, including inheritance rights.
  • An Adoption Deed is often executed to formalize and document the adoption under HAMA, which is then registered.

• Distinction from Adoption under JJ Act:

• • HAMA caters to a specific religious community (Hindus), while the JJ Act is secular.
  • HAMA allows for private/direct adoptions, while the JJ Act mandates adoptions of OAS children through CARA-recognized agencies.
  • The procedural requirements differ significantly.

 Adoption by Unmarried Single Woman

Indian law, particularly the Juvenile Justice (Care and Protection of Children) Act, 2015, explicitly allows single women to adopt a child. This is a progressive step that recognizes the diverse family structures in modern society.

• Legal Provisions and Eligibility:

• • A single woman is eligible to adopt a child of any gender.
  • She must meet the age criteria specified by CARA (e.g., maximum age of 40 years for a child up to 2 years, up to 55 years for a child up to 18 years).
  • She must be physically, mentally, and emotionally stable, and financially capable of raising a child.
  • The process for a single woman is largely similar to that for a couple, involving registration with CARA, a home study report, child referral, and court procedures.
  • For more details, you can consult resources on Single Mothers Legal Rights in India.

• Considerations and Challenges:

• • While legally permissible, single women may face practical challenges, such as societal perceptions or the need for a strong support system.
  • The waiting period for a girl child can sometimes be longer due to higher demand.
  • The home study report will pay close attention to the support structure available to the single adoptive parent.

Inter-Country Adoption

Inter-country adoption refers to the adoption of an Indian child by PAPs who are citizens of a foreign country, including Non-Resident Indians (NRIs) and Overseas Citizens of India (OCIs) residing abroad. This process is strictly regulated by CARA under the JJ Act and the Hague Convention on Inter-country Adoption, 1993, which India ratified in 2003.

• Process for NRIs/OCIs:

• • NRIs and OCIs residing abroad must initiate their adoption process by approaching an authorized foreign adoption agency (AFAA) or the Central Authority in their country of residence.
  • This agency conducts their home study report and then registers their application online with CARA via the CARINGS portal.
  • The subsequent steps, including child referral, matching, and court procedures in India, generally follow the domestic adoption process, but with additional inter-country coordination.
  • For more information, refer to guides on Adoption in India for NRIs.

• Process for Foreign Citizens:

• • Foreign citizens wishing to adopt an Indian child must be residents of a country that is a signatory to the Hague Adoption Convention.
  • They must apply through a licensed adoption agency in their home country, which then forwards their application to CARA.
  • CARA, in coordination with Indian SAAs, facilitates the matching of a legally free child.
  • The court process in India grants the adoption order, and subsequently, a No Objection Certificate (NOC) is issued by CARA, allowing the child to emigrate to the adoptive parents’ country.
  • Post-adoption reports are mandatory and sent to CARA by the foreign agency for several years.
  • For general guidelines, the CARA website on Inter-Country Adoption is the primary source.

• Role of Central Adoption Resource Authority (CARA):

• • CARA is the nodal body for adoption of Indian children. It monitors and regulates both in-country and inter-country adoptions.
  • It maintains the CARINGS database, which connects PAPs with children declared legally free for adoption.
  • CARA ensures compliance with national and international adoption regulations, prioritizing the welfare of children and preventing child trafficking. You can find detailed information on the official CARA website.

 Key Considerations and Challenges in Adoption

While the joy of adoption is immense, the journey can present several considerations and challenges:

• Waiting Periods: The demand for healthy, young children (especially girls) often exceeds the supply of legally free children. This can lead to significant waiting periods, sometimes extending to several years. Patience is key.
• Legal Complexities: Navigating the different legal frameworks (HAMA vs. JJ Act), understanding eligibility nuances, and ensuring meticulous documentation can be overwhelming. Each case has unique elements that require careful legal attention.
• Matching Challenges: PAPs’ preferences (e.g., age, gender, health status of the child) can impact the time it takes to find a suitable match. Flexibility in preferences can sometimes shorten the waiting period.
• Post-Adoption Support: The transition period after adoption can be challenging for both the child and the adoptive family. Support groups, counselling services, and post-adoption follow-ups by SAAs are crucial.
• Disclosure: Deciding when and how to tell an adopted child about their adoption is a sensitive issue, often requiring careful thought and professional guidance.
• Medical Information: While medical reports are provided, comprehensive medical histories of biological parents are often unavailable for abandoned or surrendered children, which can be a concern for some PAPs.

Role of an Adoption Lawyer

Given the legal complexities and emotional intensity of the adoption process, engaging an experienced adoption lawyer is highly recommended. An adoption lawyer can:

• Provide Expert Guidance: Explain the relevant legal framework (HAMA, JJ Act, GWA), eligibility criteria, and the specific process applicable to your situation.
• Assist with Documentation: Help in preparing and organizing the extensive documentation required for registration, home study, and court petitions. This includes drafting an Adoption Deed where applicable.
• Navigate Court Procedures: File the adoption petition, represent you in court, handle legal formalities, and ensure the court order is obtained smoothly.
• Liaison with Agencies: Coordinate with Specialised Adoption Agencies (SAAs) and CARA, especially for inter-country adoptions.
• Troubleshooting: Address any legal hurdles or challenges that may arise during the process, such as discrepancies in documents or complex family situations.
• Advise on Post-Adoption Legalities: Guide you on name change procedures, birth certificate modifications, and the child’s rights within the adoptive family.

Firms like Bestdivorcelawyer.in offer comprehensive legal support for various family matters, including Adoption, Adoption by Unmarried Single Woman, and complex International Matrimonial Matters involving adoption. While surrogacy has specific regulations under the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021, these are distinct from adoption, although some children born through surrogacy may eventually enter the adoption stream if not accepted by the commissioning parents. An expert can clarify these nuances.

FAQs

1. What are the main laws governing adoption in India? The main laws are the Hindu Adoptions and Maintenance Act, 1956 (HAMA) for Hindus, and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) for orphaned, abandoned, and surrendered children of all religions.
2. Who can adopt a child in India? Both single individuals (with some gender restrictions for single males) and married couples can adopt, provided they meet age, financial, and stability criteria set by CARA.
3. Who can be adopted in India? Children declared legally free for adoption (orphaned, abandoned, surrendered) under the JJ Act, and in some cases, children adopted directly by relatives under HAMA or the JJ Act.
4. What is the role of CARA in adoption? CARA (Central Adoption Resource Authority) is the nodal body that regulates and monitors all in-country and inter-country adoptions of Indian children, primarily under the JJ Act.
5. Can single women adopt a child in India? Yes, a single woman can adopt a child of any gender, provided she meets the eligibility criteria set by CARA.
6. What is inter-country adoption? Inter-country adoption is when an Indian child is adopted by foreign citizens, NRIs, or OCIs residing abroad. It is strictly regulated by CARA under the JJ Act and the Hague Convention.

 

Conclusion

Adoption in India is a beautiful yet legally intricate journey designed to provide a secure and loving family for children in need. With robust legal frameworks like the Hindu Adoptions and Maintenance Act and the Juvenile Justice (Care and Protection of Children) Act, supported by the Central Adoption Resource Authority, India strives to make the process transparent, ethical, and child-centric.

For prospective parents, embarking on this path requires patience, resilience, and a thorough understanding of the legal requirements. Whether you are a single individual, a married couple, an NRI, or a foreign citizen, the legal provisions are in place to facilitate your dream of building a family through adoption. By carefully navigating the process, often with the indispensable guidance of an experienced adoption lawyer, you can ensure a successful and legally sound adoption, bringing immense joy and stability to both the child and your new family.

For legal assistance, call 9461620006 or visit www.bestdivorcelawyer.in today!