Deergh Uppal
Adoption is defined as the permanent legal transfer of all parental rights from one individual to another individual or couple. There is no distinction between the rights of adoptive parents and birth parents, and all the social, legal, mental, and kinship benefits of biological children are given to adopted children.
Adoption in India
In India, the tradition and custom of adoption goes back to ancient times. While the purpose of the act has changed, the act of adoption still remains the same. Adoption was generally viewed as a sacramental act.
Not only among the author, but also among the judges, there has been a small controversy whether adoption has a secular motive that dominates or whether the religious or spiritual action predominates.
There were several laws relating to adoption under the old Hindu law, which could only be justified on the grounds that adoption was a sacramental act. In the presence of the Hindu Adoption & Maintenance Act , 1956 has explicitly starred in all religious and sacramental aspects of adoption and made adoption a secular institution.
All adoptions after 1956 are secular and legal, and the provisions of the act must be checked for validity.
In addition, the personal laws of Muslims, Christians, Parsis and Jews in India do not permit adoption. Maybe, by the Guardianship and Wards Act, 1890, they typically opt for guardianship of a boy.
Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are permitted to adopt a child formally and legally. As part of the Hindu Code Bills, the Hindu Adoption and Maintenance Act of 1956 was enacted in India. This led to the implementation of a few reforms which liberalized the adoption system.
HINDU LAW
Hindu law is the only law that gives single parents and couples the power to adopted a child as an equal to a natural child because of the notion that a son is necessary for the family’s moral and material well-being.
Earlier, Hindu law allowed the adoption of only a male child and many rules and limitations on Caste and Gotra were enforced. Under Hindu law, it is not possible to adopt a female child. In comparison, it was only the male who had the right to adopt, and his wife’s opposition or approval was immaterial.
Such constraints have changed with the course of time. In today’s multicultural culture, gender prejudices have declined to a large degree.
At present, under modern Hindu law, any Hindu male or female has the right to adopt whether he or she has achieved the majority and is of sound mind. Mostly, in the Hindu Adoptions and Preservation Act of 1956, all of these statutes, rules and regulations were illustrated.
Hindu Adoption and Maintenance Act, 1956
The Hindu Adoption and Preservation Act, 1956, was enacted after independence and is part of the codification and modernization of Hindu law. By representing the ideals of equity and social justice, this act eliminates many unequal variables dependent on gender.
The necessary requirements for legitimate adoption are specifically laid out in Section 6 to Section 11 of the Hindu Adoption and Maintenance Act.
The Statute, Section 6, i.e., Legal adoption specifications clarify that no adoption is valid unless: —
- The person adopting has the capacity and also the right to take in adoption.
- The person giving in adoption has the capacity to do so.
- The person adopted is capable of being taken in adoption.
- The adoption is made with the other conditions of the act.
Section 7 and Section 8 of the Act define the right of Hindu men and women to take part in adoption. The overall state of mind refers to emotional unsoundness.
All conditions of hysteria, including epilepsy, idiocy and lunacy, will fall under the unsoundness of the mind. There is also the right to adopt a Hindu male or woman married under the Special Marriage Act.
Whether he is a bachelor, widower, divorcee or a married person, a major Hindu male of sound mind can adopt it. For a married Hindu male, obtaining the wife’s consent is mandatory. In the event that he has more than one partner, both wives require permission.
An adoption made without the wife’s permission is invalid. The adoption is similarly invalid if the consent of the wife living with the husband is taken, but the consent of the wife living separately is not taken.
Similarly, the act makes a radical break from the old law in the event of adoption by a wife by allowing a Hindu woman to adopt herself in her own right, but not a married woman.
A Hindu single woman, widow or divorcee has the right to adopt under the act. In Vijaya Laxman Vs V.B.T Shankar, it was held that when a widow adopts a child, she does not need to consider the co-permission widow’s because she adopts the child in her own capacity. There is no ability for a married woman to adopt.
Without the permission of her husband, she cannot adopt Eve. The position, however, is that a married woman is completely unable to adopt, except in the following cases: —
- If her husband has ceased to be a Hindu.
- If he has finally and completely renounced the world.
- If he has been declared by a court of competent jurisdiction to be of unsound mind.
Section 9 of the Act explicitly addresses the person who is capable of giving at the time of adoption. It states that no male, with the exception of the child’s father or mother or guardian, shall be able to give the child at the time of adoption.
In the event of adoption, the father or mother shall have an equitable right to send the son or daughter at the time of adoption.
It also provides that, unless one of them has ceased to be a Hindu or has been found by the court of competent jurisdiction to be of unsound mind, those rights shall not be exercised by one of them with the consent of the other.
The father and mother are now dead or either renounced the planet or deserted the child or have been found to be of unsound mind by the court of competent jurisdiction. In that case, the child’s guardian will, with the consent of the court, provide the child for adoption.
When giving at the time of adoption, the required property must ensure that the adoption of the child is absolutely for the well-being of the child and that due care is due to the child’s need for this reason, taking into account the child’s age and dedication, etc.
The person who may be adopted is stated in section 10. For the child being given at the time of adoption, these conditions should be met –
- The child must be a Hindu.
- The child has not already been adopted.
- He or She is not married unless there is a custom, a usage applicable to the parties which permits person who are married or been taken in adoption.
- Child has not completed the age of 15 years unless there is a custom, a usage applicable to the parties which permits persons who have completed the age of 15 years to be taken in adoption.
Any other conditions for a legal adoption are stated in section 11. The following conditions must be met with any adoption: —
- If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son by any relation (whether by legitimate blood relationship or by adoption) living at the time of adoption;
- If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter by any relation living at the time of adoption;
- If a female is to be adopted by a male, the age difference between the adoptive father and the daughter must be twenty-one years;
- If a male is to be adopted by a female, the age difference between the adoptive mother and the son must be twenty-one years;
- The same child cannot be adopted simultaneously by two or more persons;
- The adoption must be given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption.
Section 12 defines the consequences of adoption, and the adoption of an infant under Hindu law (both old and new) means that the child is fully separated from the natural born family and transplanted into a new family.
The only relation he maintains with the natural family is that, in his natural family, he can not marry any female he may not have married before adoption.
Given that Section 12 of the Act states that any assets vested in the adopted child prior to adoption shall continue to be vested in such a person subject to a duty, provided that any assets attached to the possession of those assets, including certain provisions, are to be retained in the family of his/her birth.
For example – Two twins, X and Y, for instance, inherited property from their mother. His father was eventually put up for adoption. Prior to adoption, X will continue to be the master of the land inherited from him.
An adopted son can divest an individual before adoption in the hope that property is vested. For all purposes, the adopted child is considered to be the adopter’s child. For all purposes of importance, his status is that of the natural son born.
Within the adopted family, he has the same rights, privileges and responsibilities. The adoptive and natural baby will both inherit similarly.
Specifically, Section 12(c) states that the adopted child shall not divest any parent of any property vested in him or her until adoption.
The right of adoptive parents to dispose of their property is laid out in section 13, which specifies that an adoption does not grant the adoptive father or mother the authority to dispose of his or her property by any way.
In such cases, Section 14 specifies the adoptive mother’s decision as such:
- Section 14(1) provides that a Hindu who has a living wife adopts a child and is assumed to be the adoptive mother.
- Section 14(2) specifies that if the adoption is made with the consent of more than one wife, most of the elderly wives are considered to be adoptive mothers and the others to be step-mothers.
- Section 14(3) specifies that whether a child is adopted by a widower or a bachelor, the woman he later marries is presumed to be the step-mother of the adopted child.
- Section 14(4) specifies that if a widow or single woman adopts a child, then the step father of the adopted child shall be assumed to be the husband whom she eventually marries.
- Section 15 specifies that a legal adoption must not be canceled and that no valid adoption can be revoked by the adoptive parents or any other person and that the child can not renounce his or her identity and return to the family of his or her birth.
- Section 16 sets down the presumption that every declaration registered under every law in effect is submitted in every court to report an adoption rendered and signed by the individual giving the child and the person taking the child at the time of adoption, and in this case the court presumes that the adoption has been made in compliance with provisions of this act and until it is disproved.
- Section 17 forbids any kind of payment or other compensation in respect of any person’s recognition, and no person shall offer or consent to give any payment or reward to any other person.
MUSLIM LAW
Adoption is the transfer of a son into another family from the family of which he is born in by a gift given a to his adoptive parents by his natural parents. Adoption is not accepted by Islam.
It was concluded in Mohammed Allahabad Khan v. Mohammad Ismail that there is nothing in Mohammedan law equal to adoption as known in the Hindu framework. The closest path to adoption is acceptance of paternity under Muslim law.
The material distinction between the two may be claimed that the adoptee is the recognized son of another person when adopted, although one of the fundamentals of acknowledgment is that the accepted son of another must not be known.
PARSI LAW
The only personal law specified under the Hindu Adoption and Maintenance Act is the “Parsi law”. There are no other rules regulating persons who adhere to other faiths or cultures.
There is no provision for adoption for the Parsi who are regulated by the Parsi Marriage and Divorce Act, 1936, and PT III of the Indian Succession Act, 1925, in their constitution. The normal mode of adoption is known as “Palak” among the Parsi.
The widow will admit the infant on the fourth day of the death of her husband in the as stated in the Parsi Law, merely to execute such annual religious ceremonies. The child adopted does not have the right to land.
CHRISTIAN LAW
Since the personal rule of these religions does not accept adoption and adoption can take place from an orphanage after receiving approval from the court under the Guardians and Wards Act, Christians have no adoption rules.
Under the Guardians and Wards Act, if any Christians wish to foster a child, then they have to take leave from the order. The National Women’s Commission has highlighted the need for a standardized adoption statute.
An infant in foster care will be adopted by Christians with the support of the National Commission. If any child is adopted under foster care, he will lose all the relationships with his family when he becomes important. There is no right of inheritance for this form of child.
Who is Eligible to Adopt a Child in India?
The Central Adoption Resource Authority (CARA) is the central body for controlling and governing in-country and intra-country adoption and forms part of the Ministry of Women and Child Care.
In order to be able to adopt a child, the following are some necessary conditions:
- The procedure for adoption is different in case of Indian citizen, NRI or a foreign citizen and a child can be adopted by any of the three.
- Irrespective of their gender or marital status, any person is eligible to adopt.
- Provided that a couple is adopting a child, they should have completed two years of stable marriage and both should agree for the adoption.
- 25 years should be the minimum age difference between the child and the adoptive parents.
Rights of Adopted Child in India
The child has all the rights and, since divorce, the adopted child has all the rights. Like a regular infant, the adopted child becomes legitimate. In the Hindu Succession Act, 1956, this is established. If the parents die without the property’s will, so the property still passes to the heirs of Class-1. In the will of the parents, an adoptive kid still has rights.
Conditions for Adoption
According to Hindu tradition, whether he/she is not previously approved, under the age of 15 years. But if a kid is already adopted, he will not be adopted twice.
In the Guardianship Statute and the Juvenile Justice Act, 2015, if any child is not Hindu, then he/she can also be adopted if he/she is over 18 years of age.
In other faiths, such as Islam, Christianity, Parsis and the Jews, they may adopt a child under section 8 of the Guardians and Wards Act if they wish to adopt a child because they have no personal rule for adoption. There are some adoption laws and legislation that adoptive parents have to obey.
Case Laws
Teesta Chattoraj v. Union of India
In this case, the parents were separated by mutual consent and the father gave up all their daughter’s claims and responsibilities as per the arrangement. The mother remarried two years later and, through a registered adoption, the deed gave the daughter to the second husband without obtaining the biological father’s permission.
The appeal was turned down when the child applied for a passport with the name of the step father as the father, since the adoption was void. Hence, according to Article 226 of the Constitution, a petition by the child through her mother.
Her plea that the natural father had “finally renounced” the world of the plaintiff when he gave up all his rights, obligations and demands over the child at the time of seeking a divorce by mutual consent, was not approved.
On the other hand, the Ministry of External Affairs’ 2009 Government Circular, which provides that the bond between the child and his biological parents persists even after divorce, and on which the name of the stepparent cannot be entered in the passport of the children from the previous marriage, was depended.
Although this clause is reasonable, so technical an explanation can go against the child’s interest.
A recalcitrant parent may have abdicated all obligations to the child but may have demanded permission out of pure vindictiveness, which may cause psychological, mental, social and practical difficulties as well as the child’s humiliation.
There is a need to analyze each case on its own merits and evidence.
Ghisalal v. Dhapubai
Based on the important decision of the Supreme Court, this is the case. It was a dispute over property where the question of the legitimacy of an adoption by a male, albeit by a recorded deed, was posed.
The focal point was the wife’s consent to the adoption, while the petitioner argued that the adopted son was entitled to the adoptive father’s estate, the latter rejected the truth of adoption and also the wife’s consent.
The trial court, the lower appeal court and the Madhya Pradesh High Court were all of the view that the adoption was legal and that it was possible to conclude the consent of the wife of the adopted male from the facts of the case, that she was present at the adoption ceremony and that she did not challenge the adoption until the written statement was filed in the petition by the petitioner.
However, on appeal, the Supreme Court examined in depth the facts and conditions of the case and set aside the decision of the courts below, finding that the adoption was unconstitutional.
Chandan Bilasini v Aftabuddin Khan
In this case, where ample proof of adoption exists, the simple fact that the adoptive mother, who was an 86-year-old woman, and some other people who were present at the adoption ceremony, were unable to provide evidence before the court was found inadequate to prejudice the legitimacy of the adoption.
Also, where the adoption deed was documented in compliance with all rites of adoption according to Hindu law and photographs and negatives of photographs taken at the time of adoption were made, the adoption cannot be disputed.
It is significant to remember that registering of an adoption deed is not necessary and there is no prejudice of statute against the legitimacy of an unregistered adoption.
However, until the same is registered, there is a clear assumption under section 16 of the act that the adoption has been rendered in accordance with the provisions of the act unless and unless it’s disproved.
However, such a presumption is not irrebuttable and, despite being registered, the court may refuse to recognize an alleged adoption as legal if there is proof of circumstances which suggest that there was no legitimate adoption. However, such a presumption cannot be debunked by slight inconsistencies throughout the proof.
For instance, where adequate proof of adoption exists, the simple fact that the adoptive mother, who was an 86-year-old woman, and certain other individuals who were present at the adoption ceremony, were unable to provide evidence before the court was deemed not to be sufficient grounds for assaulting the legitimacy of the adoption.
Binapani Samanta v. Sambhu Mondal
On the basis that she was the adoptive daughter of the deceased who died and the probate is false, the plaintiff has lodged a lawsuit challenging the claimant who is the probate of the will. Yet she struggles to prove the standard of evidence that the adoption is legitimate. It was held that the probate cannot be challenged by her.
