This article is written by Mehak, Trinity Institute Of Professional Studies of BALLB, during her internship with LeDroit India.
KEYWORDS: pre- requisite, eligibility criteria, act, effect.
ABSTRACT: Adoption is a legal process where people other than biological parents are taking custody of a child. The law governing adoption in our country is the Hindu Adoption and Maintenance Act, of 1956. The adopted son or daughter is taken as being born into the new family and acquires rights, privileges, and responsibilities and starts it with the family.
This article deals with the concept of adoption, adoption under old & modern hindu law and the criteria .
INTRODUCTION:
The child who is adopted by legally other than their lawful parents, then such child is called the adopted child. Adoption is a legal process of taking someone’s custody into consideration. Nowadays, couples who can’t conceive or produce a baby then go for the adoption option. Couples who don’t want to willfully want to produce a baby also go for the option of adoption. Adoption has not been described in manusmriti and its means of transplantation of a child into another family.
MEANING OF ADOPTION:
The word adoption means to take legal lawful custody of a child by a couple who are not his/her biological parents.. In layman’s language adoption simply means a process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of the adoptive parents with all the rights, privileges, and responsibilities as the biological parents have. The word adoption is wider meaning “Child” means girl and boy. The Hindu Adoption and Maintenance Act, 1956 describes a Hindu means not only a person who follows Hinduism but also includes other sects of Hinduism, such as Buddhists, Jains, Sikhs, Vira Shaiva, Lingayat, or members of Arya Samaj.
ADOPTION UNDER OLD HINDU LAW
According to Old Law, a man could adopt a boy without the consent of his wife. But, a woman could not adopt during the lifetime of her husband or after his death except under authority given to her by the husband or with the consent of his sapindas. The adopted son should be of the same caste. An illegitimate boy or congenitally deaf and dumb boy could not be adopted. Only parents could give a boy in adoption. A daughter could not be adopted. There was no age restriction between the adopter and adoptee.
ADOPTION UNDER MODERN HINDU LAW
The Hindu Adoptions and Maintenance Act, made adoption a secular institution. The Act lays down various provisions relating to Adoption (and Maintenance). The Act removed the restrictions under Old Law. Under the Act, girls also can be taken in for adoption.
GOVERNING ACT OF ADOPTION IN CONTEXT OF INDIA:
There are two acts which are responsible for governing adoption in India i.e., THE HINDU ADOPTION AND MAINTENANCE ACT, 1956, and the other one is the juvenile justice act, 2000. The Juvenile Justice Act allows the child of the same sex. It confers the status of the child & parents and not guardian and ward. The Juvenile Justice Act is designed to case, protect, and for the development of the child.
ELIGIBILITY CRITERIA OF ADOPTIVE PARENTS
Any couple who is an Indian resident or non-resident, OCI Cardholder, or ‘foreign parents living in a country that is a signatory to the Hague Adoption Convention’ are entitled under the provisions of the Juvenile Justice Act, 2015 to adopt an Indian Child, subject to fulfilling the following conditions:
• Should be physically, emotionally, mentally, and financially able and competent and must not have any critical medical condition that may be construed as life-threatening.
• Married spouses having at least 2 years of stable marital relationship, whether or not they have a biological son or daughter with the consent of each spouse.
• The composite age of the prospective Couple should be within the prescribed limit under the Adoption Regulations 2022 which falls between the range of 85 years to 110 years.
• Couples that already have two or more children are not permitted to adopt children and may only be considered in case of a child with special needs or children that are hard to place otherwise
• Consent of both the prospective adoptive parents to move forward with the process.
ELIGIBILITY CRITERIA IN THE CASE OF SINGLE PARENTS:
• Single females of 25 years or older in age than the prospective adoptive child can adopt a child of any gender.
• Single male of 25 years or above are only eligible for adopting a male child.
• The maximum age of the prospective parent must be as per regulation 4 of the Adoption Regulations 2022 which ranges from 40 to 55 years, depending on the age of the prospective adoptive child.
PRE-REQUISITE IN ADOPTION:
No adoption shall be 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 and
• The adoption is made in compliance with the other conditions mentioned in this act.
PERSON WHO MAY BE ADOPTED:
o He/she is Hindu
o He/she had not been adopted earlier
o He/she has not attained the age of fifteen years unless there is a custom and usage.
CAPACITY OF A MALE HINDU TO TAKE IN ADOPTION:
Any male Hindu who is of sound mind and not a minor has the capacity to take a son or daughter in adoption provided he has a wife so without his wife’s consent he will not adopt any child and in the case of his wife has renounced the world or has ceased to be Hindu or has been declared by the court of competent jurisdiction of unsound mind person.
CAPACITY OF FEMALE HINDU TO TAKE IN ADOPTION:
o A female who is of sound mind
o Who is not a minor
o Who is not married and if married, whose marriage has been dissolved or whose husband has been dead or has been completely renounced from the world or has ceased to be Hindu or has been declared the competed court of unsound mind to take the son or daughter into the adoption.
OTHER CONDITION FOR VALID ADOPTION;
• If any adoption is of a son or daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu son or daughter or son’s son or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption.
• If the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted.
• 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.
• The same child may not be adopted simultaneously by two or more persons.
• The child to be adopted must be actually 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 (or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption.
EFFECT OF ADOPTION:
An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family provided that
• The child can not marry any person whom he or she could not have married if he or she had continued in the family of his or her birth.
• Any property which vested in the adopted child before the adoption shall continue to vest in such a person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth.
• The adopted child shall not divest any person of any estate which vested in him or her before the adoption.
• Under this act both son and daughter are bound to maintain the aged or infirm parents, while previously only son was bound to do so.
CONCLUSION
Since our country is tangled by the presence of different religions and their own personal laws, certain matters such as adoption require the imposition of a Uniform Civil Code by the state under Article 44 of the Indian Constitution, 1950, so that every citizen irrespective of their religion receives certain rights such as the right to adopt a child. The landmark judgement of Mohd. Ahmed Khan v. Shah Bano Begum , referred to as the Shah Bano case, which pointed put the significant need of civil code in our country. There is a bar in the religious community of many childless parents who are willing to adopt, and therefore it reduces the scope of adoption in our country. There are so many laws to regulate adoption, instead if there is a common secular law for every citizen to adopt, then, many homeless children can get a family, and many childless and willing parents can get a child to nurture.:
