INTRODUCTION
‘Adoption was such a positive alternative to abortion, away to save one life and brighten two more: those of the adoptive parents.’ – George W. Bush.
“Adoption simply means a social and lawful process under which a parent can take responsibility of a child to raise the child as their own. Adoption can also be considered as the foundation to build a parent and child relationship. The legal procedure under which a parent willingly ensures to take care of a child as their own is known as adoption. The adoptive parents and the biological parents must follow the legal procedure strictly so that the adoption turns out to a valid one.”[1]
This blog is aimed at providing a comprehensive overview of adoption laws in India which would provide a comparative perception to laws applicable to man-woman pair and a same sex pair.
Historically, adoption for Hindus, Sikhs, Buddhists, and Jains was governed by the Hindu Adoption and Maintenance Act, 1956. In contrast, Muslims followed the Guardianship and Wards Act, 1890 for child guardianship. In 2000, the Indian government introduced the Juvenile Justice (Care and Protection) Act to streamline the adoption process. The JJ Act of 2015 brought in significant changes to further refine the system, ensuring that abandoned, orphaned, or surrendered children could find suitable families more efficiently. Notably, the JJ Act did not replace the Hindu Adoption and Maintenance Act but became the more prominent framework for adoption.
Adoption according to section 2(aa) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 is a procedure under which a adopted child separates from their biological parents permanently and becomes a legitimate child of the adoptive parents entitled to all rights, responsibilities and privileges which are available within the relationship.[2]
VARIOUS STATUTES MAINTAINING ADOPTION IN INDIA:
Adoption under the Hindu Adoption and Maintenance Act, 1956 (HAMA)
Adoption for Hindus, including Sikhs, Jains, and Buddhists, is governed by the Hindu Adoption and Maintenance Act, 1956 (HAMA). This Act does not apply to Muslims, Parsis, or Christians. Under HAMA, adopted children have the same rights as biological children. If parents already have a biological child, they can adopt a child of the opposite gender. A female adopting a male child must be at least 21 years older than the child, and the same age gap applies to a male adopting a female child. Adoption under HAMA is irrevocable.[3]
The Guardians and Wards Act, 1890
Adoption is not recognized under the personal laws of Muslims, Jews, Christians, and Parsis. Instead, the Guardians and Wards Act, 1890, allows individuals to become guardians of children until they turn 21. This Act does not grant full adoptive rights, creating a guardian-ward relationship rather than a parent-child one, and does not confer biological rights to the parents.[4]
The Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act)
Adoption is defined under Section 2(aa) of the JJ Act. Introduced in 2000, this Act provides safeguards and protections for children and applies to all religions, including Hindus, Muslims, Sikhs, Buddhists, Parsis, Jews, Jains, and Christians. The JJ Act has been amended several times, with significant changes in 2006, 2015, and 2021. While it did not replace HAMA or the Guardians and Wards Act, it has become the predominant framework for adoption in India.[5]
The Central Adoption Resource Authority (CARA)
CARA, an autonomous body established by the Government of India on June 29, 1990, oversees adoption matters in the country. Operating under the Ministry of Social Justice and Empowerment, CARA manages both domestic and international adoptions, particularly for orphaned, surrendered, or abandoned children. It acts as the designated Central Authority in accordance with the Hague Convention on Inter-Country Adoption, 1993, which India ratified in 2003.[6]
CRITERIA FOR ADOPTION:
A. Criteria for Adoption by a Male (Section 7 of HAMA)[7]
Under Section 7 of the Hindu Adoption and Maintenance Act (HAMA), a male must meet specific criteria to be eligible to adopt a child:
- He must be a legal adult.
- He must be of sound mind, meaning he should not suffer from any mental illness or incapacity.
- He must obtain the consent of his wife before adopting. If divorced, her consent is not required, but if they are judicially separated, her consent is still necessary.
- This consent must be obtained before the adoption process begins.
- The wife’s consent is mandatory unless she has been legally deemed incapable of giving free consent.
B. Criteria for Adoption by a Female (Section 8 of HAMA)[8]
Under Section 8 of HAMA, a female must fulfill certain conditions to adopt a child:
- She must be a legal adult, and she can adopt even if she is unmarried. If she marries after adopting, she remains the child’s legal mother, and her husband becomes the stepfather.
- She must be of sound mind.
- She must be unmarried, divorced, widowed, or her husband must have renounced the world.
- An unmarried female can adopt even if she has an illegitimate child.
C. Criteria for Adoption under the JJ Act[9]
The Juvenile Justice (Care and Protection of Children) Act outlines the following criteria for adoptive parents:
- They must be of sound mind and physically capable.
- Both single parents and couples can adopt.
- Adoptive parents must meet specific age requirements.
- Married couples must have a minimum of two years of successful marriage.
- Couples with more than two or three children are generally not eligible to adopt.
- The suitability of adoptive parents is assessed by a Specialized Adoption Agency (SAA) through a home study.
ADOPTION RIGHTS FOR LGBTQIA+ COMMUNITY:
In accordance with Indian legislation, the Hindu Adoption and Maintenance Act of 1956 and the Juvenile Justice (Care and Protection of Children) Act of 2015 stand as the primary pillars governing the intricate process of adoption within the nation’s borders. As it currently stands, the privilege of adopting children is exclusively given to traditional heterosexual couples – comprised of a man and a woman – and singular individuals.[10]It leads tothe creation of a restrictive environment that excludes a significant portion of the population.
However, the winds of change have begun, bringing in a new era of inclusivity and equality for the LGBTQIA+ community. Landmark judicial rulings, such as the Navtej Singh v. Union of India case, have paved the way for progress. The acknowledgment of transgender individuals as a distinct third gender has further broadened the spectrum of recognition. Yet, despite these monumental strides, the nation finds itself at an impasse when it comes to the acceptance of same-sex marriage and the extension of adoption rights to LGBTQIA+ individuals. The Transgender Persons (Protection of Rights) Act grants transgender individuals the right to adopt, but there exists a glaring absence of specific legislation permitting adoption by same-sex couples or LGBTQIA+ individuals as a whole. [11]
The decriminalization of homosexuality through the amendment of Section 377 of the Indian Penal Code marked a remarkable moment in the nation’s history. A glimpse of hope emerged in 2020 with the removal of discriminatory provisions from the Juvenile Justice (Care and Protection of Children) Act.[12] This amendment, while a step in the right direction, aimed to prioritize the best interests of the child during the adoption process. Yet, it falls short of providing a comprehensive solution to the challenges faced by LGBTQIA+ individuals seeking to adopt.
CONCLUSION
In a nation that prides itself on its democratic principles, there should be no room for discrimination, and the pursuit of equality under the law should be paramount. The challenges faced by the LGBTQIA+ community, which give rise to countless concerns and obstacles, demand a critical examination and revision of discriminatory laws. Every citizen of India, irrespective of their sexual orientation or gender identity, is entitled to equal treatment and the preservation of their constitutional rights as enshrined in Articles 19, 20, 21, 21A, and 22 of the Indian Constitution.[13]As a sovereign, democratic, and republican nation, India must strive to treat all its citizens with equality and without prejudice. The access to fundamental rights, including the right to adopt, should be extended to all citizens of the nation, fostering a society where true equality prevails and prejudice finds no foothold.
[1]An Overview Of The Adoption Laws And Its Procedures In India. https://legalserviceindia.com/legal/article-10661-an-overview-of-the-adoption-laws-and-its-procedures-in-india.html , Accessed 6 July 2024
[2]ibid
[3]ibid
[4]ibid
[5]Ibid
[6]ibid
[7]Ibid
[8]ibid
[9]ibid
[10]Adoption Rights for LGBTQIA+ Community in India: A Critical Analysis of the Family Law System. https://legalserviceindia.com/legal/article-11593-adoption-rights-for-lgbtqia-community-in-india-a-critical-analysis-of-the-family-law-system.html. Accessed 7 July 2024.
[11]ibid
[12]ibid
[13]ibid