Adoption is a noble and compassionate process that provides a new and loving home to children who, for various reasons, cannot be raised by their biological parents.
The legal framework surrounding adoption in India is designed to ensure the well-being and best interests of the child while also addressing the rights and responsibilities of adoptive parents.
Understanding these laws is essential for anyone seeking to embark on the journey of adoption as they navigate the complexities and emotional aspects of giving a child a second chance at a brighter future.
Juvenile Justice (Care and Protection of Children) Act, 2015
This Act categorizes children into two distinct groups: “children in conflict with the law” and “children in need of care and protection." Definitions provided in the Act include:
- “Child”: An individual who has not yet reached eighteen years of age;
- “Children in conflict with law”: This refers to a child who has either allegedly committed or has been found to have committed an offense and was under the age of eighteen at the time when a crime was committed;
- “Children in need of care and protection”: This is defined as a child who fulfills specific conditions, such as lacking a home or means of support, participating in illegal labor, living on the streets or begging, dwelling with an abusive caretaker, being at risk for drug abuse or trafficking, experiencing extreme exploitation, enduring incurable diseases or disabilities, being affected by armed conflict or natural disasters, or being at risk of entering into an early marriage.
The goals of this Act include:
- Creating a structure for the care, protection, treatment, growth, and rehabilitation of children requiring care and protection.
- Safeguarding the rights of children in conflict with the law, ensuring they are treated in accordance with the principles of justice, dignity, and reform.
- Encouraging the rehabilitation and social reintegration of children in conflict with the law to deter them from reoffending.
Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021
- The Juvenile Justice Act of 2015 underwent an amendment in 2021.
- The amendment to this Act was prompted primarily by a rise in heinous crimes committed by children aged 16-18, such as rape and murder.
- The Nirbhaya gang rape case, although not directly tied to the Juvenile Justice Act of 2015, brought attention to juvenile offenders involved in severe crimes.
- One assailant in the Nirbhaya case, often described as the most violent, was a minor and was sentenced under the then-existing Juvenile Justice Act.
- This incident sparked debate and conversation around the age of criminal responsibility in India, ultimately leading to the amendment and passage of the JJ Act 2015.
- This Amendment Act of 2021 incorporated several changes into critical parts of the law, such as adoption processes, offense categorization, specified courts, and the qualifying conditions for Child Welfare Committees (CWCs) members.
- Both the government and the opposition widely supported the Amendment Act. However, some alterations might potentially have bad impacts on children's welfare and well-being, diverging from the original legislation's intent.
The modifications made by the New Amendment Bill include the following:
Serious Offences: A notable change was the introduction of a classification of severe offenses or major wrongdoings, now divided into two types of crime, namely Heinous Offenses and Serious Offenses.
Adoption: Previously, adoption orders were issued by the courts to affirm that a child belonged to the adoptive parents. However, with the amendment in the Juvenile Justice Act 2021, District Magistrates, along with Deputy District Magistrates, now have the authority to oversee the adoption process.
Appeal: If a party is dissatisfied with the adoption order, they can appeal to the divisional official within 30 days of the order being passed by the District Magistrate and Additional District Magistrate.
The appeals must be resolved within a month of filing, a provision that helps speed the adoption process.
Designated Courts: Special courts, referred to as Children's Courts, have been specifically established to handle all offenses committed by juveniles.
Before the amendment to the Act, offenses that carried a penalty of seven years or more of imprisonment were tried in the Children's Court, while those punishable by less than seven years were handled by Judicial Magistrates.
The new bill has changed this, stipulating that all offenses under the act will now be tried in the Children's Court.
Child Welfare Committee (CWCs): The Bill stipulates that no person will be appointed as a member of the CWC unless they have a positive engagement record in human or child rights.
They must not have been convicted of an offense involving moral turpitude and have not been removed or dismissed from the services of the central government, any state government, or any government undertaking.
Furthermore, they should not be part of the administration of a childcare institution in the district.
Termination of Members: The state government may terminate the appointment of a member of the committee if they fail to attend the Child Welfare Committees' proceedings for three consecutive months without valid reasons or if they fail to attend at least three-quarters of the meetings in a year.
The bill also places direct oversight on the responsibility of Child Care Institutions (CCIs), as reviews have shown that children's rehabilitation is not their priority and that children are kept in these institutions primarily to secure funding, which can lead to corruption.
Hindu Adoption and Maintenance Act, 1956
- The Hindu Adoption and Maintenance Act 1956 is an essential piece of legislation in India that governs the adoption and maintenance rights within the Hindu community.
- For Male Hindus: A male Hindu who is of sound mind, an adult, and eligible to adopt a child can do so. If married, he must obtain his wife's consent before adoption, ensuring that the consent is given freely.
- For Female Hindus: A female Hindu who is of sound mind, an adult, and eligible to adopt a child can also do so. If married, she must obtain her husband's consent before adoption, ensuring that the consent is given freely.
Conditions for Adoption by Hindu Individuals or Couples
- When a Hindu male or female wishes to adopt a son, they should not have a living son, whether legitimate or illegitimate, at the time of adoption.
- When a Hindu male or female wishes to adopt a daughter, they should not have a living daughter or son's daughter at the time of adoption.
- A male who wants to adopt a daughter must be at least 21 years older than the adoptive daughter.
- A female who wants to adopt a son must be at least 21 years older than the adoptive son.
Prohibition of Payments
Under the Hindu Adoptions and Maintenance Act (HAMA), payments related to adoption are expressly prohibited:
- No one can accept or agree to accept any payment or rewards regarding an adoption.
- No one can make or agree to make any payment or reward to another person, the receipt of which is prohibited by this section.
- Violating these provisions is punishable by imprisonment of up to six months, a fine, or both.
Guardians and Wards Act, 1890
The definition of a minor and the role of a guardian are outlined in the Guardians and Wards Act 1890 in India.
- Definition of a Minor: According to Section 4(1) of the Guardians and Wards Act 1890, a minor is identified as a person who has not reached 18 years of age.
- This definition is derived from the Indian Majority Act of 1875. Being underage, a minor needs a legal guardian to take care of them.
- Definition of a Guardian: A guardian is defined in Section 4(2) of the same Act as a person responsible for the well-being of the minor, their property, or both.
- Role of Guardianship: Guardianship plays a crucial role in a child's growth and development. Usually, parents have the authority to designate who will be the guardian in the event of their death.
- However, in some situations, the court may appoint a guardian to ensure the child's well-being.
Under the Guardians and Wards Act 1890, the following sections detail the appointment of a guardian, who can apply for guardianship, and the jurisdiction of the courts.
Appointment of Guardian - Section 7
- Section 7 of the Act empowers the court to pass an order for the appointment of a guardian in the interest of minors.
- Under this provision, the court may appoint a guardian to care for both the minor and their property.
- Moreover, if the guardian was appointed by the court, the court also retains the power to remove them if necessary.
Eligibility to Apply for Guardianship - Section 8
According to Section 8 of the Act, the following individuals can make an application for guardianship:
- The person who wishes to be or claims to be the guardian of the minor.
- A relative or any friend of the minor.
- The collector of the district where the minor lives or owns the property.
- A collector who possesses the proper authority.
Jurisdiction of Courts - Section 9
Section 9 stipulates the jurisdiction of the courts to entertain applications for guardianship:
- If the application pertains to the guardianship of minors, the jurisdiction lies where the guardians of the minors live or reside.
- If the application is related to the minor's property, the jurisdiction of the District Court may be established either where the minor resides or where the property is situated.
Laws for Adoption Based on Religion
Below is a general overview of how religion may affect adoption laws:
Adoption in Muslim Law
- In Islamic Law, the concept of adoption, as understood in other legal systems, is not recognized.
- This was emphasized in the landmark case of Mohammed Allahabad Khan v. Mohammad Ismail, where it was stated that Muslim Law does not contain provisions for adoption or anything analogous to it, as seen in the Hindu system.
- The closest concept to adoption in Muslim Law is the 'Acknowledgement of Paternity.'
- The distinction between the two lies in the fact that, in adoption, the adoptee is known to be the child of another person, whereas, in the acknowledgment of paternity, the child must not be known to be the offspring of someone else.
- Nevertheless, the Guardian and Ward Act, 1890 allows for legal adoption from an orphanage, and this can be sanctioned by the courts.
Adoption in Parsi and Christian Law
- In the Parsi community in India, similar to Muslim Law, adoption is not recognized. However, Parsis can adopt a child from an orphanage with the valid approval of the concerned court under the Guardians and Wards Act of 1890.
- Similarly, in Christianity, adoption is not acknowledged as part of religious law. Adoption becomes a matter of personal legal decision rather than a religious one.
- Like Muslims and Parsis, Christians too can adopt a child from an orphanage through the legal process outlined in the Guardians and Wards Act 1890.
- Under this Act, a Christian may only take a child for foster care, and once the child reaches the age of 21, he/she may choose whether to continue living with the guardian or sever all connections.
- Furthermore, such a child does not possess any legal rights to inheritance of the guardian's property.