Adoption means a legal process that allows someone to become the parent of the child, even though the parent and child are not relatable by blood. But in every other way, adoptive parents are the child’s parents. Adoption falls under the ambit of personal law, due to diverse religions practised in our country, especially Hinduism and Islam. The law of adoption is a personal law practised by particular sects of people in India.
In the earlier concept of adoption in Hindu mythology, the only son could have been adopted for the continuation of family lineage and for the performances of funeral rites. But with time and new age, this concept of patriarchal tooth old concept was withered away and new laws of adoption were laid down under the Hindu Adoption and Maintenance Act, 1956, which allows a daughter can also be adopted and which also stated that adopted child is entitled to all rights and duties of non-biological family.
The concept of adoption is characterised as personal law based on two different laws which are discussed as under.
HINDU ADOPTION AND MAINTENANCE ACT, 1956
This act is primarily governed by Hindus, Sikhs, Jains, and Buddhists for the reason that their law provides that ambiguity to the concept of adoption. It mainly provides guidelines for Hindu society and the act deals with topics such as the capacity to adopt, capacity to give in adoption, the effect of the adoption, and such others.
Who is eligible for adoption?
• Any male who is of sound mind, not a minor, is eligible to adopt a son or daughter. But if such male has a living spouse at the time of adoption then he can only adopt the child with the consent of his spouse (unless she has been declared incompetent by the court).
• Any female who is not married, or if married, whose husband is not alive or marriage has been dissolved or her husband has been declared incompetent by court, can adopt son or daughter.
• In case of adoption of a son, by any male or female, there should not be any living son in the succeeding three generations of the party (whether by legitimate blood relationship or by adoption)
• In the case of adoption of a daughter, by any male or female, there should not be any daughter or son’s daughter at the time of adoption.
• Where there is the adoption of a daughter by a male then the adoptive father should be at least twenty-one years older than the child.
• Where there is the adoption of a son by a female then the adoptive mother should be at least twenty-one years older than the child.
Who can be adopted?
• The child can either be a girl or a boy if he/she is a Hindu (including Buddhist, Jaina, or Sikh by religion)
• He/she has not been adopted before
• The child should not be married
Once the child is adopted all the rights and obligations of a natural-born fall upon them. All the laws relating to adoptive parents are in sections 12,13 and 14 of the act. As per section 15, it can be noted that once the adoption is made by the parents or individuals it cannot be cancelled by them and nor can the adoptive child renounce the adoptive family and go back to his/her birth parents. Adoption generally is held permanent in nature, with neither party going back.
GUARDIANS AND WARDS ACT, 1890
Unlike the Hindu Adoption and Maintenance Act, the law stated in the Guardians And Wards Act, 1890 is different. Personal laws of Muslims, Jews, Christians and Parsis’ adoptions are not recognised so if a person desires to adopt a child it can only be taken for guardianship of the child as per Section 8 of this act. The statue makes the child a ward and not adoptive.
However, adoption can take place from an orphanage by obtaining permission from the court under this act. The act, however, became non-religious universal law regarding guardianship of the child.
In a recent landmark judgement of the Nagpur Bench of Bombay High Court, it was held that adoption cannot be restricted to those in need of care and protection. The court ruled that adoption can’t be restricted to those orphans, abandoned and surrendered children, those in conflict with law, or ones in need of care and protection.
CUSTODY OF ADOPTED CHILD
In India marriage is looked at as a sacred arrangement and adopted child as a legal transfer to the parents whereby the child enjoys all rights and obligations as a natural born. When a married couple adopts a child, they must adopt the child with the consent of their spouses present, provided they are declared incompetent by the court of law. The child becomes the legal child of both spouses. The adopted child has the same legal rights in a divorce as all children have in divorce, there are still some special things kept in mind before handling custody to either spouse. The adopted child is considered a minor up till the age of 18 years in the eyes of law and the court defines the guardianship of such child. The court makes the right of custody order that reflects the best interest of the adopted child. The adopted child has special needs and also of unique financial considerations. It is significant for the court of law to identify and address such circumstances that may apply when a child has been adopted.
In Indian law, both spouses have legal rights to approach the court of law for custody during divorce proceedings. In most matters, the custody of the child is legally shared by both parents but in the case of physical custody of the child only one parent gains. Often the family law courts make such decisions keeping the best interest of the child, especially the adopted child, and not merely based on arguments present by each party in the court.
As per Hindu Minority and Guardianship Act, 1956, the mother is held to be the natural guardian of the child up to the age of 5 years. Generally, the custody is given to the parents of the adopted child but sometimes for the welfare of the adopted child, custody is given to a third person such as any adult individual from either families of the spouse or Nari Nikeatan’s or Child Welfare Homes (governed by government) as an interim relief till the proceedings of the matter. Unless proved otherwise, the mother of the child enjoys the physical custody of the adopted child up to the age of 5 years and later the best interest of the child is looked upon by the courts.
In short, all adopted children have similar rights as a biological child in the custodial proceedings in the court of Indian law.
The writer is Advocate at Punjab and Haryana High Court, Chandigarh. The views expressed are personal.