Adoption Laws in India

In India, the laws concerning adoption derive from a combination of religious and secular systems created to ensure that traditions do not override the welfare of the child. The Constitution of India has helped to move the country from reliance on a mix of religious laws to a singular point of reference for determining how to raise a child (i.e., the best interest of the child). This best interest doctrine is largely contained in the statutory law (i.e., Acts passed by Parliament) that governs adoption and in the Regulatory Authorities that oversee the adoption process.

Background to Adoption Law and Historical Prototype of Adoption

Traditionally, adoption was governed according to the personal laws of each religious community. Indeed, the most notable adoption statute is the Hindu Adoptions and Maintenance Act (HAMA) of 1956. The Act established a comprehensive statutory scheme for the adoption of children by parents in the Hindu, Buddhist, Jain and Sikh faiths and codified many age-old customs related to adoptions into legal principles dealing with both the capacity of prospective adoptive parents to adopt and the eligibility of prospective adoptee children for adoption, along with the requisite procedures that must be followed to legally adopt a child.

On the other hand, for many religious communities (e.g., Muslims, Christians, Parsis and Jews), there has never been a legal framework within their respective personal laws that allowed for the adoption of children. Accordingly, these religious communities could only use the guardianship process as established under the Guardians and Wards Act of 1890.

Recognising that there were no systems in place to provide for adopted children’s welfare in a uniform manner and that a number of children were without parents (i.e., orphaned, abandoned or surrendered), the Indian Parliament enacted the Juvenile Justice (Care and Protection of Children) Act of 2015 (JJ Act). This Act provides the principal secular statutory framework for adoptions in India today.

The Hindu Adoption and Maintenance Act of 1956

The Hindu Adoption and Maintenance Act of 1956 is an act that sets forth the rules for adoption and maintenance for Hindu families. The areas of applicability of this Act include the following:

1. Capacity to adopt: The ability to adopt under this Act is restricted strictly to Hindus. The adopting party must be of sound mind and an adult. Additionally, a married man must have the consent of his wife before he is able to adopt. Unmarried females may only adopt if they are a widow or divorcee; otherwise, they may not adopt.
2. Eligibility of the Child: In order to be adopted under this Act, the child must be a Hindu, unmarried, and under the age of 15 years unless otherwise approved by custom.
3. Conditions of Valid Adoption: There are certain conditions that must exist for an adoption under the Act to be valid, including an age difference between the parties and that a parent is prohibited from adopting if they already have a child from the same lineage.

While the Hindu Adoption and Maintenance Act is still in effect, it is very limitedly used in the present time by reason of the fact that the Juvenile Justice Act and CARA Regulations govern the majority of modern day institutional adoptions.

Juvenile Justice (Care and Protection of Children) Act 2015

The Juvenile Justice Act, 2015 establishes one unified, secular system of adoption for all individuals, regardless of religion. The primary goal of this Act is to implement formalised, long term adoption processes for children who do not have a parent in their life and to protect the best interests of these children.

Legality of Child Welfare Committees (CWC) & Legally Free Status

According to the Act, a child can only be declared ‘legally free’ for adoption when approved by the Child Welfare Committee (CWC). For this reason, only orphaned, abandoned, or children whose parents discontinued their parental rights and requested the child not be returned to them

are ‘legally free’. Therefore an adoptive parent, when seeking an adoption must wait until this child has been declared legally free before they can begin the process of adoption.

Prospective Adoptive Parents Eligibility

Under section 57 of the Act, prospective parents must meet the basic requirements set out for adoption. A potential adoptive parent must be in good physical and mental health, have financial stability, and have no questionable morals. Further, the prospective adoptive parents should have a genuine desire to adopt. While guidelines from CARA have more information about eligibility of PAP’s, the Act has the baseline requirements.

Adoption Orders

One of the most significant changes to the JJ Act by the Amendment to the JJ Act of 2021 provides for the issuance of Adoption Orders by District Magistrates and Additional District Magistrates, instead of Courts. Adoption Orders now will be produced more quickly.

Central Adoption Resource Authority (CARA)

The Central Adoption Resource Authority (CARA) is an independent statutory authority within the Ministry of Women and Child Development for Adoption in India. Its establishment was made in 1990 and finally incorporated in the JJ Act. CARA has several important responsibilities relating to their fundraising efforts. These include, but are not limited to: maintain a registry of all adoptions; ensuring that all adoptions are conducted according to established guidelines and ethical standards; implementing the Guidelines Governing the Adoption of Children (2015) and subsequent regulations (e.g., Adoption Regulations). These guidelines address the process of becoming an adoptive parent, providing information regarding the process of conducting a home study, referring and matching of children for adoption, and follow up once the child is placed for an indefinite period of time after placement.

Although CARA adheres to the Hague Convention rules and procedures, there are often discrepancies between the procedures and processes, as well as documentation, involved in international adoptions. Recent high court decisions have ordered quicker processing of no objection certificates (NOCs). The adoption process in India has shifted from being based on

numerous religious laws to a much more comprehensive statutory framework focused on the child. Specifically, India has developed a statutory framework that is child- centric and focuses on a child’s well- being based on the Juvenile Justice(Care and Protection of Children) Act, 2015, and the powers of CARA to regulate the system. The Hindu Adoption and Maintenance Act (HAMA) is still applicable to specific religious communities, but the adoption process, in general, has become a structured and secular process built upon the principles of a child’s welfare.

However, the ongoing debate about who is eligible to adopt, the amount of time required to complete the adoption process, and whether or not people from diverse communities can adopt are all evidence that adoption laws are evolving to keep up with society and its values of equality and dignity.