| Family Law Tutorial | Adoption | | | 9/21/2012 |

Saurabh Mishra, 211085, Section B |

Introduction
Reflecting a strictly general point of view, a person or a family may proceed to adopt a child for various reasons, varying from those of a genetic nature such as infertility and homosexuality to strictly humane sentiment, such as a desire to provide a child with a home and a caring family when he has been deprived of the same due to unavoidable and unforeseen circumstances. In order to completely establish the process of adoption, it is necessary to take into one’s family the child of another and give him or her, the rights, duties, and privileges of a child and heir.
Adoption is the institutionalized practice through which an individual belonging by birth to one kinship group acquires new kinship ties that are socially and legally defined as equivalent to congenital ties. These new ties supersede the old ones either wholly or in part.
Adoption: Religious legal opinions
Personal laws of Muslims, Christians, Parsis and Jews do not recognise complete adoption.
Hindu law is the only law which recognizes adoption in the true sense of taking of a son as a substitute for a natural born one. The reason for this is partly due to the belief that a son is indispensable for spiritual as well as material welfare of the family, particularly that of a father. The only personal law which permits adoption under statute is the Hindu Adoptions and Maintenance Act, 1956. There are no other laws governing people belonging to other religions or communities.
The Parsis, who are governed in their personal law by the Parsi Marriage and Divorce Act 1936 and the Indian Succession Act 1925 (pt. III), have no provision for adoption. There is however, a customary form of adoption among them known as Palak, which allows a childless Parsi widow to adopt a son on the fourth day of her husband’s death, in order to perform certain annual religious ceremonies. The child, under this practice, acquires no property rights.
Among the Muslims, there is no specific law of adoption. There is no statute to which a Muslim seeking adoption may resort to, though he may adopt if he can prove the existence of a custom permitting adoption.
As regard the Christians and their right to adoption, the Christian Marriage Act 1872, the Indian Divorce Act 1869 (as amended in 2001) and the Indian Succession Act 1925, which deal with Christian family law, make no mention of adoption. Although, just as was the case under Muslim law, if a customary practice to adopt can be established, adoption is a valid option.
Adoption prior to 1956
In India, adoption has been recognized for centuries. At the International level, India has ratified the Convention on the Rights of Child and the Hague Convention on inter-country adoption of children. At the national level, India has prepared a National Policy for children under which Ministry of Social Justice and Empowerment (now known as Ministry of Women and Child Development) has got the mandate to enact laws regarding welfare of children. The Juvenile Justice (Care and Protection of Children) Act 2000 is a landmark in this regard, and will be discussed in detail below. This Act has incorporated the provision of adoption of child as an alternative to institutional care. Being a part of personal laws, there is no uniformity with regard to adoption among the different communities. The variations range from treating an adopted child exactly like a natural born child, to not recognising the status of adoption at all. The Privy council has observed that adoption under Hindu law is significant not only for the continuation of the childless father’s name, but also as a religious means to make those oblations and sacrifices necessary for proper performance of funeral rites of the family. The council has also stated that the foundation of the Brahmanical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line.
It is significant to note however, that only a son was qualified to perform the specified functions. The adoption of a daughter was thus not legally recognised though it was permissible where custom allowed it.
Hindu Adoptions and Maintenance Act, 1956
The Hindu law on adoption has undergone radical changes after the enactment of the Hindu Adoptions and Maintenance Act in 1956. The act however, is not applicable retrospectively to cases of adoption before its enactment.
As part of modernizing and codifying Hindu law, the Hindu Adoptions and Maintenance Act 1956 was passed. The Act reflects the principles of equality and social justice by removing several (though not all) gender based discriminatory provisions. The salient features of the Act are discussed in this essay.
Some provisions of the Act, such as the capacity of an individual to adopt a child still remain fairly gender-biased. According to it, an adult male Hindu of sound mind can adopt a child, taking consent from his wife if he is married. A married woman though, cannot adopt even if she has the consent of her husband and can do so only in cases where her marriage has been dissolved or her husband is deceased, ceased to be a Hindu or renounced the world. Similarly, in the case of giving up a child for adoption, the father alone has the right, unless any of the above mentioned circumstances apply. Thus, the mother’s rights to both adopt and give up for adoption are heavily restricted in favour of the father. Unmarried women, in this regard are better off, as they do not suffer the constraints of spousal consent which restrict the provisions of adoption under Hindu law for a woman who is not unmarried, divorced or widowed.
Where both the parents are dead, or are legally incompetent to give in adoption, then in that case, the guardian of the child may give the child in adoption with the previous permission of the court, to any person, including the guardian himself. Such an adoption is subject to the court ascertaining that the same is for the welfare of the child, in accordance with the wishes of the child and regardless of any financial consideration in the transaction.
Upon a child being adopted as per due procedure under Hindu law, he severs all his connections with his natural family and becomes a bonafide member of the adopted family. The same is then entitled to all rights and obligations accruing to him as part of the family. However, any property that was vested in him prior to the adoption continues to vest in him subject to the obligation, if any, arising from the possession of the property, but at the same time, it is not permissible from him to divest any person of the estate that was vested in them prior to his adoption.
The same principle was reaffirmed by The Bombay High Court which held that an adopted child only takes the position of a child of the family from the date of his adoption and is not entitled to anything accruing to a child before that date. Thus, as has been mentioned above, the effects of adoption are not retrospective, and thus only apply to circumstances arising after it.
It is also pertinent to note that a child cannot be divested of rights he already held prior to his adoption. Therefore, a child given in adoption after the death of his father does not lose the right and title in the coparcenary property which devolves on him immediately after his father’s death.
The act provides for certain guidelines for courts to follow, in order to ensure that the adoption must be for the welfare of the child. While the law does not prescribe many formalities as such, for the process of adoption, it requires a certain ceremony of giving and taking of the child to be established. In the case of Dhanno v Tuhi Ram, the court held that “since there was no evidence on record in that case, to show any ceremony regarding adoption, a mere placing of a registered adoption deed on record, without proving the factum of adoption cannot be held to be enough evidence of adoption.”.
The Juvenile Justice (Care and Protection of Children) Act, 2000
Adoptions under this Act shall be irrevocable and the child shall be entitled to all rights and benefits as if the child were born in the adoptive family. A child becomes eligible for adoption when the Child Welfare Committee has completed its inquiry and declares the child legally free for adoption or when the legal guardian(s) of the child have voluntarily surrendered/relinquished their rights over the child after following the procedures laid down by law.
The criteria for adoption as per the act are listed below:
a. In considering possible adoption placements, agencies recognized by Central Adoptive Resource Agency (CARA) shall select the most appropriate environment for the child.
b. Adequate counselling and a time period of two months shall be given to the child's own parents as reconsideration time.
c. Counselling shall be given to the prospective adoptive parents and, as appropriate, the child in order to reach a decision on the child's future.
d. Opportunity shall be provided by the child welfare agency to allow the prospective adoptive parents and the child to get to know each other prior to the actual placement.
The relationship between the child to be adopted and the prospective adoptive parents shall be observed by child welfare agencies prior to the adoption. In case of inter-country adoption, photos shall be exchanged if face-to-face interaction is not possible. Conclusion As is clear from the brief elucidation of adoption laws prevalent in India, the law governing adoption revolves around religious reasons. While the Hindu Adoptions and Maintenance Act 1956 has liberalised the situation somewhat, the aforementioned bias still exists. The shortcomings of the same have been analysed over the due course of time, and provisions as per the 2000 Act aimed at addressing the same by establishing criteria other than religion for the process of adoption. However, regardless of the sensibility of the act, the problem still lies in implementation. Unless the same is remedied, it is fair to say that adoption laws in India cannot flourish in a healthy manner. The author believes that there exists massive scope for evolution of the law of adoption in India.

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[ 1 ]. State v. Thompson, 13 La. Ann. 515; Abney v. De Loach, 84 Ala. 393, 4 South. 757; In re Sessions’ Estate, 70 Micli. 297, 38 N. W. 249, 14 Am. St. Rep. 500; Smith v. Allen, 32 App. Div. 374, 53 N. Y. Supp. 114.
[ 2 ]. International Encyclopedia of Social Sciences, vol. 1, p 95.
[ 3 ]. Hindu Adoptions and Maintenance Act, 1956.
[ 4 ]. Parsi Marriage and Divorce Act, 1936.
[ 5 ]. Indian Succession Act, 1925.
[ 6 ]. Christian Marriage Act, 1872.
[ 7 ]. Indian Divorce Act, 1869.
[ 8 ]. Indian Succession Act, 1925.
[ 9 ]. Convention on Rights of the Child, available at : http://www.unicef.org/crc/.
[ 10 ]. Hague Convention, 1993, available at: http://adoption.state.gov/hague_convention.php.
[ 11 ]. The Juvenile Justice (Care and Protection of Children) Act, 2000.
[ 12 ]. Bal Gangadhar Tilak v Srinivas Pandit, (1915) 17 BOMLR 527.
[ 13 ]. Amarendra Mansingh v. Sanatan Singh, AIR 1933 PC 155.
[ 14 ]. Supra n.3.
[ 15 ]. Hindu Adoptions and Maintenance Act 1956, s 7.
[ 16 ]. Ibid, s 8.
[ 17 ]. Ibid, s 9.
[ 18 ]. Supra n 2, s 12.
[ 19 ]. Baburao Memane v. Suresh Sadu Memane, AIR 1996 Bom 50.
[ 20 ]. Kusum, Family Law Lectures, Family Law I, Lexis Nexis Butterworths (A division of Reed Elsevier India Pvt Ltd), New Delhi, India, 2008, p 329.
[ 21 ]. AIR 1996 P&H 203.