Exploring Adoption in India: Types, Laws, and Procedures

Introduction:

Adoption of children can be of various kinds. Adoptions which are directly from the biological parents of the child are called ‘Direct Adoptions’. In the case of children who are adopted, not through the biological parents but through any external third-party agency, such adoptions are called ‘Indirect Adoptions’. Prospective adoptive parents could either be related to the child and the family or could be complete strangers who may fall in any of the following two categories: –

(i) Indian citizens; or
(ii) Non-resident Indians, persons of Indian origin or even foreigners.
The former would be ‘domestic adoptions’ and the latter would be ‘intercountry adoptions’.

India acceded to the United Nations Convention on the Rights of the
Child, 1990 on 11th December, 1992 and ratified the Convention on Protection
of Children and Co-operation in respect of Inter-Country Adoption, 1993 i.e.,
the Hague Convention, on 6th June, 2003. The first statute which was enacted
to regulate adoptions in India was the Juvenile Justice (Care and Protection of
Children) Act, 2000, which was has now been repealed by Section 111(1) of
the Juvenile Justice (Care and Protection of Children) Act, 2015.

In India, there are provisions relating to adoption in two statutes:
I) The Hindu Adoption and Maintenance Act, 1956; and
II) The Juvenile Justice (Care and Protection of Children) Act, 2015
and the regulations framed thereunder.

Adoption under the Hindu Adoption and Maintenance Act, 1956.This Act applies to the following categories of persons:
“2. Application of Act – (1) This Act applies-
(a) to any person, who is a Hindu by religion in any
of its forms or developments, including a
Virashaiva, a Lingayat or a follower of the Brahmo,
Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh
by religion, and
(c) to any other person who is not a Muslim,
Christian, Parsi or Jew by religion unless it is
proved that any such person would not have been
governed by the Hindu law or by any custom or
usage as part of that law in respect of any of the
matters dealt with herein if this Act had not been
passed. …”

The explanation in Section 2 extends the ambit of the Act to children under
various conditions whose parents or a single parent is a Hindu, Buddhist, Jaina
or Sikh and who has been brought up as a Hindu, Buddhist, Jaina or Sikh or who
has converted to Hindu, Buddhist, Jaina or Sikh, whether legitimate or
illegitimate, subject to the conditions set out therein. Chapter II deals with
adoptions. All adoptions, in order to be valid, must satisfy the conditions
contained in Chapter II. The adopted child would then be deemed to be the child
of the adoptive parents.

As per Section 9(5) of HAMA, before granting permission to a guardian
to give the child in adoption, the Court must be satisfied that the adoption is for
the welfare of the child. Due consideration would be given to the wishes of the
child, having regard to the age and understanding of the child. It is to be ensured
that no person has made or given or agreed to make or give to the applicant any
payment or reward in consideration of the adoption, except such as the Court
may sanction. Receipt or making of any payment or reward for adoption, attracts
punishment of imprisonment up to six months, or fine, or both under Section 17
of HAMA. Sections 15 and 16 of HAMA read as under:
“15. Valid adoption not to be cancelled – No
adoption which had been validly made can be
cancelled by the adoptive father or mother or any
other person, nor can the adopted child renounce
his or her status as such and return to the family of
his or her birth.

16.Presumption as to registered documents
relating to adoption – Whenever any document
registered under any law for the time being in force
is produced before any court purporting to record
an adoption made and is signed by the person
giving and the person taking the child in adoption,
the court shall presume that the adoption has been
made in compliance with the provisions of this Act
unless and until it is disproved.”

Thus, as per the provisions contained in Chapter II and Sections 15 and
16 extracted above, upon satisfaction of the various conditions as contained
therein, the adoption would be valid under the provisions of HAMA. If there
is a registered adoption deed, as per Section 15, the same would be presumed
to be in compliance of HAMA, so long as it is signed by the person giving the
child in adoption and the person taking the child in adoption. The proviso to
Section 11 makes it clear that performance of datta homam is not compulsory
for a valid adoption. Recently, in JS & Anr. V. CARA & Anr. [W.P.(C)
3187/2021, decided on 26th July, 2021], in respect of adoption under HAMA,
a ld. Single Judge of the Delhi High Court has observed as under:
“13. For the Hindus, their personal law recognizes
adoption. Therefore, the adoption ceremony known
as “Datta Homam”, where the biological parents
voluntarily surrender and hand over the child to the
recipient, following religious ceremonies, was
considered sufficient to result in a valid and legal
adoption. The relationship of the biological family
to the child given in adoption extinguishes when this
ceremony is conducted. However, this right to adopt
has been brought under the Hindu Adoptions and
Maintenance Act, 1956 (“HAMA”, for short) which
lays down certain limitations on who can adopt and
who can be adopted [Sections 7, 8, 9 & 10] and
what are the other conditions for a valid adoption
[Section 11]. Therefore, even under the HAMA the
giving and taking of the child must actually occur,
even if the “datta homam” is not performed. A
registered document purporting to record an
adoption made and signed by the person giving and
the person taking is to be presumed to have been in
compliance with the requirements of HAMA unless
disproved [Section 16]. HAMA is applicable only to
Hindus as defined in Section 2, and specifically
provides that it applies to any other person who is
not a Muslim, Christian, Parsi or Jew by religion‟.

There are a large number of adoptions that have
taken place socially amongst the Hindus without the
necessity of approaching the court for validating an
adoption. The JJ Act has recognised these
adoptions even in the case of Non-Resident Indians
(NRIs) and Overseas Citizens of India (OCIs)
[Section 59 of the Act].”

Adoption under the Juvenile Justice (Care and Protection of Children) Act,
2015:

In India, until the year 2000, adoptions were being considered and
approved under the Guardians and Wards Act, 1890. The JJ Act, 2000 was
then enacted, as per which, the process of adoptions was sought to be
streamlined. This Act was limited in its application to children who were
orphans, abandoned, neglected or abused children and a mechanism was put
in place for enabling the adoption of such children. The same was to be
monitored by the Child Welfare Committee (hereinafter, ‘CWC’) constituted
under Section 29. Upon the CWC declaring the child as free for adoption, the
same was duly approved. However, the JJ Act, 2000 did not have any
provision relating to inter-country adoptions. The regulations of 2006, which
were framed under the JJ Act, 2000, also did not provide for inter-country
adoptions.

In view of various incidents of abuse of children in institutions and other
surrounding circumstances, as also the ratification of the Hague Convention, the
JJ Act, 2015 was enacted. As per Section 1(4) of the JJ Act, 2015, the provisions
of the Act apply to all matters concerning children in need of care and protection’ and children in conflict with law’. Section 2(14) defines a “child in
need of care and protection”. The first category of children who are in need of
care and protection are those who do not have parents or guardians and have no
home, settled place of abode or means of subsistence, who are found indulging
in begging, living on the streets, who are vulnerable and likely to be inducted
into drug abuse or trafficking, who are victims of armed conflict, civil unrest or
natural calamities etc. The second category of children who are in need of care
and protection are those who either have parents or guardians but are covered by
Sections 2 (14) (iii), (iv), (v), (vi), (vii) or (xii). All these sub-sections relate to
children who reside with their parents or guardians, who have physically or
mentally abused the child or children with parents or guardians who are unfit to
take care of them, are incapacitated, who have abandoned or surrendered the
child or parents who cannot be found after reasonable inquiry. This category can
be collectively referred to as `abused children’. The terms “abandoned child”,
“surrendered child” and “orphan” are defined under Sections 2(1), 2(60) and
2(42), respectively. Under Section 2(13) of the JJ Act, 2015, a “child in conflict
with law” is a minor who has or is alleged to have committed an offence.

From a reading of Section 1(4) of the JJ Act, 2015, it is clear that the Act
provides for the adoption of children in need of care and protection and children
in conflict with law and lays down various standards and conditions under which
their welfare, including adoption, is regulated. Insofar as direct adoptions are
concerned, direct adoptions from the biological parents of the child are permitted
under Section 56(2) of the JJ Act, 2015.

The Adoption Regulations, 2017, which were framed under the provisions
of the JJ Act, 2015 provide a detailed procedure for adoptions, both, in respect
of orphans, abandoned or surrendered children, as also children of relatives under
Section 2(52) and children of a spouse from an earlier marriage who have been
surrendered by the biological parents for adoption by the step-parent. Regulation
5 prescribes the eligibility criteria for prospective adoptive parents. In Chapter
II, Regulations 6 and 7 deal with adoptions relating to orphans, abandoned or
surrendered children. Chapter III deals with the adoption procedure for resident
Indians. Chapter IV deals with the adoption procedure for non-resident Indian,
OCI and foreign prospective adoptive parents. Regulation 14 specifically
provides that non-resident Indian prospective adoptive parents would be treated
at par with Indians living in India for adoption of orphaned, abandoned or
surrendered children. Regulation 20 specifically provides for adoption by OCI
cardholders or foreign nationals who reside in a convention country i.e., a
country which has ratified the Hague Convention.

The procedure for inter-country adoption, which is prescribed under
Section 59 of the JJ Act, 2015, is elaborated in the Adoption Regulations, 2017
under Regulations 12, 15, 16, 17, 18 and 19. The procedure involves prospective
adoptive parents getting a Home Study Report prepared in their country of
habitual residence and getting registered on the Child Adoption Resource
Information and Guidance System (CARINGS). The foreign adoption
agency/central authority/government department prepares the Home Study
Report and on finding the prospective adoptive parents eligible, sponsors their
application to CARA for adoption from India. CARA scrutinizes the Home
Study Report and determines the prospective adoptive parents’ eligibility.
Profiles of two children are sent to the prospective adoptive parents who can
finalize one within 96 hours. A Child Study Report and Medical Examination
Report are prepared and signed by the prospective adoptive parents. These
documents are scrutinized by various authorities, both in India and in the
receiving country. Within 10 days from receipt of acceptance of child by the
prospective adoptive parents, CARA issues an NOC and letter of approval or
permission of the receiving country. Within 10 days of receiving the NOC from
CARA, the Specialised Adoption Agency files an application in the Court having
jurisdiction and a passport is issued for the child within 3 days from the date of
receipt of the adoption order. The prospective adoptive parents receive the child
in person from the Specialised Adoption Agency as soon as the passport and visa
are issued to the child and within 2 months from the adoption order. Post-
adoption, the authorized foreign adoption agency/central authority/government
department ensures the submission of progress reports of the child for 2 years
from date of arrival of child in the receiving country, on a quarterly basis during
the 1st year and 6-monthly basis in the 2nd year. An undertaking is given by the
prospective adoptive parents that they would allow personal visits by the
representatives of the authorized foreign adoption agency/central
authority/government department.

In inter-country direct adoption amongst relatives under Section 60 of the
JJ Act, 2015, there is no need for declaration of the child as legally free for
adoption. A relative living abroad, who intends to adopt a child from his relative
in India is required to obtain an order from Court and then apply for an NOC
from CARA. On receipt of such court order and an application from the
biological or adoptive parents, CARA will issue an NOC under intimation to the
immigration authority of India and of the receiving country of the child. After
receiving the NOC, the adoptive parents shall receive the child from the
biological parents. Akin to the conditions for adoptions under HAMA, while
issuing an order for adoption, the concerned Court is to ensure that the adoption
is for the welfare of the child, due consideration is given to the wishes of the
child, having regard to the age and understanding of the child and that there is
no monetary exchange involved in the adoption. Regulations 53 to 55 of the
Adoption Regulations, 2017 provide more detailed guidelines for inter-country
direct adoptions by relatives. The procedure involves preparation of a Home
Study Report in the country of habitual residence of the prospective adoptive
parents, getting registered on the Child Adoption Resource Information and
Guidance System (CARINGS), preparation of a family background report and
obtaining an adoption order from the competent court.