An Analysis of Adoption
ABSTRACT
A parent's greatest joy is having a child. Adoption is likely to be the best way of providing this happiness. "Adoption" refers to the process through which an adopted child is permanently separated from his birth parents and has all of the rights and privileges that a natural child of the adoptive parents would have.In India, The Hindu Adoption and Maintenance Act 1956 is the only personal law that deals with adoption. There are no special adoption laws in India for Muslims, Christians, or Parsis, they must seek legal adoption through the Guardians and Wards Act of 1890.There are different types of adoption available in India such as open Adoption,semi- open Adoption,closed,domestic and International Adoption. This paper promises to provide a detailed and critical analysis on adoption policies in India.This article also explains other provisions of law with respect to adoption and process for adopting a child in India.
Keywords: Adoption,Hindu,Personal Law ,Domestic Adoption
INTRODUCTION
Adoption is a process in which a person adopts a child from a birth parents and raises him as his own child.It is a concept that has existed since ancient times and is viewed differently in different legal systems. Earlier,adoption has been done for spiritual reasons, but it is now also done to fulfil the adopters' emotional and parental instincts.
According to section 2(aa) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, “adoption means the process through which the adopted child is permanently separated from his biological parent and becomes the legitimate child of his adoptive parents with all right, privileges and responsibility that are attached to the relationship”.
Objectives of adoption:
Only Hindu law observes adoption in the real sense of taking a child as an alternate for a natural-born child.Hindus believe that the desire to have a natural born son is assumed to be the basis of adoption.If a person did not have a biological son, he could adopt the son of another person and treats him as his own. In the ancient period, sonship was valued for a variety of religious and secular reasons.
In order to make the process of adopting orphaned children easier and more transparent, the Government of India issued revised guidelines for child adoption in August 2015.In accordance with the provisions of the constitution and international commitments, the Indian government developed a National Policy on Children, enacted the Juvenile Justice Act and ratified the UN Convention on the Rights of the Child and the National Plan of Action for Children to protect childhood from exploitation , moral and material abandonment.
RESEARCH METHODOLOGY
The basis for this study is a doctrinal type pattern. Traditional research is another name for doctrinal research. There are various kinds of doctrinal study, such as analytical and descriptive methods. This research is based on information that was already available, and it was used to analyse those facts in order to develop the research. Secondary data is used in this study. In this research the researcher mostly used books,articles,journals.,etc
History
Adoption as a legal notion in India was only available to Hindus . The religious-specific nature of adoption legislation has historically promoted inequitable behaviours toward children and hampered the development of the Uniform Civil Code as envisioned by Article 44 of the Constitution. The initiation dates from 1890, when the Guardian and WardAct of 1890 was passed, making the child a ward rather than an adopted child. Personal laws of Muslims, Christians, Parsis, and Jews, which do not recognise total adoption, have been a serious impediment.
Adoption has been practised in India for thousands of years. When there was a paucity of male offspring in the past, couples would adopt a male kid and name him as a rightful successor when the adoptive parents died. According to Hindu belief, if a person has a son who lights the cremation fire, salvation will come quickly through sons who perform ancestor devotion. Only the Romans and Hindus had a structured system of adoption in their ancient legal systems. The major goal of adoption in both of these systems was to provide a child to a childless couple and continue the family line.
Current scenario in Indian adoption
Adoption as a legal notion in India was only available to Hindus until recently. Also, where personal laws permit such adoption for any segment of the polity, there is an exception. A significant portion of the population could only serve as legal guardians for the children. Numerous progressive improvements have been brought about by the new paradigm, such as female Hindu adoption, girl child adoption eligibility, and so on. Because of our country's multicultural, multilingual, and multireligious feelings, identifying all complexities and implementing an efficient adoption policy across the country has been difficult.
With the rise of civilization, adoption will be utilised to assure the right to family for orphaned, abandoned, and surrendered children; the process of adoption will have an impact on secular as well as religious needs. The fundamental goal of adoption was to ensure that one's burial rights were carried out and that one's lineage was preserved. Adoption has recently been the finest approach for a youngster who has been separated from his or her biological family to re-establish a family. Various international human rights conventions specifically state the positive duty to offer protection and aid to children.
Adoption rates in India have always been low, however they have decreased in recent years: According to adoption statistics from the government's Central Adoption Resource Authority (CARA), there were 5,693 in-country adoptions in 2010, but only 3,276 in 2017-2018. These are appalling statistics for a country with such a large population. According to the Indian Society of Assisted Reproduction, there are currently only about 20,000 parents waiting to adopt, compared to the 27.5 million couples actively attempting to conceive but facing infertility.
TYPES OF ADOPTION IN INDIA
OPEN ADOPTION
It entails open communication between the two parties. The birth mother or parents can communicate with each other via letters, e-mails, phone calls, and even visits, and the biological mother can meet the child. This form of implementation entails creating a plan that can meet everyone's expectations and demands. When the adopted child reaches the age of 18 (in most countries), access is usually granted. In addition, the birth mother can meet potential relatives and choose which couple to visit.
SEMI OPEN ADOPTION
The birth parents and adoptive parents do not have to communicate with each other in a semi-open or mediated adoption. The mother, on the other hand, may continue to receive letters or photographs from the adoptive parents or the adoption agency with whom she is registered. This can go on until the youngster achieves the legal age of majority. Semi-adoption can be transformed into an open or closed adoption at any point in time.
CLOSED ADOPTION
In a closed adoption, neither set of parents has access to any information or communication concerning the other. Medical information from the birthing parents may be shared with the adoptive parents on occasion. However, the regulation may be strictly enforced at times, and no information is given with the adoptive parents at all. When a child is rescued or removed from an abusive situation, this can happen.
DOMESTIC ADOPTION
Domestic adoption occurs when the adoptive and birth parents are from the same nation and the adoption takes place within that country. Any licenced government agency can help a couple that wants to adopt a child. An investigating officer will check their information and determine whether or not they are qualified to adopt a kid. The couple can adopt a child after the paperwork are completed.
INTERNATIONAL ADOPTION
This is the procedure for adopting a child from a country other than India. Private lawyers or an overseas adoption agency are typically used. International adoption is permitted in only 88 countries throughout the world. Six countries are in Africa, 20 are in Asia, 32 are in Europe, and 30 are in Latin America. The children would range in age from infancy to adolescence. The expected cost ranges from 5 lakh Indian rupees to 21 lakh rupees. Who can adopt is determined by the agency country. Depending on the age of the child, it could take anywhere from six months to several years to get one.
ADOPTION LAWS IN INDIA
HINDU ADOPTION AND MAINTENANCE ACT
Adoption, according to Indian law, is an issue of personal law and is thus controlled by a number of statutes. The Hindu Adoption and Maintenance Act, 1956 governs adoptions in Hindu law. The Act covers all Hindus, including Buddhists, Jains, and Sikhs, as well as everyone who is not a Muslim, Parsi, Jew, or Christian by religion.
Adoptions can be made by the following people under this Act:
a. Any Hindu man of sound mind who is not a minor and who is qualified to adopt a son or daughter; however, if the male has a live spouse at the time of adoption, his spouse's approval is required.
b. Any Hindu woman who is not married or has had her marriage dissolved, or whose husband is deceased or has been pronounced incapable, is eligible to adopt a son or daughter.
If the family already has a biological child, the adoption of a kid of the opposite sex is permitted. In the case of a female adopting a male child, the female must be at least 21 years older than the son.
When a male adopts a female child, the male must be at least 21 years old.
The rights of an adopted child are the same as those of a natural child. This Act makes adoption irreversible.
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The Guardian and Ward Act ,1980
In India, personal laws such as Muslim Law, Christian Law, and Parsi Law do not recognise total adoption. In India, there is no legal way for non-Hindus to adopt a kid; they can only acquire a 'guardianship' under the Guardian and Ward Act, 1980.
Guardianship, on the other hand, does not confer the same status as a biological kid. As previously stated, an adopted kid does not have any legal right to inherit property under the Hindu Adoption and Maintenance Act, 1956. Only a guardian-ward relationship is recognised by this Act, and it lasts until the ward reaches the age of 21.
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000
The Juvenile Justice (Care and Protection of Children) Act of 2015 covers both youngsters who are in legal trouble and children who are in need of care and protection. It provides a comprehensive framework for domestic and international adoption of orphans, abandoned children, and children who have been relinquished.
The Juvenile Justice Act is a key piece of legislation in the United States. Prior to the enactment of this legislation, there was no universal statute dealing with the care and protection of adolescents or children. Every state had its own set of child-related laws, which differed substantially. Because definitions vary widely and there is no national uniformity, the intended target groups of these legislation were likewise diverse. From one state to the next, the concept of a kid was different.
4. CENTRAL ADOPTION RESOURCE AUTHORITY
CARA is a government of India agency under the Ministry of Social Justice and Empowerment. It was established on June 20, 1990, to handle all aspects of adoption in India. Its mission is to mandate and regulate both domestic and international child adoption in India. Under the rules of the Hague Convention on Inter-country Adoption, 1993, adopted by the Government of India in 2003, CARA is appointed as the Central Authority to deal with inter-country adoptions. Through its affiliated/ accredited adoption agencies, CARA primarily deals with the adoption of orphaned, abandoned, and surrendered children.
Procedure for a valid adoption
The Hindu Adoption and Maintenance Act of 1956 allows a party interested in adoption to apply to the Child Welfare Agency. Adoption Coordinating Agencies (ACAs) can be located in each state's capital city, or agencies certified by the Central Adoption Resource Authority (CARA) in New Delhi can register.
Following that, the agency conducts a preliminary interview with the adopting couple to learn more about their goals and motivations for adopting.
When a party determines which kid they want to adopt, they file a petition with the court of appropriate jurisdiction, where an adoption hearing is held (the court is required to dispose the adoption case within 2 months).
The adoption is complete after the Court issues the decree.
CASES
Sawan Ram V. Kalawanti
In this case, the deceased had left a widow behind. Several assets and sections of the estate had been mortgaged to another people by the widow at the time of his death, and some had been transferred to the Grand Niece. Because the appellant was the deceased's closest cousin, the appellant claimed that the mortgage and property transfer were invalid. The widow adopted a kid while the matter was pending, and the lawsuit was dismissed.
Following the widow's death, the appellant filed a new claim for a piece of the estate, claiming that the adoption was fictitious and that the government had not awarded the adoption property rights. The court ruled that a Hindu woman's adoption would make her a member of her late husband's family, not only for herself but also for her deceased husband. Because the adopted child loses all rights to his original family, comparable rights in the adoptive family are to be substituted, and he would be provided privileges as an adopted husband's son to a member of that family.
Ankush Narayan v. Janabai (AIR 1966 Bom 174)
The Court decided that when a widow adopts a son, the adopted boy becomes the son of the deceased adoptive father, and the status under Hindu law as to relationships in the adoptive family remains unchanged.
Guradas v. Rasaranjan.
Adoption occurs after the real giving and taking has occurred, rather than during a religious rite such as Datta Homam. It would be necessary to bring records of a genuine giving and taking Ceremony in order to have a lawful adoption.
Darshana Gupta vs. None and Ors
In this case,the court held that the child to be adopted is an orphaned, abandoned, or surrendered child, or a child in need of care and protection as defined by the Juvenile Justice Act, the Hindu Adoption and Maintenance Act's Section 11(i) and (ii) do not prevent a Hindu with a biological child from adopting a child of the same gender. Acts were liable to be construed harmoniously in the changed social context to facilitate the rehabilitation and social reintegration of orphaned, abandoned, and surrendered children - hence, the adoption of a little girl to the Appellant was ruled maintainable.
CONCLUSION
Adoption as a means of societal survival may be the most advantageous path. The possibility of a youngster finding a family is something to be hopeful about. Adoption agencies are now structured industries that are strictly regulated by the state and federal governments. When the Indian government became involved in monitoring and regulating inter-country adoption rules, domestic adoption took off. Adoption's psychological implications are difficult in every way, but working with social workers and therapy can help families plan for the future. The overall number of children abandoned or surrendered has dropped as a result of the Indian government's ban on child abortion and the development of the Indian economy.
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