Overview of Adoption Procedure in India
Introduction
This Article basically tells about the laws relating to the Adoption in India. This is the legal process in which the biological parents of the child can transfers all the rights with respect to their child to the Individual or Couple. The Indian Legislature enacted these laws with an intention to protect the rights of the child and also to protect them from conduct of malpractice under the purview of the adoption.
That the judiciary and legislature plays an important role for the development of society. That time to time the judiciary and legislature made necessary changes in the laws exist in the society for the welfare of the General Public Also the Judiciary and Legislature are more stringent on the laws which are related to the protection of the children namely Hindu adoption and Maintenance Act, 1956 (HAMA ACT), Guardians and Wards Act, 1890 and Juvenile Justice (Care and Protection of Children) Act, 2015, as amended in 2021 (JJ ACT)
Earlier, adoption was governed only by personal law, under which non-Hindus could not statutorily adopt a child. The JJ Act, 2015 is a uniform legislation that applies irrespective of caste and religion. It did not replace the Hindu Adoptions and Maintenance Act, 1956 or the Guardians and Wards Act, 1890: both remain fully in force, and Section 56(3) of the JJ Act expressly provides that it does not apply to adoptions made under HAMA. The JJ Act adds a second, secular route to adoption that is open to everyone.
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The Act enabled smooth functioning of adoption procedures for orphans, surrendered, and abandoned children while making the Central Adoption Resource Authority (CARA) the statutory body for adoption-related matters.
Meaning of Adoption:
The adoption is a kind of legal procedure in which the individual whether married or unmarried can adopt the child. The biological parents of the child transfer all the rights, privileges, responsibility to the adopting parents. The adopted child gets all the privileges after the complete process of adoption as a natural child of the adopting parents.
That the after the enactment of the Hindu adoption and Maintenance Act, 1956. The procedure of the adoption is legally governed under personal laws. Under this Act, the provisions related to the Adoption are given under sections 5 to 17 under this act which basically tells about the eligibility for the purpose of adoption. As per this Act the adopting parents whether Male/Female should be of sound mind and also the consent should be given which is affirmative consent and it should be in writing. The adopting parents need to fulfil the conditions given under section 6 along with additional condition given under section 11 of this Act.
That after the commencement of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ ACT), The above law come with more stringent provision for the protection of the child. Under JJ Act, the married couple can adopt the child only after completion of stable married life of at least two years. And the age gap between the adoptive parents and the adoptive child should be twenty-five years, Moreover, such age related restrictions should not be applicable in a case where the adopting child belongs from the relatives or step parents.
Under JJ Act, a married person, whether male or female, can adopt the child with the consent of other spouse. Even, if where spouses are separated as their partner will still have to consent to the adoption.
Categories of the child covered
The government has taken various steps for the welfare of the child, established the child welfare committee for the purpose of taken care all the below categories of the child.
- Abandoned Child
- Surrendered Child
- Orphan Child
- Child of relatives
- Child or Children from earlier marriage
Surrendered child is a child who is relinquished by the biological parents or guardian to the committee on account of physical and emotional stability issues. The Abandoned child is a child which is deserted by their biological parents and the Orphan child is the child who is without biological parents, adoptive parents and legal guardian.
Requirement for Adoptive Parents
An individual/couple may legally adopt the child after adopting the due process of Law for the time being in force. That even the Female/Male after the separation legally adopt the child and become the lawful adoptive parents. The procedure is laid down by the Central Adoption Resource Authority (CARA) in the Adoption Regulations, 2022 (which replaced the Adoption Regulations, 2017 and the earlier Guidelines of 2015), framed for the welfare of the adopted child and the adoptive parents.
That Prospective adoptive parents (PAP) need to follow the guidelines at the time of process of Adoption. According to the JJ Act, the adoptive parents must fulfil the below conditions before starting the process of adoption.
- That the Adoptive parent(s) or prospective adoptive parent(s) must be physically, mentally and emotionally stable also the parent(s) should be financially capable and also not suffering from any life threatening disease.
- That if the Adoptive parent(s) or prospective adoptive parent(s) is a couple either separated or not, the consent of the other spouse is necessary/mandatory.
- That if Adoptive parent(s) or prospective adoptive parent(s) is a couple and want to adopt in such case the couple must have the stable marital relationship of 2 years.
- That if Adoptive parent(s) or prospective adoptive parent(s) is Female and want to adopt in its individual capacity can adopt the child of any gender either male or female.
- That if Adoptive parent(s) or prospective adoptive parent(s) is Male and want to adopt in its individual capacity can adopt the child of only male gender.
- That there must be gap of 25 year(s) between adopted child and Adoptive parent(s) or prospective adoptive parent(s).
- That the Adoptive parent(s) or prospective adoptive parent(s) follow the criteria for composite age and Individual age.
| Age slab of the Child | Maximum Composite Age of Adoptive parent(s) or prospective adoptive parent(s). | Maximum Individual Age of Adoptive parent(s) or prospective adoptive parent(s |
| 0-2 years | 85 years | 40 years |
| 2-4 years | 90 years | 45 years |
| 4-8 years | 100 years | 50 years |
| 8-18 years | 110 years | 55 years |
Procedure of Adoption
Role of Specialised Adoption Agencies
Important update: Since 1 September 2022, when the Juvenile Justice (Care and Protection of Children) Amendment Act, 2021 came into force, adoption orders under the JJ Act are passed by the District Magistrate (including the Additional District Magistrate) and no longer by the civil court. Section 61 of the Act and the Adoption Regulations, 2022 now require the District Magistrate to dispose of the adoption application within two months. The steps below describe the current procedure before the District Magistrate.
- The Specialised Adoption Agency shall file an application before the District Magistrate having jurisdiction over the place where the Specialised Adoption Agency is located, with the relevant documents in original as specified in the Adoption Regulations, 2022, within ten working days from the date of matching of the child with the prospective adoptive parents and in case of inter-country adoption, from the date of receiving No Objection Certificate from the Authority, for obtaining the adoption order from the District Magistrate.
- The Specialised Adoption Agency shall file the application in the format prescribed in the Schedules to the Adoption Regulations, 2022, as applicable.
- In case the child is from a Child Care Institution, which is not a Specialised Adoption Agency and is located in another district, the Specialised Adoption Agency shall file the application before the District Magistrate of the district where the child or the Specialised Adoption Agency is located and in such a case, the Child Care Institution will be a co-petitioner along with the Specialised Adoption Agency and the Child Care Institution shall render necessary assistance to the Specialised Adoption Agency concerned.
- In case of siblings or twins, the Specialised Adoption Agency shall file a single application before the District Magistrate.
- Since an adoption case is non-adversarial in nature, the Specialised Adoption Agency shall not make any opposite party or respondent in the adoption application.
- The District Magistrate shall hold the adoption proceeding in camera and dispose of the case within a period of two months from the date of filing of the adoption application by the Specialised Adoption Agency, as provided under sub-section (2) of section 61 of the Act (as amended in 2021).
- The adoptive parents shall not be asked in the adoption order to execute any bond or make investment in the name of the child, considering the fact that their psycho-social profile and financial status have already been ascertained from the Home Study Report and other supporting documents.
- The Specialised Adoption Agency shall obtain a certified copy of the adoption order from the District Magistrate and shall forward it to the prospective adoptive parents within ten days and it shall also post a copy of the order and update the relevant entries in the Child Adoption Resource Information and Guidance System.
- Registration of an adoption deed shall not be mandatory as per the Act.
- The Specialised Adoption Agency shall apply to the birth certificate issuing authority for obtaining the birth certificate of the child within three working days from the date of issuance of adoption order, with the name of adoptive parents as parents, and date of birth as recorded in the adoption order and the same shall be issued by the issuing authority within five working days from the date of receipt of the application.
- The Specialised Adoption Agency shall submit an affidavit to the court while filing a petition as provided in Schedule XXIII.
Conclusion.
At the end if we conclude the topic after saying that the intention of law makers for making the laws for the welfare of the child. The law maker keep in mind that the child should not be abused in any manner because now a days, many rogue elements of the society misuse the law and take the undue advantage for the wants of money to fulfil their desire. Also some of the biological parents wilfully deserted their child for the wants of male child and the people will throw the girl child from their house into garbage/dustbin. Hence the government for the protection of child has taken steps after forming the stringent laws relating to the adoption. This is the reason behind the enactment of the new law for the welfare of the child. Adoption in India is the best way where the child gets a family’s environment. So that the child get the better standard for life after the process of adoption.
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