Adoption under Indian Law by Hindu and Muslim Parents

28 February, 2023

Share on:

“The bond that links your true family is not one of blood, but of respect and joy in each other’s life.”

Adoption is a benevolent act of raising someone else’s child as your own and usually refers to the legal process of becoming a non-biological parent of an orphan, abandoned, or surrendered child. According to Child Welfare Information Gateway, “Adoption is the social, emotional, and legal process in which children who will not be raised by their birth parents become full and permanent legal members of another family while maintaining genetic and psychological connections to their birth family.” 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.” The main motive behind the law of adoption is to provide relief and consolidation to a childless person as well as to rescue the unwanted, helpless, or orphan child by providing the child with parents, homes, and other necessities. As per the Annual report of CARA (Central Adoption Resource Authority), 3142 and 417 in-country and inter-country adoption respectively were initiated in 2020-2021. CARA is a nodal body of the Ministry of Women & Child Development, Government of India for the adoption of Indian children. It also monitors and regulates both in-country and inter-country adoptions. In India, there is no separate Act that helps foreign citizens or NRIs to adopt a child but the Guidelines Governing Adoption of Children, 2015 allow for the same. In context with these guidelines, no individual can adopt a child for illegal use and states that foreign parents can adopt an Indian child before he or she completes three years of age. The current article provides brief information regarding the Hindu and Muslim laws for adoption with relevant Acts in the Indian Constitution.

Adoption according to Hindu Law

The Hindu Adoption and Maintenance Act, 1969, (HAMA)

This Act ensures “to amend and codify the law relating to adoption and maintenance among Hindus.” HAMA is applicable all over India except the State of Jammu and Kashmir. The Act applies to any Hindu, Buddhist, Sikh, or Jain by religion and is not applicable to any Muslim, Christian, Jew, or Parsi. According to Manusmriti, adoption is described as nurturing someone’s son as one’s own whereas the Hindu Adoption and Maintenance Act gave a broader view of the word adoption by replacing the word ‘son’ with ‘child’ including both girl and boy. If any adoption is made under the provisions of HAMA, it is considered to be valid or otherwise void. It has been determined that the consent of the wife and the actual ceremony of adoption are the two essential conditions for establishing a valid adoption. Section 6 of the Hindu Adoption and Maintenance Act illustrates important provisions for adoption to be valid which are mentioned below:

Section 6(i): Adoption is valid only if the person adopting the child has the capacity as well as right to do so.
Section 6(ii): Any person giving in adoption should be legally capable of giving in a child for adoption.
Section 6(iii): The child to be adopted should be capable of being adopted
Section 6(iv): The adoption ceremony named “Datta Homam” is performed to ensure valid and legal adoption where “the biological parent voluntarily surrender and handover the child to the recipient, following religious ceremonies.”

Who may adopt a child?

Adoption of a child by a Hindu Male

Under Section 7 of the Hindu Adoption and Maintenance Act,

Any Hindu male who is physically and mentally fit can adopt a child either a girl or boy, provided that he should not be a minor.
If he is married or has a living wife then the consent of the wife is also important for the same unless or until she has completely ceased to be a Hindu, renounced the world, or has been declared insane by the Court of competent jurisdiction.
At the time of adoption, if a Hindu male has more than one living wife then the consent of all the wives is necessary for adopting a child.

Adoption of a child by a Hindu Female

Under Section 8 of the Hindu Adoption and Maintenace Act,

Any Hindu Female who is not a minor and is physically as well as mentally fit is able to adopt a child either a girl or boy.
Also, any Hindu female either married, not married, divorced, widow, or whose husband has been declared insane or of unsound mind by the Court of competent jurisdiction has the capacity to adopt a child.

Who can give a child for adoption?

Under Section 9 of the Hindu Adoption and Maintenance Act,

The authority to give a child for adoption is of the biological mother or father and the guardian of the child.
If the father of a child is alive then he alone has the capability to give a child up for adoption but the consent of the mother is also important. The same does not apply in case she has completely renounced the world or declared her to be of unsound mind by the Court of competent jurisdiction.
A mother can give a child for adoption, if the father of the child is either dead, has renounced the world, is of unsound mind or converted to some other religion than Hindu.
This section of the Act clearly highlights that adoptive parents of a child cannot give the child up for further adoption.
A Guardian has the capability to give up the child for adoption if both parents of the child are either dead, have abandoned him, are of unsound mind, or have renounced the world. For giving up a child for adoption, Guardians have to take permission from the Court by ensuring that adoption is initiated for the welfare of the child and no payment is made in exchange for the child.

Important conditions to be fulfilled for Adoption by Hindu couples or single parent

Under Section 11(i) of the Act, the adoption of a son by a Hindu male or female can only be granted if they do not have a living son, grandson, or great-grandson (whether by legitimate blood relationship or by adoption) at the time of adoption.
Section 11(ii) states that the adoption of a daughter by a Hindu male or female can only be granted if they do not have a living daughter or, granddaughter (whether by legitimate blood relationship or by adoption) at the time of adoption.
Sections 11(iii) and 11(iv) state that a male or female, who wants to adopt a girl or boy child, should be at least 21 years older than the girl or boy to be adopted respectively.
Two or more persons cannot adopt the same child simultaneously, Section 11 (v).
Section 11(vi) states that the child to be adopted should be given up for adoption as per the guidelines mentioned under Section 9 of this Act.

After adoption, the life of an adopted child completely changes as he or she becomes a part of the new family by dissolving all their routes with the previous family.

The Juvenile Justice (Care and Protection of Children) Act, 2015

According to JJ Act, 2015, a couple or a single parent can adopt any child either abandoned, orphan, or surrendered provided that the provisions of this Act do not apply under the child’s adoption in HAMA. Section 57 of the JJ Act highlights the capacity of a male and a female to adopt a child and group them as PAP which is listed as follows:

The parents should be fully prepared to adopt a child both physically and mentally.
The consent of both spouses is mandatory in case of married couples adopting a child.
The minimum age difference between the parents and the adoptive child should be 25 years.
A single male cannot adopt a girl child.
Two years of stable marital relationship is required while giving any child to a married couple.

Also Read: Animal Cruelty and essential religious practices

The Guardians and Wards Act of 1890

This Act grants only a guardian-ward relationship and does not provide the same status to the child as of his or her biological family as well as provided under the Hindu Adoption and Maintenance Act. When the child completes 21 years of age, the legal guardian-ward relationship is invalid and the child has the capacity to cut off the relation with his or her adoptive parents. They do not have an automatic right of inheritance as in case of the Hindu Adoption and Maintenance Act. In this Act, Section 57 deals with the eligibility of PAP (Prospective Adoptive Parents) and states that adoptive parents should be financially sound, physically fit, mentally alert, and highly interested in adopting a child for his or her good upbringing. In accordance with the Guardians and Wards Act, a single male cannot adopt a girl child whereas a single or divorced person can also adopt the child as per the provisions of the Act.

Adoption according to Muslim Law

In Islam, the concept of adoption does not exist however, an alternative concept which is more like sponsorship is present under Muslim Law, it is termed ‘Kafala’. This means that the child will not have any legal right over the inheritance of the adoptive parents although adoptive parents can gift the property to him. This raises the question of whether there is any existence of adoption in Muslim law or not. It can be determined that the existence of adoption in Muslim law is defined as the practice of sponsorship (Kafala) as well as adoption can be done if any custom or usage permits it. Adoption among Muslims was recognized by custom before the Shariat Act, 1937, whereas if no declaration has been made under this Act then any individual can prove the custom of adoption. Though there is no provision of adoption in Muslim law, still it is not prohibited.

Thus, there is the existence of adoption under Muslim law, the question is how it can be done. There are two methods for non-Hindus to adopt a child that is under the provisions of the Guardians and Ward Act, 1890, and the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006. Any individual interested in adopting a child belonging to the Muslim religion can take guardianship of the child under Section 8 of the Guardians and Wards Act, of 1890. In context with this Act, a child is not determined as an adopted child but is addressed as a ward and will not be considered as their own natural child as in the case of the HAMA. Therefore, for adopting a child, a Muslim couple or a single parent can adopt under the JJ (Care and Protection of Children) Amendment Act, 2006, and can provide all legal rights to the children. Section 40 of this Act deals with the rehabilitation of the child and social integration through foster care, adoption, sponsorship, and sending a child to an after-care organization.

Case Laws

Shabnam Hashmi vs Union of India

In this case, Shabnam Ansari claimed that adoption should be allowed as a fundamental right as well as on the basis of humanism. The judgment further stated that any person can adopt a child under the JJ (Care and Protection of Children) Act, 2000, irrespective of their religion.

State vs. Ashabuddin

In this case, Delhi High Court held that a Muslim person cannot be prohibited from availing the rights of the JJ (Care and Protection of Children) Act just because he is governed under the personal laws of a Muslim.

Conclusion

In a nutshell, it has been determined that there are various laws in India for the adoption of children in both Hindu and Muslim religions but the process to do so is somehow complicated. Therefore, there is a requirement to reconsider the procedure for the adoption of children. Moreover, there is a need to address the rights of the LGBTQ community for child adoption as they are the most willing people to adopt a child for their welfare. According to the law, adoption is not permitted or prohibited on the basis of sexual orientation but LGBTQ persons can individually adopt a child but not as a couple because they are not treated equally in the eyes of the law.

Also Read: Supreme Court Updates