Adoption in India

LEGAL FRAMEWORK GOVERNING
ADOPTION IN INDIA
Submitted by
R.VIGNESHWARAN
Reg. No. BA0150050
Under the Guidance of
Ms. PRANUSHA KULKARNI
TAMIL NADU NATIONAL LAW SCHOOL

(A State University established by Act No. 9 of 2012)
Tiruchirappalli
Tamil Nadu 620 009
SEPTEMBER 2016
Ms. PRANUSHA KULKARNI

Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu 620 009
CERTIFICATE
This is to certify that the project work entitled Legal Framework Governing
Adoption in India is a bonafide record of the research work done by
R.Vigneshwaran, under my supervision and guidance. It has not been submitted to
any other University for the award of any degree, diploma, associateship, fellowship
or for any other similar recognition.
Place: Tiruchirappalli
Date: 28th September 2016
Signature of the Guide
R.VIGNESHWARAN
Reg. No. BA0150050
II Year B.A., LLB., (Hons.)
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu 620 009
DECLARATION
I, R.Vigneshwaran, do hereby declare that the project entitled Legal Framework
Governing Adoption in India submitted to Tamil Nadu National Law School in
partial fulfilment of requirement for award of degree in Under Graduate in Law to
Tamil Nadu National Law School, Tiruchirappalli, is my original research work. It
and has not been formed basis for award of any degree or diploma or fellowship or
any other title to any other candidate of any university.
Counter Signed Signature of the Candidate

Project Guide
LEGAL FRAMEWORK GOVERNING ADOPTION IN INDIA
ACKNOWLEDGEMENT
I would like to extend my gratitude to the many people who helped to bring this research
project to fruition. First, I would like to thank Ms Pranusha Kulkarni, for providing me the
opportunity of expressing my talent and opinion of particular case. I am so deeply grateful for
her help, professionalism, valuable guidance and support throughout this project and through
my entire study that I do not have enough words to express my deep and sincere appreciation.
I would also like to thank the experts who were involved in the validation survey for this
research project. Without their passionate participation and input, the validation survey could
not have been successfully conducted. I would also like to acknowledge
Professor Bomminathan as the second reader of this project, and I am gratefully indebted to
him for his very valuable comments on this project work.
My thanks also go to the all my friends for their numerous conversations, questions and help.
Finally, I must express my very profound gratitude to my parents for providing me with
unfailing support and continuous encouragement throughout my research of study and
through the process of researching and writing this project. This accomplishment would not
have been possible without them.
R.VIGNESHWARAN.
4
S. No CONTENTS Page
CHAPTER I
1.1 Introduction 6
1.2 Adoption A concept of law 8
1.3 Adoption under various law 9
1.4 Adoption under English law 9
1.5 Concept of Adoption in Ancient India 10
1.6 Concept of Adoption in Present India 11
CHAPTER II
2.1 Hindu law 12

2.2 Adoption under Hindu law 13
2.3 Hindu Adoption and Maintenance Act 1956 13
2.4 Requirements for a valid adoption 14
2.5 Effect of adoption 18
2.6 Gender bias 21
2.7 The Personal Law Amendment Act 2010 22
2.8 Hindu Minority and Guardianship Act 1956 23
CHAPTER III
3.1 The Guardian and Wards Act 1890 24

3.2 Legal procedures under the Guardian and Wards Act 1890 24
3.3 Adoption under Muslim 26
3.4 Adoption under Parsi 28
3.5 Adoption under Christian law 28
CHAPTER IV
4.1 The Juvenile Justice Act 2000 30

CHAPTER V
5.1 Inter-country Adoption 33

CHAPTER VI
6.1 Central Adoption Resource Agency (CARA) 35

6.2 Basic guidelines for adoption 36
6.3 Uniform Civil Code for adoption 36
CHAPTER VII
7.1 Critical Analysis 38

CHAPTER VIII
8.1 Bibliography 41
5
Adoption has the dimension of connection not only to your own tribe, but beyond
widening, the scope of what constitutes love, ties and family. It is a larger embrace. By
adopting we stretch past our immediate circles and by reaching out; find an unexpected sense
of belonging with others
- Isabella Rossellini.
CHAPTER-I
1.1 INTRODUCTION
Children are considered a bundle of joy and on whom the future of the country depends.
While on one hand children born in India are being pampered and exclusively taken care of
and given all the necessities for their all round-development. Comparatively on the other
hand there are over 60,000 children being abandoned per year in India1.
In some cases these children become victims of human trafficking 2 and sexual
violence3. In fortunate cases, the abandoned children are taken to any adoption agency and
may hope for a better life while waiting till they get adopted by someone. Such kinds of
children are being given a chance at a second life through the process called adoption.
In the simpler dictionary meaning adoption is a process whereby a person assumes

the parenting for another and in doing so permanently transfers all rights and
responsibilities along with filiation i.e., the determination of paternity from the biological
parent or parents.
The author is of the opinion that while anyone can choose to care for a child in need
for short or long-term periods, such as a foster care situation, but adoption is a different
1 Almas Shaikh, Adoption Laws in India, http://www.lawctopus.com/academike/legal-framework-

governing-adoption-laws-india/ accessed on 10th September 2016
2 Child trafficking according to the UNICEF is defined as any person less than 18
years of age who is recruited, transported, transferred, harboured or received for
the purpose of exploitation either within or outside a country. In India there is a
large number of children trafficked for various reasons such as labour, begging
and sexual exploitation.
3 P.M. Nair, A report on trafficking in women and children in India,

http://nhrc.nic.in/Documents/ReportonTrafficking.pdf accessed on 10th September 2016
6
situation that requires a much different commitment. Adoption is the legal act of permanently
placing a child with a parent or parents other than the birth parents. In this process, the
parental rights of the birth parents are permanently terminated. The adoptive parents then
assume the full legal responsibility for the child. The child, in turn gains the same legal rights
as that of a child born to the adoptive parents.
Adoption means the connection between the child and the caregiver is legal and
binding on both parties, not just convenient. Adoption involves a great deal of paperwork, as
well as the assistance of lawyers, social workers and judges to finalize the process. It is a
permanent arrangement, just like a natural parent-child relationship. However, for most
families, adoptions are ultimately an act of love and the desire to enrich their family and the
life of the child who becomes a part of that family4.
The statistical data of adoption of child in India are falling drastically every consecutive
which shown graphically5:
4 Kathryn Patricelli, Introduction to adoption from the adoptive parent perspective,

https://www.mentalhelp.net/articles/introduction-to-adoption-from-the-adoptive-parent-perspective/
accessed on 24th September 2016
5 Rakesh Dubbudu, Demand for adoption more than four times the number of available kids,
http://www.newslaundry.com/2016/07/11/demand-for-adoption-more-than-four-times-the-number-of-
available-kids/ accessed on 25th September 2016
7
The adoption process is more prevalent between the age of 0-2 years and the ratio is
statistically shown in the figure from August 2015 to March 2016
1.2 ADOPTION - A CONCEPT OF LAW
Adoption as a legal concept was available only among the members of the Hindu family and
the Hindu parents are legally allowed to adopt the child as their natural born child.
Only Hindus were allowed to legally adopt the children and other communities could
only act as legal guardians of the children. The author is of the view that adoption has always
been considered as a wonderful opportunity to provide a child a beautiful family and parents.
8
It offers an excellent alternative to institutional care of destitute, abandoned and neglected

child in an atmosphere of love, affection and understanding which only a family can provide
and no other institution can replace it6.
The author is of the opinion that adoption is the institutionalised practise through
which an individual belonging by birth to one kinship group 7 acquires new kinship ties that
are socially and legally defined as equivalent to the congenital ties.
The term Adoption as defined under personal law means that the process through
which the adopted child is permanently separated from his biological parents and becomes
the legitimate child of his adoptive parents with all the rights, privileges and responsibilities
that are attached to the relationship8.
Adoption is the transplantation of a child from the family in which he/she is born, to
another family where he/she is given by the natural parents by way of adoption. The adopted
child is then taken as being born in the new family and acquires rights, duties and status there
only and the legal bond with the old family comes to an end.
The real concept of adoption is concerned with Hindus only. The adoption is not an
institution peculiar to Hinduism but also owes its origin to the social communism peculiar to
the primitive races. In early times, children irrespective of their sex were taken in adoption.
So adoption is a chance given for the abandoned children a new life9.
1.3 ADOPTION UNDER VARIOUS LAWS
HINDU LAW: The Hindu Adoption and Maintenance Act 1956 and Juvenile Justice Care and
Protection of Children Act 2000
6 William A. Dairty, International Encyclopaedia of social science, vol. 1, p.95
7 Kinship is the web of social relationships that forms an important part of the lives of most humans
in most societies. The study of kinship is the study of what man does with these basic facts of life
such as mating, parenthood and socialization.
8 Sangitha Krishnamurthi, Adoption Law in India, http://www.thealternative.in/society/adoption-law-

in-india/ accessed on 1st September 2016
9 Shuani, Adoption in India (An overview), http://www.yourarticlelibrary.com/adoption/adoption-in-

india-an-overview/47681/ accessed on 28th august 2016
9
MUSLIM LAW: There is no separate law to make the adoption legal under Muslim
Community.
CHRISTIAN LAW & PARSI LAW: The Guardians and Wards Act 1890
A Hindu can become a guardian only under Hindu Minority and Guardianship Act 1956.
1.4 ADOPTION UNDER ENGLISH LAW
The English law started recognizing adoption during the latter half of the nineteenth century.
Legal adoption came into existence only during 1926. The purpose of this Act was to prevent
the biological parents from claiming back their children. A more comprehensive Act was
passed in 1950. This Act was modified in the year 1958.
English law of adoption is very similar to the Hindu law of adoption inasmuch as that
it lays down that the adopted child for all intents and purposes becomes like a natural child
and the childs ties with his natural family are severed10.
1.5 CONCEPT OF ADOPTION IN ANCIENT INDIA
The ancient texts which throws the light on the concept of adoption in India were Dattaka
Mimamsa, Dattaka Chandrika, Manu, Yagnavalkya, Gautama, Baudhayana and Kautilya are
the very few important Hindu texts that throws the light on the concept of Adoption in ancient
India. Exclusively, Smritis deal with a host of subjects such as domestic rituals, customary
rites, inheritance etc. The Smritis like Manu, Yajnavalkya, Kapila, Lohita strongly discuss
about the concept of law of Adoption and Inheritance of the adopted child.
In all these texts it is mentioned that adoption is a process to incorporate a child

permanently into a family given with all the rights of a natural born child, in which he/she
was not been born. It also says that the child was adopted for temporal and spiritual purposes
and more recently, to satisfy the emotional and parental instincts of the adopters. In smritis
literature, the Law of Adoption was parent based and not child based. The smirtikaras
suggested that only one son could be adopted for the continuation of the family line. There
were opinions laid down in these texts that are the whole Smirits and Puranas ordain that the
only son shouldnt be given or received in an adoption.
10Almas Shaikh, Adoption Laws in India, http://www.lawctopus.com/academike/legal-framework-

governing-adoption-laws-india/ accessed on 28th august 2016
10
Another common prediction is that the adoption process should be done only by caste
and gotra based meaning thereby in olden days if the parents try to adopt the child then the
criteria for the adoption is that the child must also belong to the same gotra and caste as their
parents do. In Manu it points out that the gifting and sale of children is sinful in ancient India,
while nowadays it is recognized as adoption11.
1.6 CONCEPT OF ADOPTION IN PRECENT INDIAN LAW
The custom and practise of adoption in India dates back to the ancient times. Although the act
of adoption remains the same, the objective with which this act is carried out has differed it
usually ranged from the humanitarian motive of caring and bringing up a neglected or
destitute child to a natural desire for a kid as an object of affection, a caretaker in old age and
an heir after death of the particular person who adopts the child.
The author is of the view that since adoption comes under the ambit of the personal
laws, there has not been a scope in the Indian scenario to incorporate a uniform law among
the different communities. Hence, this law is governed by various personal laws of different
religions. So the concept of adoption is different among different personal law such as Hindus
alone can adopt under Hindu Adoption and Maintenance Act while under Muslim, Christian,
Parsis there is no adoption wherein they become only the guardian to the adopted child and
not the biological parent as it was in the case of Hindu adoption.
Adoption is not permitted in the personal laws of Muslims, Christians, Parsis and
Jews in India. Hence they usually opt for the guardianship of a child through the Guardians
and Wards Act 189012. Indian citizens who are Hindus, Jains, Sikhs or Buddhists are allowed
to formally adopt a child under the adoption is under the Hindu Adoption and Maintenance
Act of 1956. But nowadays, under the Juvenile Justice Act of 2000 which is a secular law in
11Naresh ChandraSengupta, Evolution of Ancient Indian Law;
https://www.scribd.com/doc/20167904/ADOPTION-IN-ANCIENT-INDIA accessed on 29th August 2016
12Nishant Mehrotra; Law governing Adoption in India; https://www.linkedin.com/pulse/laws-

governing-adoption-india-nishant-mehrotra accessed on 29th August 2016
11
which any religion can adopt a child. There is no such restriction or being imposed on the
parents to adopt the child only on some basic criterias this act provides and covers wide
range for adoption process. Most of the people in the recent days go for the adoption under
Juvenile Justice Act because under the Hindu Adoption and Maintenance Act one of the
drawback is that the children of same gender is not allowed to adopt even if the child are
twins, it is not legally valid under Hindu Adoption but valid under Juvenile Justice Act 2000.
For Example, if a couple want to adopt a male child under Hindu Adoption it is
possible only when they do not have a child under same gender. It is valid to adopt a male
child only when they have a female child but this restriction is not placed under Juvenile
Justice Act wherein the couple are legally allowed to adopt the child even though the parties
have same gender of child they are legally allowed to adopt the child.
CHAPTER-II
2.1 HINDU LAW
Hindu law is the only law in India which treats an adopted child as being equivalent to a
natural born child. The sole and the only reason for this is mostly because of the belief that a
son was indispensible for spiritual as well as material welfare of the family and because as to
continue as their legal heir and has to take care of them in the olden days.
Under the old Hindu law, only a male could be adopted and a female child could not
be adopted. Then even if a male child is adopted restrictions were imposed based on the caste
and gotra. A female child strictly could not be adopted under the Hindu Law. Under the Old
Hindu law only the male had a right to adopt and the consent or dissent of his wife to the
proposed adoption is immaterial13.
Under the modern Hindu Law every Hindu male or female has the capacity to make
an adoption provided he or she has attained the age of majority and are of sound mind. These
all provisions and legal rules come under the Hindu Adoption and Maintenance Act 1956.
The author is of the opinion that Hindu law is the only law which recognise adoption in the
true sense of taking of a son as a substitute for a natural born one. The reason for this is that
13Evolution of Marriage as a Social Institution,

http://shodhganga.inflibnet.ac.in/bitstream/10603/26528/8/08_chapter%201.pdf accessed on 10th
September 2016
12
only a son could fulfil the role of deliverer from the hell. The adoption of daughter was thus
not legally recognised though it was permissible where custom allowed it.
In the case of Bal Gangadhar Tilak v Shrinivas Pandit14, the privy council observed
adoption among the Hindus is necessary not only for the continuation of the childless fathers
name but also as a religious means to make those obligations and sacrifice which would
permit the soul of the deceased father passing from Hades to paradise. Similarly this was
also followed in the case law of Amarendra Mansingh v Sanatan Singh15 the privy council
observed 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 and the
solemnization of the necessary rites16
2.2 ADOPTION UNDER HINDU LAW
The adoption under Hindu law is governed by the Hindu Adoption and Maintenance Act,
1956.This Act is prospective and not applicable to pre-Act adoptions this was laid down in
the case of Nagireddi Lakshmi v Nagireddi Nagaraju17 .This Act of 1956 extends only to the
Hindus, which are defined under section 2 of the Act and include any person who is a Hindu
by religion, including a virashaiva, a lingayat or a follower of the Brahmo, prarthana or Arya
Samaj or a Buddhist, Jaina or Sikhs by religion to any other person who is not a Muslim,
Christian, Parsi or Jew by religion. It also includes any legitimate or illegitimate child who
has been abandoned both by this father and mother or whose parentage is not known and who
in either case is brought up as a Hindu, Buddhist and Jains or Sikh. Adoption is recognized
under the Hindus and is not recognized under Muslims, Christians and Parsi.
2.3 HINDU ADOPTION AND MAINTENANCE ACT 1956
Adoption in the Hindus is covered by the Hindu Adoption and Maintenance Act 1956, after
coming of this Act, all adoptions can be made in accordance with this Act. It came into effect
from 21st December 1956. Prior to this Act only a male could be adopted but the Act makes a
14 42 IA 135, p.154
15 60 IA 242
16 Kusum, Family Law 1, Lexis Nexis Publication, 4th edition, Haryana 2015
17 AIR 2005 AP 17
13
provision that a female may also be adopted. This Act extends to the whole of India except
the states of Jammu Kashmir. It applies to all Hindus, Buddhists, Janis and Sikhs and to any
other person who is not a Muslim, Christians, Parsi by religion.
The Hindu Adoption and Maintenance Act 1956, provides for adoption of Hindu
children by the adoptive parents belonging to Hinduism. This is not applicable to other
communities like Muslims, Christians and Parsi. They have to recourse to Guardians and
Wards Act 1890, where in this Act they become only guardians of the child and not the
parents of the child as it is in Hindu. They will be considered as guardians but the status
which is given among Hindus will not fit into this18.
To conclude by saying when a child is adopted under Hindu adoption that child is
recognised as natural born child but it is not the case among Christians or Muslims wherein
they can take up the position as guardians and not the biological parents. But the Hindu
Minority and Guardianship provides for the Hindus to act as guardians.
2.4 REQUIREMENTS FOR A VALID ADOPTION
Section 6 provides the requisites of a valid adoption. It lays down that no adoption shall be
valid unless the person adopting has the capacity as also has the right to take in adoption, the
person giving in adoption has the capacity to do so; the person adopted is capable of being
taken in adoption and the adoption is made in compliance with the other conditions
mentioned in the chapter II.19
The adoption is completed by an actual giving and taking and the ceremony is called
Datta homam this was the condition in the older days before the enactment of the
section 11 of the Hindu Adoption and Maintenance Act 1956. One of the important
requisites of the Hindu Adoption is the person adopting is lawfully capable of taking the child
and the person giving in adoption is lawfully capable of giving consent in Adoption.
The most possible questions that arise out of Hindu adoption are listed below:
a) Who are entitled to adopt a child under Hindu law?
18Romit Agarwal, Adoption: Hindu. Muslim, Christian and Parsi;

http://www.legalserviceindia.com/articles/hmcp_adopt.htm accessed on 1st September 2016
19 Kusum, op.cit., p.8
14
b) Whether it is Male or Female who is entitled to adopt or both is allowed to adopt the
child?
c) To adopt a child who has to give the child in adoption
d) What are the conditions for the adopted child ( criteria for the child to be adopted)
e) Is there any other condition for a valid adoption?
In this Act it is said that any adult Hindu male who is of sound mind can adopt a child.
If the man is married, then the consent of the wife is necessary.
The same criteria goes with the women also, like wise a female adult Hindu of sound
mind could adopt a child if she is:
Unmarried
Divorced
Widowed or
Her husband suffers from certain disabilities , the women is entitled to adopt only
when the below three requisites are also fulfilled:
The husband ceased to be a Hindu and Has renounced the world
That he has been declared to be of unsound mind by the jurisdiction of the court.
If the above all requirements are fulfilled then the husband and the women is legally entitled
to adopt the child.
a) Who may adopt i.e., who are entitled to adopt a child?
SECTION 7 and SECTION 8 of the Hindu Adoptions and Maintenance Act 1956, prescribes
the general capacity of Hindu male and female to adopt a son or daughter and it is
determined on the bases of capacity of a male and a female to adopt the child.
Section 7 deals with Capacity of Male.

Section 8 deals with Capacity of Female.
b) Whether it is male or female who is entitled to adopt?
Under the Hindu Adoption and Maintenance Act 1956, it is stated that both male and female
are entitled to adopt a child but under certain conditions which are given in section 7 and 8
respectively. Prior to the Personal Law Amendment Act 2010, a female adult Hindu can adopt
a child.
CAPACITY OF MALE SECTION 7
Section 7 of the Hindu Adoption and Maintenance Act 1956, prescribes the general capacity
of a Hindu male to take a son or a daughter in adoption if and only if:
15
He should possess sound mind

He should not be a minor, i.e., the age of the person should be of majority age as
prescribed under law.
If he has a wife living, he shall not adopt except with his wifes consent, unless his wife
has completely and finally renounced the world that:
She has ceased to be Hindu or
Has been declared by a court of competent jurisdiction to be of unsound mind.
If a person has more than one wife living at the time of adoption the consent of all the
wives is necessary unless the consent of one of them is unnecessary for any of the reasons
specified in the preceding points, if that satisfies then it is not necessary to get the consent
of that particular male who has more than one wife.
This section also provides that if the wife finds that the choice of the person to be adopted
by the husband is not appropriate or is not in the interest of the family then she can veto
his discretion.
The above point gives us the conclusion that the consent of the wife has been made as a
condition precedent for adoption by a male Hindu. The Act clearly points out that where both
the parents are dead or is legally incompetent to give in adoption, and then in that case the
guardian20 of the child may give the child in adoption with the permission of the court.
CAPACITY OF FEMALE SECTION 8
Section 8 of the Hindu Adoption and Maintenance Act, prescribes the general capacity of a
Hindu female to take/ adopt a son or daughter only when:
she is of sound mind

she is not a minor and
she is not married or if married;
whose marriage has been dissolved or
whose husband is dead or
has completely renounced to the world or
has ceased to be a Hindu or
has been declared by the court of competent jurisdiction to be of sound mind
If all the above requirements are fulfilled then the respective women has the capacity to take
a son or daughter in adoption. Where the woman is married it is the husband who has the
right to take in adoption with the consent of the wife.
20 A guardian means a person having the care of person and/ or property of the child and includes a
person so appointed by the will of the childs mother or father or by the court.
16
The above valid points gives us the conclusion that a female Hindu who is of sound mind and
has completed the age of eighteen years can also take son or daughter in adoption to herself
and in her own rights.
After the Personal Laws (Amendment) Act 2010, a females right to adopt has been brought
at par with the males rights.
c) & d) who may give child in Adoption and what are the conditions for the adopted
child (criteria for the child to be adopted)
Section 10 of the Hindu Marriage Act 1956 gives the answer for the above question that the
section provides that: No person except the father or mother or guardian of the child shall
have the capacity to give the child in adoption.
The father alone is alive shall have the right to give in adoption, but such right shall not
be exercised except with the consent of the mother unless the mother of the child has
completely and finally renounced the world or has ceased to be a Hindu or has declared
by a court of competent jurisdiction to be of unsound mind.
The mother of the child may give the child in adoption if the father is dead or has
completely renounced the world or has ceased to be a Hindu or has been declared as
unsound.
Whether both the father and mother are dead or have completely and finally renounced
the world and where the parentage of the child is unknown, the guardian of the child
may give the child in adoption with the previous permission of the court.
The court while granting the permission shall be satisfied that the adoption is for the welfare
of the child and due consideration and maintenance will be given to the wishes of the child.
Then he is bound to adopt the child.
e) What are the conditions for the person who is adopting i.e., who may be adopted?
No person can be adopted unless:
He or she is a Hindu
He or she has not already been adopted
He or she has not married, unless there is a custom or usage applicable to the parties
which permits persons who are married being taken in adoption.
17
He or she has not completed the age of fifteen years.
f) Is there any other condition for a valid adoption?
The other requirements for the adoption to be rendered as valid are laid down in
section 11 they are:
That while adopting a child one must take into consonance and consideration the
following points:
a. If the adoption is of a son, the adoptive father or mother by whom the adoption is made
must not have a Hindu son, sons son or sons sons son living at the time of adoption.
b. If the adoption is of daughter, the adoptive father or mother by whom the adoption is
made must not have a Hindu daughter or sons daughter living at the time of adoption.
c. If the adoption is by a male and the person to be adopted is a female, the adoptive father
is atleast twenty one years older than the person to be adopted.
d. If the adoption by a female and the person to be adopted is a male, the adoptive mother
is atleast twenty one years older than the person to be adopted.
e. The same child may not be adopted simultaneously by two or more parents; the child to
be adopted must be actually given and taken in adoption with intent to transfer the child
from the family of birth.
In case there is absence of compliance of any one of these rules prescribed by the statue the
Hindu Adoption and Maintenance Act 1956, the adoption would not be considered as valid
adoption21.
2.5 EFFECT OF THE ADOPTION
When once a child has been adopted that child severs all ties with his natural family where
he/ she is adopted with a privilege as a natural born child. All rights and obligations of natural
born children fall on him. The wife of a Hindu male who adopts is deemed to be adoptive
21 Kusum, op.cit; p. 9
18
mother. Where an adoption is made with the consent of more than one wife, the senior most
in marriage is deemed to be the adoptive mother and the rest are deemed to be step mothers22.
In the case of adoption by the widower or bachelor any women whom he subsequently
marries is the stepmother of the child. Similarly, in case of adoption by a widow or an
unmarried woman, any man whom she marries is deemed to be the step- father of the child.
All laws relating to the adoptive parents and/ or step parents can be seen in Section
12, 13 and 14 of the Hindu Adoption and Maintenance Act 1956. In this context, an issue
came up with a case.
CASE NAME: Sawan Ram v Kalavati
CITATION: AIR 1967 SC 1761
LEGAL ISSUE: Whether in the case of adoption by a widow, would the adopted child be
deemed to be the child of the deceased husband as well, so as to be heir.
DECISION: The Supreme Court held that the adoption would not only by the female, but
also to her deceased husband. Also, it has to be noted once adoption process made by the
parents cannot be cancelled by the parents, nor can the adopted child renounce the adoptive
family and go back to his/her birth parents.
Adoption is generally held to be permanent in nature, with neither parties going back
on their words. This has been stated in section 15 (Valid Adoption not to be cancelled) is laid
down in the Act. But care has to be taken that the adoption referred to in this section is a valid
adoption.
Section 12 also makes a clear view that from the date of the adoption, an adopted
child is deemed to be the child of his/her adoptive father or mother for all purposes and his
ties in the family of his or her birth shall stand severed and replaced by those created in the
adoptive family.
CASE NAME: Kartar Singh v Gurdial Singh
CITATION: 1973 Cur LJ 529 (Current Law Journal)
22 Deepak Kumar Verma, Hindu Adoption Laws & Interpretation by High Court,
http://www.nja.nic.in/2.%20Hindu%20Adoption%20Law%20and%20Judicial%20interpretation-
%20Deepak%20KR.Verma.pdf accessed on 11th September 2016
19
LEGAL ISSUE: where the respondent who was adopted by his maternal grandfather claimed
property rights in the family of his birth.
DECISION: The court said that upon adoption no rights remain in the family of birth.
The adoptive children have inheritance rights connected with their adoptive parents,
but not with their biological parents.
Section 12 lays down certain provision for the effect of adoption:
i. RESRTICTION ON THE MARRIAGE OF ADOPTED CHILD: The section clearly

point out that a restriction on the marriage of adopted child with a person to whom he
or she could not have married if he or she had continued in the family of his or her
birth.
ii. RIGHTS OF THE ADOPTED CHILD IN ACCORDANCE WITH PROPERTY: The
proviso saves the vested right of the adopted child in the property subject to the
obligation, if any attached to the ownership of such property, including the obligation
to maintain relatives in the family of his or her birth.
iii. Likewise, clause (c) to the proviso lies down that the adopted child shall not divest
any person of any estate vested in him or her before the date of adoption.
iv. This above provision is related to Section 16 which embodies a rule of presumption
lays down that whenever any document registered under any law for the time being in
force evidencing adoption and signed by the person giving and person taking the child
in adoption is produced before any court, then it shall presume that the adoption has
been made after complying with the provisions of the Act unless proved otherwise.
SECTION 13 PROVIDES THE RIGHT OF THE ADOPTIVE PARENTS TO DISPOSE

OF THEIR PROPERTIES
This section clearly provides that the adoptive child gets property rights in his new family,
but an adoption does not deprive the adoptive father or adoptive mother of the power to
dispose of his or her property by transfer inter vivo or by will, unless there is an agreement
imposing such restrictions.
20
Adoption once made is final and irrevocable. An adoption validly made cannot be
cancelled by the adopter, natural parents or any other person. Nor can an adopted child
renounce his adoptive parents and return to the family of his or her birth. This means that is if
a person makes an adoption, under no circumstances he or she gets rid of the child. An
adopted child cannot again be given in adoption23.
The author is of the idea that once an adoption has been duly made in accordance with law, it
cannot be cancelled nor can the adopted child, the adoptive parents and the natural parents
destroy the rights of the adopted.
2.6 GENDER BIAS
Though after the enactment of the Act, it has been noted that the gender discrimination has
been eliminated but still in actual sense it still exists. While the Act had considerably
improved and enlarged the rights of females in regard to giving and taking in adoption, yet
there was a bias against females in some respects.
For instance, a married female Hindu could not adopt a child not even with consent of
her husband. Whereas, a husband after the wifes consent could adopt but on the other hand a
wife even after husbands consent could not adopt. A married women could adopt only if her
marriage had been dissolved or she was a widow or if the husband has ceased to be a Hindu
or has renounced the world or has declared by a competent court to be of unsound mind.
Thus, an unmarried woman, a divorcee or a widow had more freedom in the matter than a
married woman.
Similarly, in the matter of giving a child in adoption also, the father had a better right.
If he is alive, he alone could give away the child though with his wifes permission.
The mother could not do so. Her right to give in adoption was restricted and she could
exercise the same only when the father is dead or had completely renounced the world or had
declared by the court of competent jurisdiction to be of unsound mind.
Thus, where the mother had given chance to give her son in adoption while the father
is alive and the female who adopted the child was only 19 years old compared to the adopted
child, the adoption is invalid on both the counts.
23 Bare Act, http://www.vakilno1.com/bareacts/hinduadoptionsact/hinduadoptionsact.html accessed

on 3th September 2016
21
To conclude by saying that there exists gender bias even though, adoption is legally
valid among Hindus still there is a gender Bias where the male acquires the superior position
but womens are inferior all through their life 24. But after the personal law amendment the
gender bias is discriminated. So the female with the consent of the wife can adopt a child.
CASE NAME: Malti Roy Chowdhury v Sudhindranath Majumdar
CITATION: AIR 2007 Cal 4, (2007) 1 CALLT 323 HC
LEGAL ISSUE: whether or not the married woman has the right to adopt the child?
DECISION: The court remarked that the adoption has to be taken factually or legally by the
male in case of marriage and not by the wife. In other words, the wife has no capacity to
adopt even with the consent of the husband.
The conclusion will be that the law has taken of the Gender Discrimination in the Act
and hence passed The Personal Laws (Amendment) Act 2010, giving right to married
females to adopt with husbands consent but this is not likely to change the fate of married
females placed in the position of the disabled, deserted.
2.7 THE PERSONAL LAWS AMENDMENT ACT 2010
After the enactment of the Hindu Adoption and Maintenance 1956, the various sections of
these statutory provisions underwent several amendments. The statue was put into scrutiny
and these proposals for amendments were made. These proposals were then incorporated
through the personal law amendment, Act 2010.
Thus here a few amendments in section 8 and section 9 of the Hindu marriage and
Adoption Act 1956 that are incorporated in the statutes25.
AMENDMENT OF SECTION 8:
In the Hindu Adoption and Maintenance Act 1956 for section 8, the following section shall be
substituted namely:
24 Kusum, op.cit, p.13
25 Prachi Dutta, Gender Inequality and Hindu Perssonal Law,

http://indialawjournal.com/volume8/issue-1/article10.html, accessed on 4th September 2016
22
CAPACITY OF A FEMALE HINDU TO TAKE IN ADOPTION
Any female Hindu who is of sound mind and is not a minor has the capacity to take son or
daughter in adoption: provided that, if she has a husband living, she shall not adopt a son or
daughter except with the consent of her husband unless the husband has completely and
finally renounced the world or has ceased to be a Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind.
AMENDMENT OF SECTION 9(2)
In the Hindu Adoption and Maintenance Act 1956, section 9(2) provides: (2) Subject to the
provisions of subsection (4), the father or mother, if alive shall have equal right to give a son
or daughter in adoption: Provided that such right shall not be exercised by either of them shall
with the consent of the other unless one of them has completely and finally renounced the
world or has ceased to be Hindu or has been declared by a court of competent jurisdiction to
be of unsound mind; (ii) sub-section (3) shall be omitted26.
2.8 HINDU MINORITY AND GUARDIANSHIP ACT 1956
The Hindu Minority and Guardianship Act 1956 have codified laws of Hindus relating to
minority and guardianship. As in the case of unmodified law, it has upheld the superior right
of the father.
It lays down that a child is a minor till the age of 18 years. Natural guardian for both
boys and unmarried girls is first the father and then the mother. Prior right of mother is
recognized only for the custody of children below five. In case of illegitimate children, the
mother has a better claim than the acknowledged father. The act makes no distinction
between the person of the minor and his property and therefore guardianship implies control
over both. The Act directs that in deciding the question of guardianship, courts must take the
welfare of child as the paramount consideration27.
Section 6 of this Act provides about the natural guardians of a Hindu minor.
Section 7 of the very Act speaks about the guardianship of the adopted son.
26 Prof Kusum, op.cit, p.13
27 Dr. Vijay Pal Khanagwal& Dr. Pawan Mittal, Legal aspects of legitimacy in Indian Perspective:
An overview, http://medind.nic.in/jbc/t12/i2/jbct12i2p111.pdf accessed on 31st August 2016
23
CHAPTER III
STATUS GOVERNING OTHER RELIGION
3.1 THE GUARDIANS AND WARDS ACT 1890
As the name itself suggest, the Hindu Adoption and Maintenance Act 1956 were mostly the
guidelines for the Hindu society. Another law had to be made which was sensitive to the
personal laws of other religion like Christians, Muslims, Parsis and Jews which did not come
under the Hindu Adoption and Maintenance Act of 1956. But these are governed by the
Guardians and Wards Act of 1890.
Personal laws of Muslims, Christians, Parsis and Jews do not recognize complete
adoption. As non-Hindus do not have an enabling law to adopt a child legally, the people
belonging to these religions who are desirous of adopting a child can only take the child in
guardianship under the provisions of the Guardianship and Wards Act 1890.The statute
does not deal with the adoption as such but mainly with guardianship.
The Guardians and Wards Act 1890 was a law to overtake all other laws regarding the
same. It became the only non-religious universal law regarding the guardianship of a child
and applicable to all parts of India except the state of Jammu and Kashmir. This law is
particularly outlined for Muslims, Christians, Parsis and Jews as their personal laws do not
allow for full adoption as it is provided in the Hindu Adoption. It applies to all children
regardless of race, caste, creed and sex.
Under the Guardians and Wards Act 1890 it was stated that any child who had not
completed 18 years of age was to be a minor. This child would be appointed guardians by the
court or any other authority. They would decide who would take place as the said childs
guardian or by removing another as a guardian28.
3.2 LEGAL PROCEDURES UNDER THE GUARDIANSHIP AND WARDS ACT 1890
28Personal Laws; http://www.archive.india.gov.in/citizen/lawnorder.php?id=16 accessed on 1st
September 2016
24
All these procedures took place only after an application had been placed by the person who
was willing to take a child under himself and to act as his guardian. The application should
contain all the possible information that would have been required, including the information
about the guardian and any reason as such for the guardianship.
Once the court admits the application, a date for a hearing would be set. The court
will hear the evidences before making a decision. Unlike in the procedures given in the Hindu
Maintenance Act 1956 where a person once adopted has a single set of parent, here a minor
and his property could have more than one guardian.
It was required under these cases of guardianship that the court use its discretionary
power and considered the interests of the minor. His/ Her age, sex, religion, the compatibility
proportion with the guardian, the death of the parent must be taken into consideration. The
minors preference may also be taken into consideration in this guardianship Act 1890.
The process here is completely different from the Hindu kinds of Adoption wherein
the process makes the child a ward, not an adopted child.
Under this law, when children turn 21 years of age, they no longer remain wards and
assume individual identities. They do not have an automatic right of inheritance in their
parents property under whom he was under protection called ward. These requirements
remain silent on the cases of orphans, abandoned and surrendered children.
This Act however does not provide to the child the same status as a child born
biologically to the family or unlike a child adopted under the Hindu Adoption and
Maintenance Act 1956. Here the child cannot become their own, take their name or inherit
their property.
The Guardianship and Ward Act 1890 confers only a guardian-ward relationship. This
legal guardian-ward relationship exists until child completes 21 years of age. Foreigners, who
seek to adopt an Indian child, do so under this Act to assume legal guardianship of the child
after giving an assurance to the court that they would legally adopt the child as per the laws
of their country, within two years after the arrival of the child in their country29.
29 Dr. Vijay Pal Khanagwal& Dr. Pawan Mittal, Legal aspects of legitimacy in Indian Perspective:
An overview, http://medind.nic.in/jbc/t12/i2/jbct12i2p111.pdf accessed on 31st August 2016
25
To conclude by saying that under the Guardians and Wards Act 1890 it is mostly the
discretion of the court to grant the child to a mere custody rather than the adoption and
specifically the Hindus cannot be a guardians under the Guardians and Wards Act 1890 but
they can be the guardian under the Hindu Guardianship and Minority Act 1956.
3.3 ADOPTION UNDER MUSLIM LAW
Adoption is little different under Islamic law than the usual adoption practices that are
followed. The Islamic term for what is generally called adoption is kafala1. This comes
from a word that means to feed. In essence, it describes more of a foster-parent30
relationship like everything else in Islamic law the practice of adoption is highly regulated.
But mostly the concept of adoption is not followed in among muslims some muslims prefer
to adopt child in such a case adoption is given but not like in the case of Hindus. Here it will
be only the mere custody and guardianship is given by parents.
A guardian/ward role is played out rather than a parent. This relationship has specific
rules. These rules are mainly to preserve the integrity of the family line.
Adoption is certainly not prohibited. What is unlawful is to attribute ones adopted child
to oneself, as if there is a biological relationship. This is because Islam seeks to
safeguard biological lineage and not confuse lineage31.
Adoption is the transplantation of a son from the family in which he is born, into
another family by gift made by his natural parents to his adopting parents. Islam does
not recognise adoption.
The Adoption of Children Bill 1972 was not approved as the Muslim opposed it. The
Adoption of Children Bill, 1980 aiming to provide for an enabling law of adoption
applicable to all communities other than the Muslim community, was opposed by the
Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt
Parsis from the Bill.
30 Foster care is a system in which a minor has been placed into a ward, group or homes of a state
certified caregiver, referred to as a foster parent. The placement of the child is normally arranged
through the government or a social service agency. The institution, group home or foster parents is
compensated for expenses. The state via the family court and child protection agency stand in loco
parentis to the minor and making all legal decisions while the foster parent is responsible for the
day-to-day care of the minor.
26
The National Adoption Bill, tabled twice in parliament in the seventies, has yet to
enter the statute books. The history of attempt to bring in the concept of secular adoption into
our system of laws narrates a sad tale of inaction and action without conviction on the part of
the legislature.32
There are few rules in Islam surrounding the concept of Adoption (for providing
guardianship) they are as follows:
An adopted child retains his or her own biological family name and does not change
his or her name to match that of the adoptive family.
An adopted child inherits from his or her biological parents, not automatically from
the adoptive parents.
If the child is provided with property, wealth from the biological family, adoptive
parents are commanded to take care and not intermingle that property and wealth
with their own
In the concept of Islam the adopted family will serve merely as trustee.
The above illustrated points clearly state that the Islamic rules emphasize to the adoptive
family that they are not taking the place of the biological family but instead there are only the
trustees and care takers of someone elses child under the Guardianship and Wards Act 1890.
In the famous case of:
CASE LAW: Mohammed Allahabad Khan v Mohammad Ismail
CITATION: (1886) ILR 8 All 234
DECISION: The court held that there is nothing in the Mohammedan law similar to adoption
as recognized in the Hindu system. Acknowledgement of paternity under Muslim law is the
nearest approach to adoption.
The material difference between the two can be stated that in adoption, the adoptee is
the known as son of another person, while one of the essentials of acknowledgment is that
acknowledge must not be known son of another. However an adoption can take place from an
orphanage by obtaining permission from the court under Guardians and Wards Act. The
guardian/ child relationship has specific rules under Islamic law, which renders the
relationship a bit different than what is common adoption practice today.
32Nishant Mehrotra, Law governing Adoption in India, https://www.linkedin.com/pulse/laws-governing-

adoption-india-nishant-mehrotra?forceNoSplash=true; accessed on 29th August 2016
27
The above illustrated rules emphasize to the adoptive family that they are not taking
the place of the biological family but instead they are merely a trustee and caretakers of
someone elses child. Their role is very clearly defined but nevertheless very valued and
important.
In this context a recent judgement of the Supreme Court delivered on activist Shabnam
Hashmis petition requesting court to declare the right to adopt and to be adopted as a
fundamental right, is significant. While the court headed by then Chief Justice P. Sathasivam
did not accept this plea, it clarified that the Juvenile Justice Act allowed people belonging to
any religion to adopt a child. The Juvenile Justice Act would continue to allow adoption to
any person submitting to the provisions of the optional legislation, until a uniform civil code
was achieved.
3.4 ADOPTION UNDER PARSI LAWS
As pointed out earlier the act very outset, the only personal law which permits adoption under
the statue is the Hindu Adoption and Maintenance Act 1956. There are no other law
governing people belonging to other religions or communities.
The Parsis, who are governed in their personal laws by the Parsi Marriage and
Divorce Act 1936 states that there is no separate provision for the adoption of a child. The
personal laws of these communities also do not recognize adoption and here too an adoption
can take place from an orphanage by obtaining permission from the court under Guardians
and Wards Act 1890. However, there is a customary form of adoption prevalent among the
parsis known as Palak.
Under this custom, the widow of a childless Parsi can adopt a child on the fourth day
of her husbands death, simply for the purpose of performing certain annual religious
ceremonies. This child acquires no property rights33.
3.5 ADOPTION UNDER CHRISTIAN LAWS
A Christian has no adoption law. Since adoption is legal affiliation of a child, it forms the
subject matter of personal law. Christians have no adoption laws and have to approach court
under the Guardians and Wards Act 1890.
28
National commission on women has stressed on the need for a uniform adoptive law.
Christians can take a child under the said Act only under foster care. Once a child under
foster care becomes major, he is free to break away all his connections. Besides, such a child
does not have legal right of inheritance.
The general law relating to guardians and wards is contained in the Guardians and
Wards Act 1890. It clearly lays down that fathers right is primary and no other person can be
appointed unless the father is found unfit. This Act also provides that the court must take into
consideration the welfare of the child while appointing a guardian under the Act34.
CASE LAW: Philips Alfred Malvin v V.J. Gonsalves
CITATION: AIR 1999 Ker 187, I (2000) DMC 540
LEGAL ISSSUE: Whether there could be an adoption under the Christian Law and if so,
what are the rights of the child over the property of the deceased?
DECISION: Even though Christians do not have separate adoption act but still the court held
that Christian law recognises adoption and the adopted child has the same right as a
natural born child. Therefore, the petitioner was thus held to be entitled to the property of
the deceased adoptive parents. According to the court, the right to adopt is inherent in the
right to life guaranteed under Article 21.
CONCLUSION
The only statutes governing adoption in India is the Hindu Adoption and Maintenance Act
1956 and The Juvenile Justice Care and Protection of children Act 2000.
It is this Act that recognises the adopted child as his/ her own children as a natural
born but rest of the other personal laws do not possess separate Act but they can adopt child
under the Guardians and Wards Act 1890 where the adopted child is not considered as his
own child where the child is given guardian up to 21years after that it is the discretion of the
child to live with the adopted parents or to live alone. So, therefore, there is a need for a
uniform law on adoption. Thousands of abandoned, orphaned and neglected children need
families and innumerable couples wish to adopt but in the absence of satisfactory legal
provisions, the children remain homeless and people desiring to adopt cannot do so.
34 Ibid.,
29
Since the Juvenile Justice Act is a secular law so the Hindus, Christians and the
Muslims can adopt their child and there is no such restrictions and therefore, there is a great
need of Uniform Civil procedure code only through which problems regarding adoption is
solved. So the concept of Juvenile Justice Act was brought up.
CHAPTER IV
4.1 THE JUVENILE JUSTICE ACT 2000
The National mechanism of the child legislation is the Juvenile Justice care and protection of
children Act 2000 as amended in 2006. The Government the Government of India enacted the
Juvenile Justice Act in 1986. It outlines two target groups namely
i. Children in need of care and protection.

ii. Juvenile in conflict with law.
Adoption can be a most beautiful solution not only for the childless couples but also for the
bachelors, unmarried womens, and divorced women and also for the homeless children. It
enables a parent-child relationship to be established between persons not biologically related.
It is defined as a process by which people take a child not born to them and raises it as a
member of their family.
Adoption as a legal concept was available only among the members of the Hindu
Community except where the customs permits such adoption for any section of the polity.
Only Hindus are allowed to legally adopt the children and the other communities could only
act as legal guardians of the children. Article 44 of the constitution declares that The state
shall endeavour to secure for the citizens a uniform civil code throughout the territory of
India. Section 29 of the Juvenile Justice Act 2000 provides for the child welfare committee.
The committee has the sole authority to declare the child in need of care and protection who
are orphan, abandoned and surrendered free for adoption.
Child welfare committee shall determine legal status of all orphans, abandoned and
surrendered children. Functions and powers of the committee, procedure in relation to the
committee, production of child before committee, procedure for inquiry, procedure related to
orphans and abandoned children and procedure related to surrendered children shall be
governed as laid down in the Juvenile Justice Amendment Act 2006 and its rules. On
30
clearance from child welfare committee that a particular child is free for adoption there will
be termination of parental35.
The Act is known as The Reformatory Act deals with two categories of child in
need of care and protection and children in conflict with the law. This Act provides for the
establishment of various kinds of Institutions such as:
Childrens home for the reception of child in need of care and protection.
Special homes for the reception of child in conflict with law.
Observation homes which are meant for the temporary reception of child during the
pendency of any inquiry.
After care organizations which are meant for the purpose of taking care of children
after they have been discharged from childrens home to special homes.
Under the Juvenile Justice Act as it is a secular laws it provides an opportunity to adopt a
child irrespective of the religion whether the couple can be Hindu, Muslim, Christian or any
other religion.
The author likes to say why there is a need for the Juvenile Justice Act and amendment to it
this is because as per the National Crime Records Bureau data it shown that there has been an
increase of offences committed by the juveniles, especially in the age group of 16-18. This
can be proved by a simple example where which happened in the year 2012 a Delhi rape
case. The only reason for this is happening is because of the child is not given with the love,
care and affection. The author likes to point out that because of the lack of adoption in India
is that main reason that the child are not given with sentiments and family situation where
they can actually feel the real love and affection. Only way to stop this kind of crimes that are
prevailing in India can only be solved by the process of adoption. Only then the child will
grow in a situation where he can fell the sentiments, love and caring.
Basing on the record given by the NCRB it clearly says that crime rate are increasing year to
year so drastically: The number of crimes and their drastic increase are listed in the table
shown below36
35Nishant Mehrotra; Law governing Adoption in India; https://www.linkedin.com/pulse/laws-

governing-adoption-india-nishant-mehrotra?forceNoSplash=true 29th August 2016
36 Apoorva Shankar, The Juvenile Justice Bill 2015, http://www.prsindia.org/theprsblog/?p=3610

31
According to the author opinion the back-screen for these to take place is purely because of
the absence of love and affection. This can be provided to the child only through the
Adoption.
Juveniles between 16-18 years apprehended under

IPC
Crime 2005 2015
Burglary 1,160 2,117
Rape 293 1,388
Kidnapping/abduction 156 933
Robbery 165 880
Murder 328 845
Other offences 11,839 19,641
Total 13,941 25,804
The Juvenile Justice Act is a secular law wherein the parent or parents are allowed to adopt
the child irrespective of the age, gender, caste, religion, sex or any other factor. The Juvenile
Justice Act has been amended twice in 2006, 2011and 2015. More demands to amend the act
have been in the reckoning. While personal laws allow specific communities to adopt other
persons can become guardians only under an archaic Guardians and Wards Act 1890 so for
the continuation as parents of the child, couples who adopt the child as guardians was in a
pathetic situation to leave a child if the adopted child wish to go after 21 years of age to
resolve these problems. Government brought the secular laws namely Juvenile Justice Act
2000 under which any person can adopt the child and acquire the status of natural born child.
In Stephanie Joan Becker v state37 , a single 53 years old lady was permitted to adopt 10 year
old girl orphan under the guide lines of the Central Adoption Resource Authority (CARA).
Likewise, in the case of Shabnam Hashmi vUnion of India38 , the apex court that upheld the
right to adopt and to be adopted as a fundamental right, also held that every person
37 (2013) 12 SCC 786
38 (2014) 4 SCC 1
32
irrespective of the religion also held that every person irrespective of the religion he/ she
professes is entitled to adopt. And also in the very judgement in Jan Balaz v Anand
Municipality39, the twin German children born through surrogacy were granted an exit permit
on the courts directions to CARA to permit their adoption by German parents.
CHAPTER V
5.1 INTER-COUNTRY ADOPTION
The concept of inter-country adoption is relatively a new concept. Since it is a new method of
Adoption there is no legislation exist which primarily provides for the rules regarding inter-
country adoption. There is more than one way to build a family and adopting a child into your
home. By the virtue of ratification of the conventions on the Rights of the child, Government
of India has recognized the childs right to a family especially within its own family
members. The conventions on the Inter Adoption coming into force in India with the effect
from 1.10.2003; the Inter- Country Adoption is the process by which the individual has to:
Adopt a child from a country other than your own through permanent legal means
Bring that child to your country of residence to live with the adopted person
permanently.
Inter-country adoption is similar to domestic adoption. Both consist of The legal

transfer of parental rights and responsibilities from a childs birth parents or other guardian
to a new parent or parents. This is done so by which the adopted child is being brought into
the adopted person country permanently. The landmark case which has to be decided here
with respect to the concept of Inter-country adoption is the Lakshmi Kant Pandeys case40.
This case laid down few principles governing the rules for Inter- country Adoption. The case
was instituted on the basis of a letter addressed to the court by a lawyer, Lakshmikant pandey
alleging that the social organisations and voluntary agencies engaging in the work of offering
Indian children to foreign parents are indulged in malpractices.
39 AIR 2010 Guj 21
40 (1984) AIR 469 1984 SCR(2) 795 1984 SCC (2) 244
33
Supreme Court in this case expressed its opinion and framed certain rules for the
Inter-country adoption: The Honourable Court asserted that, While supporting Inter-country
adoption, it is necessary to bear in the mind the primary object of giving the child in
adoption being the welfare of the child, great care has to be exercised in permitting the child
to be given in adoption to the foreign parents. If suppose the adoptive parents in the foreign
country may not be able to provide to the child a life of moral and material security or the
child may be subjected to moral and sexual abuse or forced labour or experimentation for
medical or other researches in such situations these children are placed in his/ her own
country. It is stated that in the first place, every application from a foreigner desiring to
adopt a child must be sponsored by social or child welfare agency recognised or licensed by
the government of the country in which the foreigner is a resident. No application by a
foreigner for taking a child in adoption should be entertained directly by any social welfare
agency in India working in the area of the Inter- country adoption or by any institution or
centre or home to which children are committed by Juvenile Court41.
The Supreme Court also insisted the age within which a child should be adopted in case of
Inter-country adoption. If a child is to be given in Inter-country adoption, it would be
desirable that it is given in such adoption before it completes the age of 3 years. Such a
ruling was delivered by the Supreme Court because it felt if a child is adopted by foreign
parents before he/she attains the age of 3, he /she has more chances of assimilating to the new
environment and culture42. The statistical data of inter-country adoption and in-country
adoption according to the CARA are listed below43:
Year In-country Adoption Inter-country Adoption
5964 629
2011 (Jan'11 to March'12)
41 Mohit Aggarwal, The Paradox of Inter Country Adoption,

http://www.legalserviceindia.com/articles/pard.htm accessed on 25th September 2016
43 http://cara.nic.in/InnerContent.aspx?Id=90#Adoption Statistics accessed on

25th September 2016
34
4694 308
2012-2013 (April'12 to March'13)
3924 430
2013-2014 (April'13 to March'14)
3988 374
2014-2015 ( April'14 to March'15)
3011 666
2015-2016 (April'15 to March'16)
CHAPTER VI
6.1 CENTRAL ADOPTION RESOURCE AGENCY (CARA)
A new procedure for handling children in conflict with law has been proposed. A revamped
child welfare committee has been identified, empowered and given statutory functions.
Mandatory registration of childcare institutions has been provided. Observations, shelter and
special homes may be established by state governments.
CARA Central Adoption Research Authority has been made a statutory body vested with
functions of in-country and inter-country adoptions. Section 58 of the Act emphasis on Inter-
country adoptions, stating that all applications for adoption shall be filed before a principal
Magistrate of the concerned jurisdiction where the registered adoption agency is located44.
CARA is an autonomous body and also ratified Hague conventions of 1993 and the United
Nation Declaration of the Rights of the Child adopted by the general assembly of the united
nation in 1989 on inter country adoption. Later Juvenile Justice Act 2000 was passed for
children in need of care and protection. Inter-country adoption of Indian children is governed
44 Anil Malhotra, Juvenile Justice Law and CARA,

http://www.aimjf.org/download/Documentation_EN/JUVENILE_JUSTICE_LAW_AND_CARA_-
13.01.2016.pdf accessed on 25th September 2016.
35
by a set of guidelines. These guidelines are a follow up of various directions given by the
Supreme Court of India in L.K. Pandey v Union od India45 and other cases. In this case the
apex court held that sic ether is no statutory enactment in our country providing for adoption
of a child by foreign parents or laying down the procedure which must be followed in such a
case, resort is had to the provisions of the Guardians and Wards Act 1890 for the purpose of
facilitating such adoption. These guidelines are amended and updated from time to time
keeping in mind the welfare of such child. While CARA is engaged in clearing inter-country
adoption of Indian Children its principal aim is to promote in-country adoption. In fact,
CARA ensures that no Indian Child is given for inter-country adoption without him/ her
having been considered by Indian families residing in India. CARA also provides financial
assistance to various NGOs and Government run homes to promote quality child care to such
children and place them in domestic adoption46.
To strengthen adoption rules and facilitate adoption without any hassles, Government of India
under advice of the Supreme Court constituted a Central Agency Central Adoption
Resource Agency normally called as CARA with New Delhi as base to set up guidelines for
adoption time to time safeguarding welfare and rights of children while granting adoption or
guardianship under Hindu Adoption and Maintenance Act 1956, Guardian and Wards Act
1890 or Juvenile Justice Act 2000.
BASIC GUIDELINES FOR ADOPTION
CARA has issued separate policy guidelines for the inter-country and in-country adoptions.
The main policy adopted is placement agencies involved in adoption should strictly follow
and comply with the guidelines of CARA and register with respective state governments. No
objection certificate from CARA is made mandatory in case of all inter-country adoption
before placement agency process the application in competent judicial courts.
There is also the first preference given for the India parents rather than the foreign parents in
CARA and Foreign parents should adopt through recognized agency and the age of the child
should be below 3 years.
45 (1984) AIR 469 1984 SCR(2) 795 1984 SCC (2) 244
46 http://carings.nic.in/parents/Guidelines-for-Adoption.html , accessed on 25th September 2016.
36
6.2 UNIFORM CIVIL CODE FOR ADOPTION
Laws relating to crime and punishment are the same for all citizens in India, and so are the
laws relating to commerce, contracts and other affairs. But there are, as is evident from the
case laws and the authorities put forth above that there are no uniform laws regarding family
matters in the Indian context. It has been requested since long time for uniformity in such
laws. To treat all citizens equally one must have same laws for everybody. In case of
adoption, the conspicuously different law for Hindu and Non-Hindu creates an emotional
problem. The Non-Hindu who may adopt a child and treat him/ her as their own biological
child. Hence there has been a cry for a uniform civil code with respect to adoption.
A uniform civil code in adoption laws will not violate the fundamental right to
religion. It should be remembered that the directive principles of state policy mandate the
state to bring uniformity in laws. India being signatory to Conventions on the Right of a
child, such uniformity is necessary so that the rights to adoptive children can well be
enhanced and protected. Since adoption is a salient feature of Hinduism, the Hindu Adoption
and Maintenance Act 1956 statutorily recognize adoption. The Act brought about significant
changes to the law of adoption amongst Hindus and has improved the position of women in
this regard. It is absurd that Muslim and Christian Indians cannot legally adopt a child for
lack of uniform code on adoption. If a uniform civil code is enacted like the Hindu women,
the women following other religion will also be allowed to adopt. With the coming of a
uniform civil code the status of Indian women will definitely improve all aspects of social
life. One way to adopt conflict would be to give people the option to opt out of classification
based on religion. It should not be mandatory that there should be a set of religious personal
laws that govern a persons life. Therefore, a secular India needs a uniform civil code. A
uniform civil code in adoption laws will not violate fundamental right to religion. It should be
37
remembered that the directive principles of state policy mandate the state to bring uniformity
in laws47.
CHAPTER VII
7.1 CRITICAL ANALYSIS
Adoption has always considered a wonderful opportunity to provide the child with home and
the caring parents. It offers an excellent alternative to institutional care for the abandoned,
destitute or neglected child in an atmosphere of happiness, love and understanding which
only a family can provide.
Finally Adoption as a legal concept was available only among the members of the
Hindu community except other custom permits such adoption for any section of the polity.
Only Hindus were allowed to legally adopt the children and the other communities could only
act as legal guardians of the children.
In the authors opinion there are various drawbacks and loop holes in the Hindu Adoption and
Maintenance Act and also Guardianship in the existing laws on adoption in India. Some of
the drawbacks and loopholes here as follows:
47 Shrada Girijesh sharma; Uniform Civil code and Adoption in India;

https://www.researchgate.net/publication/228194463_Uniform_Civil_Code_and_Adoption_Laws_in_
India accessed on 30th August 2016
38
According to Section 7 of the Hindu Minority and Guardian ship Act 1956 it simply
says that on adoption the natural guardianship of the adopted son passes on from its natural
parents to the adoptive father and after him to the adoptive mother. This section in its nature
and contents has three inherent defects:
i. First, it fails to take notice of the cases of adoptive daughter

ii. Second, it also fails to consider the cases of adoption by women having no husband
iii. Third, Section 7 is confined to the natural guardianship of adopted son only
According to section 8 and proviso of section7, the explanation mentions about the
capacity of a male and a female Hindu to take in adoption. Male Hindu has the capacity to
take a son or a daughter in adoption. Obtaining the consent of the wife or if there are more
than one living wife the consent of all of them is necessary for adoption, unless they or any of
them suffered any of the enumerated infirmities rendering such consent unnecessary.
The object underlying section 7 of the Hindu Adoption and Maintenance Act is to
completely abrogate the customary Hindu law under which a male Hindu can impose the
relationship of an adoptive mother upon his wife without her consent or even despite her
objections. After the Act, if the requisite consent of the wife is obtained, the wife is regarded
as the adoptive mother because the adoption so made by a male Hindu is not only himself but
by his wife as well. Section 14 contains the deeming provisions so called, in the case of an
adoption by a male or female and this has to be read with sections 7 and 8. It is also important
to notice that all the deeming provisions relating to affiliation in section 14 of the Hindu
Adoption and Maintenance Act are only in relation to living persons and not to persons who
were dead at the time of the adoption.
Section 14(1) refers only to the living wife who should be deemed to be the adoptive
mother and it does not include a wife who was dead at the time of the adoption. This shows
that the deceased wife is not to be regarded as the adoptive mother of the boy adopted. If in
the case of a deceased wife there is no such affiliation the position is a fortiori in the case of a
deceased father. Where in the above cases it was decided the adopted child is considered as a
child of the deceased father who died before the adoption. A comprehensive law on adoption
which is the ideal solution seems so far away, so this is better than nothing. Because of the
lack of an Act so many parents who already have one adopted child and who are excellent
candidates to adopt more than one child cannot do so. HAMA does not allow Hindu parents
39
to adopt more than one child of the same sex. Most of these children then go in for the inter-
country adoption.
So if nowadays people rather opt to adopt a child under Juvenile Justice Act 2000
because under this Act the child of same sex can be adopted where it is not in the case of
Hindu adoption where more than one child of same sex cannot be adopted and the Juvenile
Justice Act also grants for the adoption of child under various religions but it not so in Hindu
Adoption because under Hindu only Hindu child could be adopted.
The author is of the view that the enactment of the Juvenile Justice Act 2000 and its
subsequent amendment in 2006 is definitely a significant effort of the legislature towards
recognition of adoption of orphans by people irrespective of their religious status. It cant be
denied that it is a secular legislation only under which any person can adopt a child of orphan,
abandoned and surrendered child irrespective of his/her religion. It is more children oriented
unlike other legislations.
Finally, by concluding that adoption is a noble cause which brings happiness to kids
who were abandoned or orphaned. This gives a chance for the human side of civilization to
shine through. It is a beneficial program where the child is treated as the natural born child
and given all the love, care and attention.
At the same time, it fills the void in the parents who yearned for kids, their laughter
and mischief echoing off the walls of a home. However, a few changes could be made to
make all the laws regarding adoption a little uniform.
Adopting one child wont change the world; but for the child, the world will change
40
BIBLIOGRAPHY
PRIMARY SOURCES
STATUES:
1. The Guardian and Wards Act 1890

2. The Hindu Adoption and Maintenance Act 1956
3. The Juvenile Justice Care and Protection of Children Act 2000
CASE LAWS:
1. Amarendra Mansingh v Sanatan Singh 60 IA 242

2. Bal Gangadhar Tilak v Shrinivas Pandit 42 IA 135, p.154
3. Jan Balaz v Anand Municipality AIR 2010 Guj 21
4. Kartar Singh v Gurdial Singh 1973 Cur LJ 529 (Current Law Journal)
5. Malti Roy Chowdhury v Sudhindranath Majumdar AIR 2007 Cal 4, (2007) 1 CALLT
323 HC
6. Mohammed Allahabad Khan v Mohammad Ismail (1886) ILR 8 All 234
7. Philips Alfred Malvin v V.J. Gonsalves AIR 1999 Ker 187, I (2000) DMC 540
8. Sawan Ram v Kalavati AIR 1967 SC 1761
9. Shabnam Hashmi vUnion of India (2014) 4 SCC 1
10. Stephanie Joan Becker v state (2013) 12 SCC 786
41
SECONDARYSOURCES
BOOKS:
1. Agnes Flavia, Family Law and Constitutional Claims, Oxford University Press, 2nd
Revised Edition, New Delhi, 2011
2. B.M. Gandhi, Family Law 1, EBC Publication, 4th edition, Haryana 2015
3. Diwan Paras, Family Law, Allahabad Law Agency, Haryana, 2013
4. Kusum, Family Law 1, Lexis Nexis Publication, 4th edition, Haryana 2015
5. Kusum, Family Law Lectures I, Lexis Nexis, Nagpur, 2011
WEBSOURCES:
1. Almas Shaikh, Adoption Laws in India, http://www.lawctopus.com/academike/legal-

framework-governing-adoption-laws-india/ accessed on 10th September 2016
2. Anil Malhotra, Juvenile Justice Law and CARA,
http://www.aimjf.org/download/Documentation_EN/JUVENILE_JUSTICE_LAW_
AND_CARA_-13.01.2016.pdf accessed on 25th September 2016.
3. Apoorva Shankar, The Juvenile Justice Bill 2015,
http://www.prsindia.org/theprsblog/?p=3610 accessed on 25th September 2016
4. Bare Act,
http://www.vakilno1.com/bareacts/hinduadoptionsact/hinduadoptio
nsact.html accessed on 3th September 2016
5. Debaditya Roy; Adoption Under Juvenile Justice Act: A clarion call to;
http://www.legalserviceindia.com/article/l327-Adoption-under-Juvenile-Justice-
Act.html accessed on 1st September 2016
6. Deepak Kumar Verma, Hindu Adoption Laws & Interpretation by High Court,
http://www.nja.nic.in/2.%20Hindu%20Adoption%20Law%20and%20Judicial
%20interpretation-%20Deepak%20KR.Verma.pdf accessed on 11th September
2016
7. Dr. Vijay Pal Khanagwal& Dr. Pawan Mittal, Legal aspects of legitimacy in Indian
Perspective: An overview, http://medind.nic.in/jbc/t12/i2/jbct12i2p111.pdf accessed
on 31st August 2016
42
8. Evolution of Marriage as a Social Institution,

http://shodhganga.inflibnet.ac.in/bitstream/10603/26528/8/08_chapter%201.pdf
9. Kathryn Patricelli, Introduction to adoption from the adoptive parent perspective,
https://www.mentalhelp.net/articles/introduction-to-adoption-from-the-adoptive-
parent-perspective/ accessed on 24th September 2016
10. Mohit Aggarwal, The Paradox of Inter Country Adoption,
http://www.legalserviceindia.com/articles/pard.htm accessed on 25th September 2016
11. Naresh ChandraSengupta, Evolution of Ancient Indian Law;
https://www.scribd.com/doc/20167904/ADOPTION-IN-ANCIENT-INDIA accessed
on 29th August 2016
12. Neraj meena, Adoption laws in India: Challenging existing laws;
http://www.manupatra.co.in/newsline/articles/Upload/E8EFE493-114B-4E5B-
A014-682EB1729301.pdf accessed on 29th August 2016
13. Nishant Mehrotra; Law governing Adoption in India;
https://www.linkedin.com/pulse/laws-governing-adoption-india-nishant-mehrotra
accessed on 29th August 2016
14. Nishant Mehrotra; Law governing Adoption in India;
https://www.linkedin.com/pulse/laws-governing-adoption-india-nishant-mehrotra?
forceNoSplash=true; accessed on 29th August 2016
15. P.M. Nair, A report on trafficking in women and children in India,
http://nhrc.nic.in/Documents/ReportonTrafficking.pdf accessed on 10th September
2016
16. Personal Laws; http://www.archive.india.gov.in/citizen/lawnorder.php?id=16
accessed on 1st September 2016
17. Rakesh Dubbudu, Demand for adoption more than four times the number of
available kids, http://www.newslaundry.com/2016/07/11/demand-for-adoption-
more-than-four-times-the-number-of-available-kids/ accessed on 25th September
2016
18. Romit Agarwal, Adoption: Hindu. Muslim, Christian and Parsi;
http://www.legalserviceindia.com/articles/hmcp_adopt.htm accessed on 1st
September 2016
43
19. Sangitha Krishnamurthi, Adoption Law in India,

http://www.thealternative.in/society/adoption-law-in-india/ accessed on 1st
September 2016
20. Shrada Girijesh sharma; Uniform Civil code and Adoption in India;
https://www.researchgate.net/publication/228194463_Uniform_Civil_Code_and_Ad
option_Laws_in_India
44

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LEGAL FRAMEWORK GOVERNING

Reg. No. BA0150050

Under the Guidance of

Ms. PRANUSHA KULKARNI

TAMIL NADU NATIONAL LAW SCHOOL

Ms. PRANUSHA KULKARNI

Adoption in India is a bonafide record of the research work done by

R.Vigneshwaran, under my supervision and guidance. It has not been submitted to

or for any other similar recognition.

Date: 28th September 2016

Signature of the Guide

I, R.Vigneshwaran, do hereby declare that the project entitled Legal Framework

Governing Adoption in India submitted to Tamil Nadu National Law School in

partial fulfilment of requirement for award of degree in Under Graduate in Law to

Tamil Nadu National Law School, Tiruchirappalli, is my original research work. It

any other title to any other candidate of any university.

Counter Signed Signature of the Candidate

2.1 Hindu law 12

3.1 The Guardian and Wards Act 1890 24

4.1 The Juvenile Justice Act 2000 30

5.1 Inter-country Adoption 33

6.1 Central Adoption Resource Agency (CARA) 35

7.1 Critical Analysis 38

In the simpler dictionary meaning adoption is a process whereby a person assumes

1 Almas Shaikh, Adoption Laws in India, http://www.lawctopus.com/academike/legal-framework-

3 P.M. Nair, A report on trafficking in women and children in India,

4 Kathryn Patricelli, Introduction to adoption from the adoptive parent perspective,

1.2 ADOPTION - A CONCEPT OF LAW

It offers an excellent alternative to institutional care of destitute, abandoned and neglected

1.3 ADOPTION UNDER VARIOUS LAWS

6 William A. Dairty, International Encyclopaedia of social science, vol. 1, p.95

8 Sangitha Krishnamurthi, Adoption Law in India, http://www.thealternative.in/society/adoption-law-

9 Shuani, Adoption in India (An overview), http://www.yourarticlelibrary.com/adoption/adoption-in-

1.4 ADOPTION UNDER ENGLISH LAW

1.5 CONCEPT OF ADOPTION IN ANCIENT INDIA

In all these texts it is mentioned that adoption is a process to incorporate a child

10Almas Shaikh, Adoption Laws in India, http://www.lawctopus.com/academike/legal-framework-

1.6 CONCEPT OF ADOPTION IN PRECENT INDIAN LAW

12Nishant Mehrotra; Law governing Adoption in India; https://www.linkedin.com/pulse/laws-

2.1 HINDU LAW

13Evolution of Marriage as a Social Institution,

2.2 ADOPTION UNDER HINDU LAW

2.3 HINDU ADOPTION AND MAINTENANCE ACT 1956

2.4 REQUIREMENTS FOR A VALID ADOPTION

a) Who are entitled to adopt a child under Hindu law?

18Romit Agarwal, Adoption: Hindu. Muslim, Christian and Parsi;

19 Kusum, op.cit., p.8

a) Who may adopt i.e., who are entitled to adopt a child?

Section 7 deals with Capacity of Male.

b) Whether it is male or female who is entitled to adopt?

CAPACITY OF MALE SECTION 7

He should possess sound mind

CAPACITY OF FEMALE SECTION 8

she is of sound mind

No person can be adopted unless:

He or she has not completed the age of fifteen years.

f) Is there any other condition for a valid adoption?

2.5 EFFECT OF THE ADOPTION

CASE NAME: Sawan Ram v Kalavati

CITATION: AIR 1967 SC 1761

CASE NAME: Kartar Singh v Gurdial Singh

CITATION: 1973 Cur LJ 529 (Current Law Journal)

Section 12 lays down certain provision for the effect of adoption:

i. RESRTICTION ON THE MARRIAGE OF ADOPTED CHILD: The section clearly