Historical Background
The English Law started identifying adoption during the latter part of the 19th century. The purpose of the initial law was to prevent the biological parents from making a claim for their children, after giving them up for adoption. The Act was modified in 1958, and it is quite similar to the Hindu Law of Adoption, as it lays down that the adopted child becomes like a natural child for all purposes, severing all its ties with the natural family.
Adoption in India
In India, the custom and practice of adoption goes way back to the ancient times, but since the concept of adoption comes under personal laws, there has not been a scope to incorporate a uniform law in India. Adoption is not allowed in the personal laws of Christians, Muslims, Jews and Parsi, leaving them with the option to opt for guardianship of the child through the Guardianship and Wards Act, 1890. Only the Hindus, Jains Buddhists and Sikhs can formally adopt under the Hindu Adoption and Maintenance Act of 1956.
ADOPTION UNDER HINDU LAW
Under the old Hindu law, only a male could be adopted, not a female child. Such restrictions have changed over time, and under the modern Hindu law, every Hindu who has the capacity can adopt as long as they comply with the rules mentioned under Hindu Adoption and Maintenance Act, 1956. Hindu law is the only law in India which says that an adopted child is equivalent to a natural born child in all aspects.
Hindu Adoption and Maintenance Act, 1956
The post-independence Act deals with topics such as capacity to adopt, capacity to give child for adoption, gender bias, effects of adoption etc. Under this Act, any male of sound mind can adopt, with the consent of wife if he is married. Similarly, a female adult Hindu of sound mind can adopt if she is unmarried, divorced, widowed or husband suffers from some disabilities.
Section 9 of the Act says that only the father, mother or the guardian can take decisions regarding giving up of a child for adoption. Once the child has been adopted, all ties with the natural family are severed, and all the rights and obligations of a natural born child fall on him.
In the case of Sawan Ram v. Kalavati,[1] the question as to whether in the case of adoption by a widow, the adopted child would be thought to be the child of the deceased husband also or not. The Supreme Court replied in affirmative, according to Section 5(1) of the Act.
In the case of Malti Roy Choudhury,[2] Malti was adopted by her deceased mother, and being the sole heiress, she applied for estates and properties left behind by her mother. But the Court rejected her appeal on the ground that under the Act, only the father can adopt, not the mother.
This brings about a need for taking cognizance of such gender bias and it is about time that equal rights are given to both men and women, in matters of adoption.
Guardians and Wards Act, 1890
This Act superseded all other laws regarding adoption, and is the only non-religious universal law regarding the guardianship of a child, particularly for Muslims, Parsi, Jews and Christians. Any child who is a minor (below 18 years) would be appointed a guardian, and he can have more than one guardian.
ADOPTION UNDER MUSLIM LAW
Adoption under Islamic law differs from the usual adoption practices, and is usually given the term kafala. Adoption is not prohibited, but what is unlawful is to give the adopted child the rights as if he was a biological child, and this is because Islam safeguards biological lineage. So, a child is not allowed to change his surname, adopted child only gets inheritance from the biological parents and not the adoptative family, etc. The Islam rule emphasises that the adoptive family cannot take place of the biological family.
ADOPTION UNDER CHRISTIAN AND PARSI LAW
These respective communities don’t recognise adoption without the permission of the Court under the Guardianship and Wards Act. Christians under this Act can only take a child under foster care, and once the child becomes major, he can break away all his connections. Foster children also have no legal right of inheritance, and after the demise of the parents, the estate is divided among the legal heirs and the foster child has no share in it. The Act also says that the welfare of the child has to be taken into consideration while appointing the guardian.
In India, Christians can also adopt under Section 41 of the juvenile Justice Act 2005, read with the Guidelines and Rules issued by the State Governments.
INTER-COUNTRY ADOPTION
Inter-country adoption is the process by which a person can adopt a child from a country other than their own through permanent legal means and bring that child to the country of residence to live there permanently. It is similar to domestic adoption as both consist of the legal transfer of parental rights and responsibilities from a child’s birth parents or the legal guardian to a new parent or guardian.
“Lakshmi Kant Pandey’s case is the most important in the area of inter-country adoption. In 1982, a petition was filed under Article 32 of the Constitution by advocate Lakshmi Kant Pandey alleging malpractices and trafficking of children by social organizations and voluntary agencies that offer Indian children for adoption overseas. The petition was filed on the basis of a report in the foreign magazine called “The Mail”. The petitioner accordingly sought relief restraining Indian based private agencies “from carrying out further activity of routing children for adoption abroad” and directing the Government of India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian children by foreign parents. By an order- dated 6.2.1984 the Supreme Court laid down detailed principles and norms to be followed for the adoption of children by the people overseas. Many examples and references were cited while ‘discussing the issue, including the statutory provisions and the international standards. While discussing the issue the court said: “When the parents of a child want to give it away in adoption or the child is abandoned and it is considered necessary in the interest of the child to give it in adoption, every effort must be made first to find adoptive parents for it within the country because such adoption would steer clear of any problems of assimilation of the child in the family of the adoptive parents which might arise on account of cultural, racial or linguistic differences in case of adoption of the child by foreign parents. If it is not possible to find suitable adoptive parents for the child within the country, it may become necessary to give the child in adoption to foreign parents rather than allow the child to grow up in an orphanage or an institution where it will have no family life and no love and affection of parents and quite often, in the socio-economic conditions prevailing in the country, it might have to lead the life of a destitute, half-clad, half-hungry and suffering from malnutrition and illness”[1]
CONCLUSION
There is an incredible improvement in the adoption laws for Hindu, but in case of Muslims, just because of lack of uniform civil code on adoption, they cannot legally adopt a child. Only by enacting uniform civil code, other religions in India will be allowed to adopt a child legally and it will further help to improve the health of a childless parents. The adopted child will get proper care and protection. Undoubtedly, this is a complex process but if such thing is implemented, every orphaned child will have a proper life. The laws present serve justice to the people who opt for adoption, but an improvement in those laws would be beneficial.
