Indian legal system involves various customs along with statutes and legislations and other sources to form law. The Hindu personal laws originated from the Vedas, Smritis, and Shruti while the source of Muslim personal law is from the holy Quran and Shariat. All religions somewhere make the contention that rules of law are derived from the word of God or from words of uniquely qualified sages who possess superhuman wisdom or from the practice of those who have enjoyed the guidance of equivalent quality. Every personal law that is made or codified is done with an object to deliver social justice, equality among classes, and uniformity. This system of complex personal law is an attempt to make personal faith and belief simple and acceptable. It also stands in consonance with the constitutional provision that the state has no religion but respects all religious beliefs.
Personal laws apply even to adoption and maintenance among the different communities even when a secular law for such purpose exists in the sovereign, socialist, secular, and democratic, republic of India. On the other hand, the notion of the Uniform Civil Code (UCC) is an initiative to alter the discrepancies of the personal law system and make an attempt to see the personal matters through one single lens. The truth is that personal laws are what we confront in our personal lives from birth to death, vis a vis., laws of marriage, maintenance, adoption, custody, guardianship of children, and succession. Religion is the first affinity given at birth and it is carried throughout at one’s will through the laws that we recognize as personal to him/her. In this article, we will discuss and highlight the need for a uniform civil code concerning the law of custody and adoption under the personal law system. Both the term adoption and custody at some level mean the same but also contradict each other. Custody is a legal term referring to guardianship used in the care of another individual to define the legal and practical relationship between a parent or guardian and the child. Whereas adoption is a legal procedure under which an individual assumes the parenting of another, typically a child, from the biological or legal parent or parents of that individual, together with the permanent transition of all rights and obligations from the biological parent or parents, along with filiation.
Adoption under Muslim Law
Although Islam does not recognize the adoption, the Supreme Court in a landmark judgment in Shabnam Hashmi vs. The union of India extended the rights of adoption to Muslims as well. The apex court declared that the right to adopt a child by a person as per the provisions of the Juvenile Justice Act would prevail over all personal laws and religious codes in the country. The 3-judge bench comprising of Chief Justice P. Sathasivam and Justices Ranjan Gogoi and Shiv Kirti Singh, however, maintained that personal laws would continue to govern any person who chooses to submit himself until such time that the vision of a uniform civil code is achieved.
In this case, the petitioner, Ms. Shabnam Hashmi moved the apex court after she was told that she had only guardianship rights over a young girl she had brought home from an adoption home. Being a Muslim, she was subject to the Muslim Shariat Law which did not recognize an adopted child to be on par with a biological child. In her plea, Ms. Hashmi sought the right to adopt and the right to be adopted to be recognized as Fundamental Rights. The bench then held that prospective parents, irrespective of religious background, have the right to adopt children after the prescribed procedure.
The Juvenile Justice Act, 2000 defines adoption under Section 2(aa). It confers upon the adoptive parents and the child all rights, privileges, and responsibilities that are attached to a normal parent-child relationship.
‘Personal beliefs and faiths, though must be honored, cannot dictate the operation of the provisions of an enabling statute,’ stated the top court.
Adoption under Hindu Law
The Hindu Adoption and Maintenance Act 1956, abrogates the old law, but only to the extent to which provision is made in the Act. Under this act, only Hindus may adopt subject to their fulfillment of certain criteria. Adoption may not be valid, if it is against the public policy or if it has been made in lieu of some consideration. The law of adoption under Hindu is broadly studied under the following heads-
- Who may take in adoption?
- Who may give in adoption?
- Who may be taken in adoption?
1. Who May Take in Adoption?
No person can make adoption unless he or she is a major and is of a sound mind. The word ‘major’ means completion of 18 years age, however, in case a guardian has been appointed for the minor, the age of such guardian shall be 21 years. On the other hand, ‘unsoundness of mind’ relates to a general condition of mind and no adjudication of insanity by a court is necessary. In general, legal parlance condition of insanity, epilepsy, idiocy, and lunacy will come under the umbrella term of ‘unsoundness of mind’.
According to Section 7 of Hindu Adoption and Maintenance Act 1956, a male Hindu of sound mind and is not a minor has the capacity to take a son or a daughter in adoption, However, in case he is married it is mandatory to have a consent from his wife. Any adoption made without the consent of the wife becomes void ab inito.
In Sarabjeet Kabir vs. Gurumal Kaur, the court held that if adoption is taken by the husband without the consent of the wife, then such adoption will be illegal. However, the consent of the wife of a male Hindu is not necessary for the following three conditions: –
- The wife has completely and finally renounced the world, or
- The wife has ceased to be Hindu, or
- The wife has been declared by a Court of competent jurisdiction to be an unsound mind.
According to Section 8 of Hindu Adoption and Maintenance Act, 1956, any female Hindu who is of sound mind, who is not minor and who is not married or if married, whose marriage has been dissolved or whose husband is dead or her husband has renounced the world finally and conclusively or her husband has become a convert or her husband has been declared to be of unsound mind by a court of competent jurisdiction has the capacity to take a son or daughter in adoption. A woman who is of sound mind and is not a minor can take a child in adoption. The woman has no right to adopt, during the subsistence of the marriage, if the husband not suffering from any of the disabilities mentioned in Section 8 of the Act. The unmarried and widow woman has also the right to take in adoption any child.
A child once adopted is long considered to be a part of his/her natural or biological family. The age difference between the prospective adoptive parents and a child of the opposite sex should be 21 years, but in the case of same-sex adoption, there is no such limit.
Couples with three or more children shall not be considered for adoption except in case of special needs children as defined under sub-regulation (21) of regulation 2 in Adoption Regulations 2017, hard to place children as mentioned in regulation 50 and in case of relative adoption and adoption by step-parent.
2. Who May Give in Adoption?
Unlike the old Hindu law, the current act gives the power to give a child in adoption to the father, mother, and guardian of the child. A father can only give the child up for adoption when he has the full consent of the mother and the said consent was given without any force, coercion, or fraud. However, the consent of the mother of the child may be dispensed off with in the following 3 cases: –
- If she has finally and completely renounced the world.
- If she has ceased to be a Hindu.
- If she has been judicially declared to be of unsound mind.
Even if the marriage has been dissolved and the custody rights primarily fall with the father, he is still bound to take the consent of the mother of the child.
When the act was enacted in 1956 the mother did not have the right to give the child in adoption but this right has been provided to her after the amendment made in 2005. In the case of an illegitimate child, the mother has the complete power to give the child for adoption and no question of the consent of the putative father arises. At the same time the mother of a legitimate has no authority to put the child up for adoption during the lifetime of her husband but after the death of her husband does have the power to do so even if the father before his death expressed categorically that the child should not be given up for adoption.
The act gives the power to the guardians of the child to decide in matters of adoption only when:
- If both the parents are dead
- If parents have completely and finally renounced the world
- Parents have been judicially declared to be unsound mind
- If parents have abandoned the child
- If the parentage of the child is not known
The term guardian includes both de jure as well as de facto guardian. A de facto is a guardian who is guardian by practice and is a well-accepted concept in Hindu jurisprudence and a de jure guardian is a state-appointed guardian. The protection home where the child is living can also be considered the guardian of the child. In all cases the guardian must take prior permission of the court before taking any decision regarding the adoption of the child, this prior permission is not necessary in the case the father or the mother gives their child for adoption.
3. Who May Be Taken in Adoption?
It is necessary that the child that is being adopted must be a Hindu, whether he is related to the adopter by blood or marriage or is a total stranger is immaterial. A child that has been taken into adoption by one person cannot be again put up for adoption to another person even if the latter is the natural parent.
The act also provides greatly for orphans and abandoned children, as has been mentioned before the child can be given up for adoption by the father as well as the mother and in certain cases, even the guardian of the child as the welfare of the child takes paramount importance. A foundling can also be adopted, a foundling is a child who has been found by someone and whose parents are not known. Present provisions of the law have also made it possible for the daughter’s son or sister’s son to be taken into adoption which was not possible under the old Hindu law.
The Act lays down that adoption is only valid when the child in question is not more than 15 years of age i.e. adoption of a child is valid till the age of 14 years and 364 days, although if a custom to the contrary can be pleaded and proved in the court of law then this provision can be overlooked, e.g. in Mumbai and Punjab the adoption of a child above the age of 15 is also valid. The adoption of a married child is valid today and the child born from the adoptee will be the child of the adoptive family and not the natural family.
Adoption of a daughter and an illegitimate child has also been permitted according to the act of 1956 and was not possible before. This act, however, bars the adoption of two sons or two daughters, a person may adopt one son and one daughter.
Inter-country adoption refers to the adoption of a child from other countries. People engage in international adoption for various reasons, some include wanting to adopt infants or children of a very young age or even because they want children of the same heritage. Many people adopt because of the fears that mothers in their own country might refuse to give up the baby after birth. Municipal Laws of all countries put a paramount amount of considerations about the welfare of children including our own Constitution which has several provisions in the Fundamental Rights as well as directives in state policy for the welfare of children. It is considered to be the first and foremost duty of the states to help promote and maintain the well-being of children in society.
The main purpose of adoption is to provide a homely environment to children who are neglected, unwanted, uncared, or illegitimate. The problem in India is its widespread poverty and multi-dimensional social problems because of which children are not properly taken care of, physically and mentally. Many children are often thrown into the field of beggars, laborers, or even prostitutes to meet their daily needs. Due to scanty resources in the country, the local adoption system is unable to take care of such children. In such a situation inter-country adoption becomes a better choice for many parents. Although there is no statutory enactment in India providing for the adoption of a child by a foreign parent there are administrative guidelines which lay down the procedure, as said by Dr. DC Manooja, “It is necessary to bear in mind that the primary object of giving the child in adoption is the welfare of the child. Great care has to be exercised in permitting inter-country adoption lest the child may be neglected or abandoned or subjected to moral of sexual abuse or forced labor or experimentation 367 for medical or other research in the foreign country. The child should not be placed in a worse situation than in his own country.”
A group of experts who were formed by the United Nations met at Geneva in December 1978. This group adopted a “Draft Declaration on social and legal principles related to the protection and welfare of children with special reference of foster placement and adoption, nationally and internationally.” Many provisions and relevant principles for the welfare of children were incorporated into this draft. Due to the increasing concern for child welfare and safety at the international level, there was a declaration of the Rights of the child adopted by the general assembly of the United Nations on 20th November 1959. This declaration in the preamble stated that “the child because of his physical and mental immaturity needs special safeguards and care including appropriate legal protection, before as well as after birth” and also “mankind owes to the child the best it has to give.”
When a child is to give away in adoption or if a child is abandoned and it is considered necessary in the interest of the child to give him/her in adoption, every effort must be made first to find the adoptive parents 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. Nonetheless, if it is not possible to find suitable adoptive parents for the child within the country, only then it may become necessary to give the child in adoption to foreign parents rather than allowing the child to grow up in an orphanage or an institution where he/she will not have any family life and no love or 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.
Hague Convention on Inter-Country Adoption
The Hague Convention Act of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption protects children and their families against the risks of illegal, irregular, or premature adoptions internationally. The Convention operates through a system of National Central Authorities and it reinforces the UN Convention on the Rights of Child (Article 21). It seeks to ensure that intercountry adoption is made in the best interest of the child being adopted and that his/her fundamental rights are not being violated in any way. It also aims to prevent the abduction, sale of, and trafficking of the children. India became a part of this convention in the year 2003. According to the guidelines of the Convention for intercountry adoption, a NOC is required. The No Objection Certificate (NOC) is sent by the Central Authorities of the sending country after the receipt of Article 5 and Article 17 from the receiving country.
Article 5 of the Hague Convention states that adoption shall take place only if the competent authorities of the receiving state have determined that the prospective adoptive parents are eligible to adopt, if they have been counseled as necessary and if the child/children have or will get authorized to enter and reside permanently in the receiving state. Article 17 of the Convention states that any decision in the State of Origin about whether a child should be entrusted to prospective adoptive parents is only made if the Central Authority has confirmed that prospective adoptive parents agree; the Central Authorities of the receiving state has approved such decision; the Central Authorities of both states have agreed upon the adoption and; it has been ensured that all conditions of Article 5 are met.
Procedure for Inter-Country Adoption
The procedure for intercountry adoption of OAS children starts with counseling and preparation of Home Study Report (HSR) of Prospective Adoptive Parents (PAPs) by the social worker of Authorized Foreign Adoption Agency (AFAA) for Hague Signatory Countries and Indian Mission for others. This is followed by registration for PAPs in Child Adoption Resource Information & Guidance System (CARINGS) by AFAA or the Indian Missions. After registration, the required documents are uploaded by AFAA/Indian Mission. This is usually followed by scrutiny from CARA, verification by District Child Protection Unit (DCPU), and State Adoption Resource Agency (SARA). After this comes pre-approval by CARA according to Article 16. The next step is filling out applications and obtaining court order by the PAPs. A NOC is required at this point by CARA, only after which a Prospective adoptive parent can go for pre-adoption foster care. Once that is done, a court order is passed and the documents like conformity certificate, passport, visa, and exit visa for the child are prepared. The last step in the procedure is the arrival of the child in the receiving state and getting the child citizenship for that state.
Post Adoption Procedure
A post-adoption follow-up is done until 2 years to ensure the safety and welfare of the child. It is done on a quarterly basis in the first year followed by a biannual basis in the second year by the AFAA and the report is uploaded in CARINGS as per the schedule XII of AR 2017. As per the Hague convention if there is any adjustment problem or disruption or dissolution the child is entitled to receive care, support, protection, and rehabilitation in the receiving country (Reg 19(2) to (5) of AR 17). The AFAA or CA or the government department may organize an annual get together to be facilitated by the Indian Diplomatic Missions to ensure all guidelines are being met. The main idea behind post-adoption follow up is to meet the adoptive family; obtain information on how things are proceeding in relation to the child’s health, on the child’s reactions and behaviors, on how parents and the child are adjusting to their new life together and on how each individual is going through this change in life. The follow up also helps to give parents the counseling they need on how to cope with smaller and greater challenges of such a situation and to refer adoptive parents to more specialized help if necessary.
The Central Adoption Resource Authority is a statutory body of the Ministry of Women and Child Development, Government of India. It is the main body for the adoption of children and is given the duty to monitor and regulate in-country and intercountry adoptions. CARA is designated as the central authority for intercountry adoptions in India, in accordance with the Hague Convention on inter-country Adoption, 1993 ratified by the Government of India in 2003. CARA mainly deals with the adoption of orphan, abandoned, and surrendered children through its associated /recognized adoption agencies. Some of the guidelines given by CARA for PAPs include:
- Only adopt from Specialized Adoption Agencies as recognized by the state governments.
- Read all guidelines on the website carefully to understand the due procedure.
- Follow all the necessary steps to complete registration.
- Upload all documents required as per instructions.
- For payment related queries look at Schedule-13 of the Guidelines Governing Adoption of Children (2015).
Overall, CARA ensures smooth functioning of the adoption process from time to time, issues Adoption Guidelines laying down procedures and processes to be followed by different stakeholders of the adoption program.
In the landmark case of Laxmi Kant Pandey vs. Union of India, the Supreme Court noted that the absence of legal regulation of inter-country adoptions in India could cause a lot of harm to Indian children who may be exposed to the abuses of profiteering or trafficking. In order to protect the welfare of children, the Court, in consultation with several social and child welfare institutions gave directives and guidelines in processing adoptions to foreign parents under the Guardian and Wards Act, 1890. The guidelines of the Act include:
- that the agency giving a child up for adoption should be licensed in their own country,
- the child should have stayed at the said agency for at least a month,
- that no adoption application from a foreigner should be entertained directly by any adoption agency in India,
- that agencies working on inter-country adoptions and licensed by the Government of India must meet certain criteria and undertake specific responsibilities to ensure the safety and well-being of adopted children, and
- that all inter-country adoption proceedings must be approved by the local courts.
These guidelines by the Supreme Court became an effective tool for any child’s rights activists. Further, this judgment showed how the procedural innovation of public interest litigation in India has eased rules of standing towards making the court system more accessible to disadvantaged sections of society.
The supreme court in the case of Alturi Brahmanand vs. Anne Sai Bapuji held that: – “Customs play a significant role in the society, communities and our country. Customs have stood the test of time and are reasonable and they are explicitly saved under Hindu personal laws. Under the Hindu Adoption and Maintenance Act, 1956 the age of adoption is below 15yrs but exceptions can be made when the custom recognizes the adoption of a child over the age of 15yrs. The reason behind putting a bar on age was to make sure that a child gets attached to the adoptive family and it can only happen at a tender age.
In the case, of N.S. Patni vs. Basantabai, adoption of a 17-year-old child was held to be void as the custom that was brought before the court was vague and did not give enough ground to be considered to be a custom.
The case of Dev vs. Slyan laid down the provision that the adoption of lunatic or idiot child is valid.
The principle of that welfare of the child takes paramount was greatly propounded by the supreme court in the case of Shaleen Kabra vs. Shiwani Kabra.
(This article has been written and submitted by Mr. Arsh Singh during his course of internship at B&B Associates LLP. Mr. Arsh Singh is a 3rd Year (6th Semester) law-student at Army Institute Of Law, Mohali.