Introduction

In the human society, when we fight for rights, we must not leave anything to God; it’s us who has to take responsibility and inititive. Also when we call them asset, they become a commodity or utility based component among us, but we deny that. These are the contradictory things. Why we just talk of MAN? Why not women! Why children are only important for welfare or development? Aren't they important in themselves? We must not give priority to adoption because some couples are childless; I feel it may also be the responsibility on the citizens to adopt children in other circumstances.

Adoption can be a most beautiful solution not only for childless couples and single people but also for 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 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. The religion-specific nature of adoption laws was a very retrograde step. It reinforced practices that were unjust to children and hindered the formation of a Uniform Civil Code.

Justice P.N.Bhagwati in his land mark decision in 1984 on adoption said “no child can grow his full stature, outside the framework of a family.”

Article 39 of the Constitution of India directs the government to make special provisions through legislation programme & approaches to ensure that the tender age of children is not abused & that even those living under extremely difficult circumstances are given facilities to develop in a healthy manner & in condition of freedom and dignity.

India has the second largest child population in the world and it is estimated that there are over 32, million destitute children in one country. In consonance with the provisions of the constitution and international commitments the Indian government formulated National Policy on Children, enacted Juvenile Justice Act and ratified the UN Convention on the rights of the child and the national plan of action on children to ensure that childhood is protected against exploitation and against moral and material abandonment.

There is no uniform law on adoption in our country. There are 3 Acts dealing with this subjects those are (1) Hindu Adoption & Maintenance Act, 1956 (HAMA); (2) Guardians & Wards Act, 1890 (GAWA); (3) Juvenile Justice (Care & Protection) Act 2000. Apart from these laws we have certain guidelines laid down by the Supreme Court in matter of inter Country adoption. Hindus can adopt a child under Hindu Adoption & Maintenance Act, while others can adopt a child under their guardians & wards act, where as JJ Act deals with neglected & delinquent children.

Hindu Adoption & Maintenance Act, 1956

This is a legislation under which a Hindu married male, a Hindu unmarried male, a Hindu unmarried female, a Hindu divorcee woman and a Hindu widow can adopt a child. Basically the above mentioned can adopt a child under this act.

Definition of Adoption

Adoption is a process whereby a person assumes the parenting for another who is not kin and, in so doing, permanently transfers all rights and responsibilities from the original parent or parents. Adoption is intended to effect a permanent change in status and as such requires societal recognition, either through legal or religious sanction.

Under Section 9 2(ia) guardian has been defined as a person who is appointed by the will of natural parents of a child; or by the court.

Who can adopt a Child?

Under Section 7 of the act a male Hindu who is of a sound mind; not a minor; has the capacity to take a son or daughter in adoption. If he has a wife living he shall adopt with the consent of his wife; but wife should be of sound mind and should be Hindu.

Under Section 8 of the Act a Hindu female should be of a sound mind; should not be a minor; who is not married can adopt a son or daughter. a Hindu married female can adopt a child only if her marriage is dissolved; husband is dead; is of a sound mind.

Under Section 9 of his act a Natural parent; if parents are not alive then guardians; mothers can also give child in adoption if the father is dead; is of a sound mind; and should be a Hindu.

The parents who are adopting cannot give the child in adoption.

Who can be adopted?

He/she should be Hindu; He/ she should not have already adopted; he/she should have not been married; he/she should not have completed the age of 15 yrs unless there is custom or usage applicable to the parties which permit person who have completed the age of 15 yrs being taken in adoption.

Other Conditions of Adoption

• If a son is being adopted, then the parent who are adopting must not have a Hindu son, grandson, great grandson living at the time of adoption
• If a daughter is being adopted, then the parents who are adopting must not have a Hindu daughter, grand daughter at the time of Adoption.
• If any male is adopting a female child then the difference of age between the male and female child should be of atleast 21 yrs.
• If any female is adopting a male child then the difference of age between the female and male child should be of atleast 21 yrs.
• A same child cannot be adopted simultaneously by two persons or more.

Effects of Adoption (Under Section 12 of This Act)

The adopted child will be the child of his/her adoptive father or mother for all purpose with effect from the date of adoption.

All the relations, duties & responsibilities of the child in the natural family will stand null (terminated)from the date of adoption.

All the relations; duties; responsibilities and role will come in existence in the adoptive family form the date of adoption.

No adoption which has been made through proper process be cancelled by the person who has adopted, nor by the adopted child and nor by the natural parents as laid down in section 15 of the act.

During adoption of any child no person will receive payment or any kind of reward; no person will make or give or agree to make or give to any other person any payment or reward. If any person found doing it shall be punishable with imprisonment up to 6 months or with fine or both under section 17 (2) of the act.

The Guardians & Wards Act, 1890

This act was brought in with a view of granting protection to the person & property of the minors. This act is uniformly applicable to all minors of any caste, creed or religion. All matters relating to guardianship such as rights, obligation and responsibility of the certificated guardian, the removal and replacement of the guardian and remedies of ward is regulated by the provisions of this act. This act only deals with the guardians such as guardians of marriage or guardians in litigation fall outside the purview of the Act.

Definition

“Guardian” has been defined in section 4 (2) of the Act that “a person having the care of the minor person or his property or both the person as well as property.

“Ward” has been defined under section 4 (3) of the Act “is a minor for whom or hi property or for both there is a guardian.”

“Minor” has been defined under section 4 (1) of the act “is a person who under the provision of Indian Majority Act 1875 is deemed not to have attained majority”

Whenever the court on the application of a person comes to the conclusion that would be for the welfare of the child to appoint a guardian for the minor person or property or for both there is a guardian being appointed.

According to section 17 (2) of the act the court may take into account the age, sex and religion of the minor the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes if any of the deceased parents and any existing or previous relations of the proposed guardian with the minor or his property.

Section 17 (5) of the act states that the court shall not appoint or declare any person to be a guardian against the will of the ward.

Any person who is interested in the welfare of the minor may apply provided he has cause of action. application can be made at any time. Section 8 of the act contemplates 3 set of persons who may apply for the appointment of guardian to the person and property of a minor (i) person desirous of being guardian of the minor (ii) claims to be the guardian of minor (iii) relative or friend of the minor (iv) collector of the district where minor ordinarily resides or where he has his property.

Relation Between Ward & Guardian

This relation id a very fiduciary relation (trust relationship) (u/s 20 of the Act). Must not make profit out of his office; no property would be sold or purchased between them.

Ordinarily a guardian is not entitled to any remuneration whether the guardian should get remuneration is purely on the discretion of the court. An order of the court not allowing allowances is not appealable anywhere. Court may allow some remuneration to guardian for his care and pain in the execution of his duties. Section 22(2) of the act also states that if a officer of the government is appointed or declared to be a guardian such fee shall be paid to the government out of the property of the ward as the State government by general or special order directs

Under section 24 of the Act the duties of the guardian is to take care of his (ward) health, education, support and other such matter according to the law to which the ward is subject requires.

Section 25 of the Act says if a ward leaves or is removed from the custody of a guardian, the court if is of the opinion that it will be for welfare of the ward to return to the custody of guardian, may make an order for his (ward) returns and for the purpose of enforcing the courts order the ward may arrested & delivered in the custody of the guardian the court may exercise the power conferred to magistrate of Ist class under Section 100 of the Cr.P.C.

Section 27 of the Act talks about the duties of a guardian for the property. The guardian is bound to deal with the property carefully as a layman with ordinary prudence would deal with it. He may deal with properties which are reasonable and proper for the realization protection or benefit of the property.

Limitation of Power of Guardian of Property

A guardian appointed by will or by any otherway shall not; mortgage, charge or transfer by sale, gift, exchange any part of the immovable property; lease any part of the property for a term more than 5 yrs or for any term extending more than one year beyond the date on which ward will cease to be a minor, without the previous permission of the court.

Removal of Guardian

Under section 39 of the act court has the power to remove guardian on an application of any interested person; if it finds that the guardian is an improper person to continue and his removal is in the interest of the child. There are following ground on which guardian can be removed:

• Abuse of trust
• Failure in performing duty
• Ill treatment or negligence in taking care of the ward
• Disregard of statutory provision or orders of the court
• Incapacity to perform duties of his trust.
• Conviction for an offence implying defect of character
• Residing outside the jurisdiction of the court
• Adverse interest towards performance of his duties.
• Termination of guardianship.
• Insolvency.

Juvenile Justice (Care & Protection) Act, 2000

The Juvenile Justice Act 1986 is the primary legal framework for juvenile justice in India. The act provides for a special approach towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system. The law replaced the Children Act, 1960.

The first legislation on juvenile justice in India came in 1850 with the Apprentice Act which required that children between the ages of 10-18 convicted in courts to be provided vocational training as part of their rehabilitation process. This act was transplanted by the Reformatory Schools Act, 1897, the Indian Jail Committee and later the Children Act of 1960.

In 1974, India declared its National Policy for Children, “recognizing children as a nation’s supremely important asset and that their programmes must find a prominent place in the national plan for the development of human resources” By 1986, almost all states had passed their own children’s legislation. Juvenile Justice Act of 1986 was enacted to have a uniform of Juvenile Act which can be applied throughout the country. The JJA was more humanistic and treatment-oriented. The JJA was considered a unique piece of social legislation intended to provide care, protection, treatment, development, and rehabilitation for neglected and delinquent juveniles as well as the adjudication of matters relating to the disposition of delinquent juveniles.

Relevant Provisions of the Act

Section 2 (aa) of the JJ Act amended in 2006 says that adoption mean the process through which the adopted child is permanently separated from his/ her natural parents and become the legal child of his adoptive parents with all rights, privileges and responsibility. Such children may be given in adoption by a Court in keeping with the provisions of several guidelines regarding adoption issued by the State Govt./Central Adoption Resource Authority and notified by the Central Govt. But the Court should be satisfied with the investigation having carried out which are required for giving such children in adoption.

The Children’s Homes and institutions run by the State Govt. or voluntary organizations for children in need of care and protection who are orphan, abandoned or surrendered, should ensure that these children are declared free for adoption by the Committee (Child Welfare Committee) and such cases shall be referred to the adoption agency of that district for their placement in adoption.

Child Welfare Committee

Sec. 29 of the Juvenile Justice Act, 2000 talks about Child Welfare Committee. The Committee has the sole authority to declare the child in need of care and protection who are orphan, abandoned or surrendered free for adoption.

CWC 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 orphan 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 clearance from CWC that a particular child is free for adoption, there will be termination of parental right.

Criteria for the Child to be Adopted

Sec.41 (5) of Juvenile Justice (Care & Protection of Children) Act, 2000provides that a child shall be offered for adoption on fulfillment of the following requirements:

• In case of abandoned child, if two members of the Committee declare the child legally free for placement.
• In case of surrendered child, if the period two months for reconsideration by the parents is lapsed.
• In case of a child who can understand and express his consent, if his/her consent is obtained in this regard.

To Whom Child May Be Given in Adoption?

1. Sec. 41 (6) Juvenile Justice (Care & Protection of Children) Act, 2000 that the court is empowered by Sec.41 of the Act to allow a child to be given in adoption to the following persons:
2. A person irrespective of his/her marital status,
   The parents to adopt a child of the same sex irrespective of the number of existing biological sons or daughters.
3. The childless couples.

Note: It is necessary to understand which court is specifically meant by the said Act to deal with the adoption matters of orphan, neglected and surrendered children. Since the Juvenile Justice Amendment Act 2006 does not define the expression “court”, the Model Rules framed by the Central Govt. relating to adoption comes into consideration.

According to Rule 33 (5) of the Central Rules under the said Act, the “Court” means a civil court, which has jurisdiction in matters of adoption and guardianship and may include the court of District Judge, Family Court and City Civil Court.

Procedure to Adopt Child

Firstly the parents who are adopting should register themselves with the special agency or adoption coordinating agency.

The home study (environment, culture, ability of the couple to be parents) of the adopting couple and pre adoptive counseling of them will be done by the social worker.

After the social worker has completed his job of verification for the compatibility of the child who will be adopted by the couple, the couple has to submit documents related to finance and heath to the agency.

Then a child is shown to the parents. The agency takes care to match a child with the description if given by the adoptive parents.

Then the agency files a petition in the court for obtaining necessary orders under Hindu Adoption and Maintenance Act or any other relevant act.

CARA (Central Adoption Resource Authority): It’s an autonomous body under the Ministry of Women and Child Development Government of India. It’s a Society under the Societies Registration Act, 1860. It was designated as Central Authority by the Ministry of Social Justice & Empowerment on 17.7.2003 for the implementation of the Hague Convention on Protection of Children & Cooperation in respect of Inter-country Adoption (1993). 

Process: Prospective adoptive parent(s) should register themselves with the local Recognised Indian Placement Agency / Licensed Adoption Placement Agency or Adoption Coordinating Agency or with the State Adoption Cell. Then a home study report of the prospective adoptive parents will be prepared by the social worker of the concerned Agency; along with it pre-adoptive counseling sessions will be undertaken by the social worker during the preparation of the home study report. After a Home Study has been accepted and approved, a child will be shown to the parent(s). The agency will take care to match a child meeting the description, if any, desired by the parent(s). Once a successful matching has been done, the agency will file a petition in the Court/JJB for obtaining the necessary orders under the relevant Act. The above process will normally be completed in 6-8 weeks. The child can be legally placed with the parent(s) under HAMA/GAWA/JJ-Act 2000. 

Note:  Central Adoption Resource Agency (CARA) has launched a web-based information management system which will link all adoption agencies across the country to make the process of adopting children more transparent. The website has been launched by The Minister for Women and Child Development Krishna Tirath. Prospective parents can access a list of adoptive children, their health status, their photographs and even the condition in which they were given up for adoption.