What is Adoption?

Adoption is1 the process through which a prospective adoptive parent(s) lawfully assumes the responsibility of a child, including all the rights, privileges and responsibilities that have already been given to the child. After the legal formalities of adoption are done, the child is permanently separated from their biological parents and is assumed to be the child2 of the adoptive parents.

In India, the laws on adoption are based on the religion of the parents and the child. You can choose which law applies to you from the options given below.

If you are a Hindu, Buddhist, Jain and Sikh

If you are a Hindu, Buddhist, Jain or Sikh (referred to collectively as Hindu) then you have the option of adopting under the Hindu adoption law known as the Hindu Adoptions and Maintenance Act, 1956 (HAMA). It provides for adoption of Hindu children3. You cannot adopt under this law if you are a Muslim, Christian, Parsi or Jew, or from Scheduled Tribes4.  If you want to adopt under the Hindu law, read more here.

All other religions

If you do not want to or cannot adopt under a religious law, then you have the option of adopting under the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), which is a general adoption law under which any person of any religion5 can adopt, including Hindus, Scheduled Tribes, etc. Read more to understand how the process of adoption works under this law.

See the table given below if you want to understand which law you should adopt under: 

Hindu Adoption and Maintenance Act, 1956 (HAMA)

(Hindu Law)

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

(Non-Religious Law)

Adoptive Parents can only be Hindu, Buddhist, Jain or Sikh. You cannot adopt under this law if you are a Muslim, Christian, Parsi or Jew or from Scheduled Tribes. Adoptive Parents can be of any religion, caste or tribe.
Only Hindu children can be adopted Any child of any religion can be adopted
Children up to 15 years can be adopted Children up to 18 years can be adopted
Procedure to adopt is not given in detail. Usually a deed is executed to adopt the child. The procedure for adoption is different for different categories depending on who you are:

 

  1. Section 2(2), Juvenile Justice (Care and Protection of Children) Act, 2015; Section 63, Juvenile Justice (Care and Protection of Children) Act, 2015.[]
  2. Section 63, Juvenile Justice (Care and Protection of Children) Act, 2015[]
  3. Section 2(1), Hindu Adoption and Maintenance Act, 1956.[]
  4. Section 2(2), Hindu Adoption and Maintenance Act, 1956.[]
  5. Section 56 (1),  Juvenile Justice (Care and Protection of Children) Act, 2015.[]

Who can be Adopted?

Adoption under Non-Religious Law

Under the non-religious law on adoption,1 the following children can be adopted: 

  • If the children given below are declared legally free for adoption by the Child Welfare Committee:
    • Any orphan who is a child without biological parents, adoptive parents or a legal guardian2 
    • Abandoned child who is a child  deserted by their biological parents
    • Surrendered child who is a child who has been given up by the parents to the adoption authorities
  • Child of a relative.3 
  • Child of a spouse who is surrendered by the biological parent, to be adopted by the step-parent. 

Adoption under Hindu Law

Under the Hindu law on adoption,4 children can be adopted only if they meet the following criteria,5 5 with some exceptions based on customs and usage: 

  • They are not married
  • They are below 15 years of age
  • They are Hindu
  • They are not already adopted
  1. Juvenile Justice (Care and Protection of Children) Act, 2015.[]
  2. Section 1(4), Juvenile Justice (Care and Protection of Children) Act, 2015.[]
  3. Section 56(2), Juvenile Justice (Care and Protection of Children) Act, 2015.[]
  4. Hindu Adoption and Maintenance Act, 1956.[]
  5. []

Who can Adopt?

Adoption under Non-Religious Law

Under the non-religious law on adoption,1 you2 must meet the following conditions to be considered as a prospective adoptive parent:

Health 

  • You must be physically fit i.e. you have no life threatening medical condition
  • You must be financially sound, mentally and emotionally stable, and highly motivated to adopt a child for providing a good upbringing.

Marital Status

  • Single Adoptive Parent: It does not matter if you are married or if you already have children i.e. a single/divorced/married person with a child can adopt a child. If you want to adopt a girl child, you must be a woman, as a single female can adopt both male and female children. However, as a single father, you cannot adopt a girl child. 
  • Married Adoptive Parent: In case of a married couple, both spouses must consent to the adoption. In case of a married couple, a married couple must have had at least two years of stable marital relationship.

Existing Children

Couples with three or more children shall not be considered for adoption except in case of children with special needs, children who are hard to place (who are not getting any referrals from a long time), and relative adoption and adoption by step-parent.

Age

The minimum age difference between the child and either of the prospective adoptive parents must be at least 25 years.

  • The combined age of prospective adoptive parents shall be counted for deciding their eligibility to apply for adoption of children from different age groups, except in cases of relative adoption and adoption by step-parent. See table below to understand whether you are eligible to adopt a child from different age groups. 
Age of the child Maximum combined age of the adoptive parents (couple) Maximum age of single adoptive parent
Upto 4 years 90 years 45 years
Above 4 and upto 8 years 100 years 50 years
Above 8 and upto 18 years 110 years 55 years

Adoption under the Hindu Law

Under the Hindu law on adoption,3 you must meet the following conditions to be considered as a prospective adoptive parent.

As a male or female Hindu, you can adopt a male or female Hindu child. A male Hindu adopting a female child must be at least 21 years older to her. Similarly, a female Hindu adopting a male child must be at least 21 years older to him For adopting under the HAMA, you should meet the following criteria:4 

Age

  • You must be a major person (above the age of 18) and of sound mind.

Marital Status

  • Married Adoptive Parent: If married, you should have the consent of your living wife/wives, or husband, unless your spouse is of unsound mind or has renounced the world or is not a Hindu anymore. In case of one wife, she will be considered as an adoptive mother, and in case of multiple wives, the senior-most wife will be considered as the adoptive mother while the others will be step-mothers. 
  • Single Adoptive Parent: If unmarried or widowed, you may adopt a child, and any man/woman you marry subsequently will be considered the step-father/step-mother. 

Existing Children

  • If you are adopting a girl, you must not have a living Hindu daughter or granddaughter (biologically or by adoption), and if you are adopting a boy, you must not have a living Hindu son, grandson or great-grandson (biologically or by adoption).
  1. Juvenile Justice (Care and Protection of Children) Act, 2015.[]
  2. Regulation 5, Adoption Regulations, 2017.[]
  3. Hindu Adoption and Maintenance Act, 1956.[]
  4. Sections 7 and 8, Hindu Adoption and Maintenance Act, 1956.[]

Who can Give a Child in Adoption?

Under the non-religious law on adoption,1 you cannot give up your child for adoption, but as a parent or a guardian you have the option to surrender your child.2 Surrendering means you give up your child for physical, emotional or social factors beyond your control. This would end your legal relationship with the child and you will not have to bear the responsibilities and privileges that are borne out of that relation once the Child Welfare Committee (CWC) acknowledges that you have surrendered the child.3 Thereafter, the CWC will decide what to do with the surrendered child, and may declare him/her as legally free for adoption. 

 

Under the Hindu law on adoption,4 the following persons5 may give up a child in adoption:

  • The biological mother or father of the child, as long as the person wishing to give a child for adoption has the consent of the other biological parent. For example, if you, as the biological mother of Rama wants to give her up for adoption, you must have Rama’s biological father’s consent. This does not apply if the other parent is of unsound mind or has renounced the world or is no longer a Hindu.
  • A guardian caring for a child may give him/her up for adoption under certain conditions, with the Court’s permission. 

 

  1. Juvenile Justice (Care and Protection of Children) Act, 2015.[]
  2. Section 35(1), Juvenile Justice (Care and Protection of Children) Act, 2015.[]
  3. Schedule I, Adoption Regulations, 2017.[]
  4. Hindu Adoption and Maintenance Act, 1956.[]
  5. Section 9, Hindu Adoption and Maintenance Act, 1956.[]

Children Legally Free for Adoption

Declaring a child legally free for adoption allows such children to be put up for adoption under the non-religious law,1 which terminates the legal relationship that the child has with their biological parents.2  

The Child Welfare Committee (CWC) takes the decision to declare a child free for adoption, after it conducts inquiries, which includes:

  • A report by the probation officer/social worker,
  • Consent of the child (if they are old enough),
  • The required declaration submitted by the District Child Protection Unit and the Child Care Institution or Specialized Adoption Agency, etc.2 

The following categories of children may be declared as legally free for adoption:

  • Orphans:3 Children without parents (biological or adoptive) or legal guardian, or whose legal guardian is not capable or willing to take care of the child.
  • Abandoned children: Children deserted by the parents (biological or adoptive) or guardians, and who are declared as abandoned children by the Child Welfare Committee.4 
  • Surrendered children – Children who are given up by the parent/guardian, and declared as surrendered children by the Child Welfare Committee.4 
  • A child of mentally retarded parents.5  
  • An unwanted child of a survivor of sexual assault.5  

 

  1. Juvenile Justice (Care and Protection of Children) Act, 2015.[]
  2. Schedule I, Adoption Regulations, 2017.[][]
  3. Section 38(1), Juvenile Justice (Care and Protection of Children) Act, 2015[]
  4. Section 38(1), Juvenile Justice (Care and Protection of Children) Act, 2015.[][]
  5. Section 38(3), Juvenile Justice (Care and Protection of Children) Act, 2015.[][]

Types of Adoption

The types of adoption given below are only applicable to you if you decide to follow the non-religious law on adoption.1 If you follow the Hindu adoption laws,2 there are no specific types of adoptions.

These are the following categories of adoption procedures:

  • Adoption by resident Indians (residing in India)
  • Adoption of a child from a foreign country by Indian citizens 
  • Adoption by Overseas Citizen of India (OCI) or a foreigner living in India
  • Adoption by OCI or Non-Resident Indian (NRI) or a foreigner living abroad 
  • Adoption by step-parent 
  • Adoption by relative
    • In-country adoption i.e. adoption within India
    • Inter-country adoption
  1. Juvenile Justice (Care and Protection of Children) Act, 2015.[]
  2. Hindu Adoption and Maintenance Act, 1956.[]