Theme: Family

Can a parent file a maintenance application against more than one child or relative?

Yes, you can. As a parent, you can file your maintenance application against all your children. All of them have a duty to maintain you. As a senior citizen (without children), you can file your maintenance application against any or all relatives who possess or will inherit your property. If there is more than one such relative, each relative is supposed to pay maintenance in proportion to the property that they will inherit from you.

Can the amount of maintenance given to a parent or senior citizen, change at a later time depending on the situation?

Yes. The amount of maintenance can be altered/increased by approaching the court, if there are changes in your requirements like increase in cost of medical treatment. However, do remember that the amount can also be decreased depending on whether you now have an additional source of income or your requirements have decreased. It can also be canceled – for example, if you have converted to another religion and are no longer a Hindu, the judge may cancel payments as you are no longer eligible to receive maintenance under Hindu law.

I do not have sons. So, can I claim maintenance from my daughter?

Yes. Both sons and daughters bear the duty to maintain parents equally. Even married daughters have a duty to maintain their parents. However, the court will order her to pay only from her own money and assets. The married daughter’s husband has no duty to support his wife’s parents.

What are the main authorities that regulate adoption in India?

The following authorities do adoption work in India:

  • Central Adoption Resource Authority – It  is the central authority in charge of monitoring and regulating adoptions in India, receiving applications for inter-country adoptions, maintaining a database of children to be adopted, etc. Each state has a subset of this authority known as the State Adoption Resource Agency which works for the promotion, facilitation, monitoring and regulation of adoption in the states. 
  • Child Welfare Committee – It takes cognizance of the children brought before it, conducts enquiry and declares them free for adoption, etc. 
  • District Child Protection Unit – It aims to identify orphan, abandoned and surrendered children in the district and get them declared legally free for adoption by Child Welfare Committee, tracking the progress of children legally free for adoption, etc. 
  • Specialized Adoption Agencies – It is responsible for the care, protection and well-being of every child in its charge, and works for their needs. 

 

The following authorities are in-charge of inter-country adoptions (adoption of children who are foreigners or foreigners adopting Indian children):

  • Authorised Foreign Adoption Agency – It registers the prospective adoptive parents interested to adopt children from India and completes their Home Study Report, provides orientations to the parents about the child’s culture, etc.
  • Indian Diplomatic Missions – It registers the adoption applications of Non-Resident Indian Prospective Adoptive Parents or Overseas Citizens of India in the Child Adoption Resource Information and Guidance System, and processes them, etc. 

Can same sex couples adopt in India?

Although LGBTQ+ persons can adopt in India, same sex couples cannot. If you are a same sex couple, you may adopt a child separately and raise him/her together, but both you and your spouse cannot be legal parents of that child in India.

How is it decided who gets to adopt a child first, if multiple people have applied for adoption?

The decision is taken on the basis of seniority of prospective adoptive parents. Seniority is calculated from the date of successful registration, including submission of documents.(( Regulation 41, Adoption Regulations, 2017.)) For example, if Mini registered on 1st May, 2019, and Sita registered on 28th May, 2019, Mini is senior to Sita in terms of eligibility to adopt a child.

What is a home study report?

A home study is a report, valid for 3 years, conducted by the Specialised Adoption Agency (SAA) closest to your residence to determine your eligibility and suitability to adopt a child, and it includes details like social and economic status, family background, description of home and atmosphere therein and health status.(( Regulation 2(11), Adoption Regulations, 2017.)) This report will be completed within 30 days of your registration, and posted on the Child Adoption Resource Information and Guidance System (CARINGS). Please see here for more information. 

What is the difference between adoption and guardianship?

Adoption is different from guardianship. A guardian is a person who cares for a child or for his property till the child becomes an adult (turns 18 years old), but it does not create lasting  legal or familial ties like adoption. For example, Aman’s parents are not alive anymore so his uncle may apply for guardianship. As Aman’s guardian, his uncle has the legal responsibility of his upbringing, property, major financial decisions etc. 

There are two main legislations on guardianship:

If you belong to any religious community except Hindu, you can refer to the Guardians and Wards Act, 1890.

Adoptive parent provide the child nothing with care

If anyone who has charge of or control over a child assaults, abandons, abuses, exposes or deliberately neglects the child, causing the child unnecessary mental or physical suffering, that person can be punished be punished with imprisonment for up to three years and/or a fine of Rupees one lakh.(( Section 75, Juvenile Justice (Care and Protection of Children) Act, 2015.))

Also, for any general adoption by a parent in India, a Specialised Adoption Agency (SAA) has to prepare a post-adoption follow-up report every six months for two years after the child has been placed with the adoptive parents.(( Regulation 13(1), Adoption Regulations, 2017.)) In case the child is having any adjustment problems with the adoptive parents, the SAA has to arrange counseling for such adoptive parents and adoptees.(( Regulation 13(5), Adoption Regulations, 2017.))

If a child is not able to adjust with the adoptive family, an application can be filed by the SAA in the Court which gave the adoption order, asking the Court to invalidate the adoption.(( Regulation 13(7), Adoption Regulations, 2017.)) If the adoption is terminated by the Court, the child can again be put up for adoption by other prospective parents.(( Regulation 13(8), Adoption Regulations, 2017.))

If the child is a Hindu and has been validly adopted by a Hindu parent under the Hindu Adoptions and Maintenance Act, the adoption cannot be cancelled by the adoptive father or mother or any other person, and the adopted child cannot give up the adopted status and return to the family of birth.(( Section 15, Hindu Adoptions and Maintenance Act, 1956.))

What is Adoption?

Adoption is(( Section 2(2), Juvenile Justice (Care and Protection of Children) Act, 2015; Section 63, Juvenile Justice (Care and Protection of Children) Act, 2015.)) 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 child(( Section 63, Juvenile Justice (Care and Protection of Children) Act, 2015)) 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 children(( Section 2(1), Hindu Adoption and Maintenance Act, 1956.)). You cannot adopt under this law if you are a Muslim, Christian, Parsi or Jew, or from Scheduled Tribes(( Section 2(2), Hindu Adoption and Maintenance Act, 1956.)).  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 religion(( Section 56 (1),  Juvenile Justice (Care and Protection of Children) Act, 2015.)) 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:

 

Children taking care of Parents

Indian law requires all persons to maintain and support their parents – biological, step-parents as well as adoptive depending on the circumstances. The Maintenance and Welfare Of Parents And Senior Citizens Act, 2007 is a special law under which a senior citizen (above 60 years) can apply to a tribunal for maintenance from their adult children or legal heirs. You can apply for maintenance if you are unable to take care of yourself. 

Who can be Adopted?

Adoption under Non-Religious Law

Under the non-religious law on adoption,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) 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 guardian(( Section 1(4), Juvenile Justice (Care and Protection of Children) Act, 2015.)) 
    • 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.(( Section 56(2), Juvenile Justice (Care and Protection of Children) Act, 2015.)) 
  • 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,(( Hindu Adoption and Maintenance Act, 1956.)) children can be adopted only if they meet the following criteria,51 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
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Punishment for Abandoning and Neglecting Senior Citizen

If you leave a senior citizen at some place with the intention of abandoning them and not taking care of them, you can be punished with jail time of up to three months and/or a fine of up to Rupees five thousand. The police can make an arrest without the permission of a court. However, this is a bailable crime. If you are able to pay the bail bond, you will be released.

Who can Adopt?

Adoption under Non-Religious Law

Under the non-religious law on adoption,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) you(( Regulation 5, Adoption Regulations, 2017.)) 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,(( Hindu Adoption and Maintenance Act, 1956.)) 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:(( Sections 7 and 8, Hindu Adoption and Maintenance Act, 1956.)) 

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).

Amount of Maintenance for Parents

There is no standard amount of money awarded as maintenance for parents. It is decided on a case-by-case basis. The amount due to you will be decided by the court taking into account a number of factors, such as:

  • Status and standard of living of the child or legal heir
  • Your needs and requirements (reasonably calculated)
  • Whether you are living separately from your child or legal heir
  • Income, wealth and value of the child or legal heir’s properties.
  • Income, wealth and value of your properties.
  • Number of persons who have to receive maintenance.

The judge will decide the duration of the maintenance to be paid, but in most cases the duration will be for your lifetime.

Who can Give a Child in Adoption?

Under the non-religious law on adoption,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) you cannot give up your child for adoption, but as a parent or a guardian you have the option to surrender your child.(( Section 35(1), Juvenile Justice (Care and Protection of Children) Act, 2015.)) 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.(( Schedule I, Adoption Regulations, 2017.)) 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,(( Hindu Adoption and Maintenance Act, 1956.)) the following persons(( Section 9, Hindu Adoption and Maintenance Act, 1956.)) 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. 

 

Maintenance under Hindu Law

Biological/Adoptive parents who are Hindu, Buddhist, Jain or Sikh and are aged or infirmed can seek maintenance from their grown children under the Hindu Adoptions and Maintenance Act if they are unable to support themselves from their own earnings or property. In addition, even when the son or daughter is no more, parents can still claim maintenance from the wealth and properties of the deceased.

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,(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) which terminates the legal relationship that the child has with their biological parents.(( Schedule I, Adoption Regulations, 2017.))  

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.(( Schedule I, Adoption Regulations, 2017.)) 

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

  • Orphans:(( Section 38(1), Juvenile Justice (Care and Protection of Children) Act, 2015)) 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.(( Section 38(1), Juvenile Justice (Care and Protection of Children) Act, 2015.)) 
  • Surrendered children – Children who are given up by the parent/guardian, and declared as surrendered children by the Child Welfare Committee.(( Section 38(1), Juvenile Justice (Care and Protection of Children) Act, 2015.)) 
  • A child of mentally retarded parents.(( Section 38(3), Juvenile Justice (Care and Protection of Children) Act, 2015.))  
  • An unwanted child of a survivor of sexual assault.(( 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.(( Juvenile Justice (Care and Protection of Children) Act, 2015.)) If you follow the Hindu adoption laws,(( Hindu Adoption and Maintenance Act, 1956.)) 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

Maintenance after death

The duty to maintain parents exists even after the death of your child or legal heir. Upon an application, the court may order that a portion of the child or legal heir’s wealth and assets be given to you, if you are old and infirm. The amount of maintenance in such cases will be calculated as per the rules of inheritance applicable after the death of your child or legal heir. The amount due to you will be decided by a court after considering a number of factors such as:

  • Full value of assets of the child or legal heir after paying off their debts including any income from their property,
  • Provisions of their will (if any),
  • Nature and closeness of the relationship with you,
  • Your needs and requirements (reasonably calculated), or
  • The number of people dependent on them for maintenance.

Effects of Adoption

The following are the effects of adoption, regardless of which law you have adopted under:(( Section 63, Juvenile Justice (Care and Protection of Children) Act, 2015; Sections 12, 13 and 15, Hindu Adoption and Maintenance Act, 1956.)) 

  • Child of Adoptive Parent: The child becomes the child of the adoptive parent(s), and the adoptive parent(s) become the parents of the child as if the child had been born to them, for all purposes.
  • Familial Connections of the Child: The child’s connections with the family of birth are broken off and replaced by the ties created by the adoption in the adoptive family. However, under the Hindu law on adoption, the adopted child still cannot marry any person whom the child was prohibited from marrying while in the family of birth.
  • Property Rights of the Child: Any property owned by the adopted child before the adoption shall continue to remain the child’s property, along with the obligations attached to the property (including the obligation to maintain relatives in the biological family.)

Additionally, under the Hindu law on adoption,(( Hindu Adoption and Maintenance Act, 1956.)) from the date on which the adoption order of a child becomes effective:(( Sections 12, 13 and 15, Hindu Adoption and Maintenance Act, 1956.)) 

  • Property Rights of the Child: The adopted child cannot claim ownership and deprive property which a person had before the child was adopted.  An adoption also cannot stop the adoptive father/mother from disposing of their property by transferring it during their lifetime or bestowing it by will.

Cancelling a Valid Adoption: A valid adoption cannot be cancelled by the adoptive parent or any other person. Once adopted, a child cannot reject the adoption and return to the family of birth.