Theme: Family

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: 

 

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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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. 

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).

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.