Theme: Family

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.

Temporary maintenance for Senior Citizens

You can make an application to the court to order your children or relatives to pay you temporary maintenance (on a monthly basis). The court has to decide whether you can get temporary maintenance within 90 days of informing your children or relatives of your application. In special circumstances, they can delay this for some more time (i.e. 30 days).

This is not the final maintenance you can expect to get. The court may decide not to give you maintenance at all, or may decide to increase or decrease the amount of maintenance in the final order.

Procedure for Adopting a Child from a Foreign Country by Indian Citizens (Non-Religious Law)

Follow the steps given below to adopt a child from a foreign country as an Indian citizen.(( Regulation 22, Adoption Regulations, 2017.)) 

Step 1: Necessary formalities for adoption of a child from a foreign country will be completed in that country, as per their law. 

Step 2: The relevant authority, depending on the laws of the country, shall issue approval of adoption, only on receiving the required documents (please ask the authority for more details on the same), and the following reports:

Step 3: A foreign child adopted by Indian citizens and having a foreign passport, will need an Indian visa to come to India. For obtaining this visa, you can apply for it to the Indian Mission in that country. 

Step 4: The immigration clearance for the child adopted shall be obtained from the Central Government in the Foreigners’ Division, Ministry of Home Affairs, through the Indian Diplomatic Mission to that country.

Claiming Maintenance from Tribunal for Senior Citizens

You can file an application in a Maintenance Tribunal under the Maintenance And Welfare Of Parents And Senior Citizens Act, 2007. You can file with the Tribunal in the area where:

  • You live currently, or
  • Have lived in the past, or
  • Where your children or relatives live.

Once you file an application with the Tribunal, you cannot file an application for maintenance under Section 125 of the Code of Criminal Procedure, 1973 (which also gives you the same right).

Process after filing an application

After you have filed an application (the format will vary from state to state), the court will first notify your children and tell them that you have filed such an application. Then, the court can decide to refer the case to a Conciliation Officer, who will try to get the parties to agree to a friendly settlement. If the court does not refer the case, it will listen to both the parties.

The court will conduct an inquiry to figure out how much maintenance you need to be paid. An inquiry is not a full-fledged legal proceeding. Even though the law does not allow for representation by lawyers in these courts, there are high court judgments which have held that this right of lawyers cannot be restricted. This court is slightly informal in nature but it has the powers of a civil court and can order attendance of witnesses, take evidence on oath, etc.

If the court finds that your children or relatives are neglecting to take care of you, it can pass an order directing them to pay a monthly maintenance. The court can also order that interest (between 5% and 8%) be paid on the maintenance amount from the date of the application. If your children or parents are not paying the maintenance even after the court order, you can go to any similar court (maintenance tribunal) and ask for help in enforcing the order.

Procedure for Adoption by Overseas Citizen of India (OCI) or a Foreigner Living in India (Non-Religious Law)

Follow the steps given below to adopt a child if you are an Overseas Citizen of India (OCI) or a foreigner who is a habitual resident of India:(( Regulation 20, Adoption Regulations, 2017.)) 

 

Step 1: You should determine if you can adopt. You may adopt a child through this means only if you are an OCI or a foreign citizen who is a habitual resident of India (i.e. you live in India regularly). 

 

Step 2: You should register online on the website of Central Adoption Resource Authority (CARA) here. It will redirect you to Child Adoption Resource Information and Guidance System (CARINGS) where you will have to fill out your application.

 

Step 3: Along with your application, you should submit the required documents, which are:

  • Your photograph
  • PAN Card
  • Your proof of birth (in case of a married couple, the spouse’s proof of birth too)
  • Proof of residence (Aadhar card/ voter card/ passport/current electricity bill/telephone bill) 
  • Proof of income of last year (salary slip/income certificate issued by the government/income tax return) 
  • Certificate from a medical practitioner certifying that you do not suffer from any chronic, contagious or fatal disease and they are fit to adopt (in case of a married couple, the spouse’s Medical Certificate too) 
  • Marriage certificate/Divorce Decree/ Declaration from the Court or affidavit pertaining to divorce under personal law/Death certificate of spouse, if applicable.

 

Step 4: A home study will be conducted by the Specialised Adoption Agency (SAA), and depending on this, your application to adopt may be accepted  or rejected. The result will be uploaded on the CARINGS website.

 

Step 5:  If your application is accepted, on the basis of your seniority, three children will be referred to you by the SAA through the CARINGS. You may reserve one child for possible adoption within 48 hours, and a meeting will be fixed for matching you to the child and assessing suitability. This process will be completed within twenty days, and if you do not accept the child, your name will be moved to the bottom of the seniority list. 

 

Step 6: The SAA will follow-up on the adoption, and create a follow-up report every six months for two years. In case of any issues, counselling will be provided, and if there is an issue after adopting the child, the child  may be taken back and declared as legally free for adoption again for other prospective adoptive parents.

Procedure for Adoption by Resident Indians (Non-Religious Law)

As a resident Indian, you may opt for in-country adoption i.e., adoption within India. Your application for adoption will go through various stages, as mentioned below:(( Regulations 9, 10, 11, 12 and 13, Adoption Regulations, 2017.))

 

Step 1: You may apply for adopting a child by registering on the website of Central Adoption Resource Authority (CARA), here. It will redirect you to Child Adoption Resource Information and Guidance System (CARINGS) where you can fill your application details such as  your personal details, employment details, etc. 

 

Step 2: After registration, you will be required to submit relevant documents as part of your application. Please see here to understand which documents you will have to submit. After you fill out the application, you will be given an acknowledgement slip.

 

Step 3: Once you have filled the application with the relevant details and documents, you can track the status of your application with the registration number provided to you on the acknowledgement slip.

 

Step 4: A home study will be conducted by CARA or Specialized Adoption Agency (SAA), to determine whether you are eligible to adopt a child.

 

Step 5: Your application may be accepted or rejected. In case your application is rejected, the reasons will be posted on CARINGS, and you may appeal against that decision to the Children’s Court. Please see here for the procedure for appeal. 

 

Step 6: If your application is accepted, on the basis of your seniority, three children will be referred to you by the SAA through the CARINGS. You can choose one child for possible adoption within 48 hours, and a meeting will be fixed to assess suitability. This process will be completed within twenty days, and if you do not accept the child you have chosen, your name will be moved to the bottom of the seniority list. 

 

Step 7: Within ten days of your selection of a child, you will have to take the child in pre-adoption foster care, which makes you the child’s foster parents. This happens while the adoption approval order is pending from the Court. You should sign this undertaking before taking the child in. 

 

Step 8: The SAA (or other relevant authority) will file an application with the relevant Court to obtain an adoption order. If the SAA is not available in your town, the relevant authority will do this. The Court proceedings will be held in-camera, and your application will be disposed of within two months from when you filed the adoption application. Thereafter, the SAA will obtain the birth certificate of the child within three working days with your name. 

 

Step 9: The SAA which conducted the home study will prepare the post-adoption follow-up report every six months for two years after the adoption. In case of any issues, counselling will be provided, and if there is an issue after adopting the child, the child  may be taken back and declared as legally free for adoption again for other prospective adoptive parents.

 

For more information on the procedure, please see here.