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.
Article 44 of the Constitution declares that:The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.
Over the years several attempts were made to formulate a general secular law on adoption. The attempts of Parliament in this direction did not bear fruit, all these went in vain on account of a number of reasons. The history of all such efforts does not bring credit to the secular credentials of the Indian polity.
The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it. The Adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption applicable to all communities other than the Muslim community, was opposed by the Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt Parsis from the bill. The National Adoption Bill, tabled twice in Parliament in the seventies, has yet to enter the statute books. The history of attempt to bring in the concept of secular adoption into our system of laws narrates a sad tale of inaction and action without conviction on the part of the legislature.
Adoption Legislations in India & enactment of J.J. Act:
The existing legislations for adoption or taking a child in custody in India are following:
The Hindu Adoptions and Maintenance Act:The Hindu Adoptions and Maintenance Act (HAMA), 1956, provides for adoption of Hindu children by the adoptive parents belonging to Hinduism. This is not applicable to other communities like Muslims, Christians and Parsis. They have to recourse to Guardians and Wards Act, 1890, wherein they become guardians of children. But the child does not have the status as it would have had, had it been born to its adoptive parents. One of features of this Act is that no Hindu person can adopt a son or daughter, if they already have a child of that sex. Often the intentions behind the law are good, but the methods adopted fall short. The HAMA provides that there should be an age difference of 21 years between the adoptive parents and the adopted child whenever they are of opposite sex. This is intended to prevent sexual abuse.
The Guardians and Wards Act:Personal laws of Muslims, Christians, Parsis and Jews do not recognise complete adoption. As non-Hindus do not have an enabling law to adopt a child legally, the people belonging to these religions who are desirous of adopting a child can only take the child in 'guardianship' under the provisions of The Guardians and Wards Act, 1890. The statute does not deal with adoption as such but mainly with guardianship. The process makes the child a ward, not an adopted child. Under this law, when children turn 21 years of age, they no longer remain wards and assume individual identities. They do not have an automatic right of inheritance. Adoptive parents have to leave whatever they wish to bequeath to their children through a will, which can be contested by any `blood' relative.
The aforesaid enactments remain silent about the orphan, abandoned and surrendered children. There was no codified legislation dealing with the adoption of the children of these categories. As a result, several misconceptions or irregularities appeared in respect of the custody, guardianship or adoption of these types of children, which were prejudicial to the interest of the children.
Considering all the aspects mentioned above laudable attempt were undertaken by the legislature by the stipulations, which have been made in Chapter IV of the Juvenile Justice (Care and Protection of Children) Act, 2000. This enactment shows that the legislature may be found to have accepted the concept of secular adoption whereby without any reference to the community or religious persuasions of the parents or the child concerned, a right appears to have been granted to all citizens to adopt and all children to be adopted.
It is pertinent to mention here that there arises confusion as to the interpretation as well as concept of adoption as because the expression Adoption has not been defined at all in the enactments like HAMA or GAWA. Moreover, the legal status of the adopted child has not declared to be equal to that of a biological legitimate child. Though at the initial stage the Juvenile Justice (Care and Protection of Children) Act, 2000 did not contain these factors, these are introduced in Juvenile Justice (Care and Protection of Children) Amendment Act, 2006. The concept of adoption has been well defined in Sec.2 (aa) of the said Act, which is as follows:
Adoption means the process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all rights, privileges and responsibilities that are attached to the relationship.
The Act introduced an expression child in need of care and protection and it has been defined in Sec. 2 (d) of the Act. This definition covers what is meant by orphan, abandoned and surrendered children.
Rehabilitation & Social Reintegration for orphan, abandoned or surrendered children:The chapter IV of the Act deals with rehabilitation and social re-integration of children. The primary aim of rehabilitation and social reintegration is to help children in restoring their dignity and self-worth and mainstream them through rehabilitation within the family where possible, or otherwise, through alternative care programmes and long term institutional care shall be of last resort.
Sec. 40 of the J.J.Act provides that the rehabilitation and social reintegration of a child shall begin during the stay of the child in children's home or special home, but as the family is the best option to provide care and protection for children, adoption is the first alternative for rehabilitation and social reintegration of orphan, abandoned or surrendered children.
Legislation/Guidelines/directives for adoption of orphan, abandoned or surrendered children:The following legislation, guidelines or directives are to be complied with in respect of adoption of orphan, abandoned or surrendered children.
1. Guidelines issued by Central Adoption Resource Authority time to time based on the judgment of the Supreme Court on inter-country adoption in Laxmi Kant Pandey v. Union of India & others [W.P. (Crl.) No. 1171/1982] and subsequent judgments.
2. Hague Convention on Inter-country adoption ratified by India in 2003.
3. Juvenile Justice (Care & Protection of Children) Act, 2000 and Central Model Rules promulgated under this Act.
Relevant provisions for Adoption under J.J. Act, 2000 & Rules:Sec.41 of J.J. Act, 2000 read with Rule 33(1) of Central Rules expresses the following aspects of adoption:
The primary aim of adoption is to provide a child who can't be cared for by his biological parents with a permanent substitute family. The family of a child has the primary responsibility to provide him care and protection. Orphan, abandoned or surrendered children can be adopted for their rehabilitation through such mechanism as may be prescribed. 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.
For placement of the orphan, abandoned or surrendered children for adoption in accordance with the said guidelines, the State Govt. shall recognize in each district one or more institutions or voluntary organizations as specialized adoption agencies.
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.
The guidelines issued by the CARA and notified by the Central Govt. U/s 41(3) of the Act, shall apply for all matters relating to adoption.
Now, it is necessary to understand what is Child Welfare Committee. As per Sec.2 (f) of the Juvenile Justice Act, 2000 the expression Committee means a Child Welfare Committee constituted U/s 29 of the Act. Now it is necessary to ascertain the meaning of Child Welfare Committee.
Child Welfare Committee:Sec. 29 of the Juvenile Justice Act, 2000 provides for the 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 orphan, 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:
1. In case of abandoned child, if two members of the Committee declare the child legally free for placement.
2. In case of surrendered child, if the period two months for reconsideration by the parents is lapsed.
3. 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?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:
I. A person irrespective of his/her marital status,
II. The parents to adopt a child of the same sex irrespective of the number of existing biological sons or daughters.
III. The childless couples.
Which Court shall entertain the adoption matters?Prior to the amendment of the J.J. Act, 2000 the Juvenile Justice Board was placed instead of the Court for allowing the child to be given in adoption. However, the legislature has consciously amended the expression Board and replaced it with the word Court in the J.J. (Amendment) Act, 2006. So in case of adoption under the Juvenile Justice Act, the petitions should be filed U/s 41 of the Act before the Court.
Now it is necessary to understand which court is specifically meant by the said Act to deal with the adoption matters of orphan, abandoned and surrendered children. Since the J.J. Act does not define the expression court, the Model Rules framed by the Central Govt. relating to adoption should be taken to consideration.
According to Rule 33 (5) of the Central Rules under the said Act, the Court implies 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.
But the provision of the said Rules empowering the Family court has been subjected to several criticisms by judiciary. In the case of Manuel Theodore D'Souza [II (200) DMC 292] the Bombay High Court also observed that the right to adopt being a fundamental right must be capable of enforcement through the civil court as it falls within the ambit of Sec. 9 of Civil Procedure Code. It was also opined that the District Court or the High Court has the jurisdiction to deal with the question relating to adoption as this court normally deal with the disputes regarding custody, guardianship etc. of children. It was also held that such applications can be filed before the District Courts exercising powers under the Guardians & Wards Act and such applications for adoption of the child by a guardian must be reckoned as a miscellaneous application in the petition in guardianship.
Similar conclusion has been drawn by the Hon'ble High Court of Kerala in the recent case of Andrew Mendez & others v. State of Kerala (2008). It minutely interpreted the expression Court in J.J. Act as well as the jurisdiction of the Family Court as mentioned in the Central Rules under J.J. Act and the Family Courts Act. As per Sec.7 (1) (g) of the Family Courts Act, the Family Court has the powers/jurisdiction to deal with the question of guardianship.
So the question arises whether claim for adoption can be brought under any sub-clauses (a) to (g) of Sec.7 (1) of the Family Courts Act so that the Family court must be the court for the purpose of Sec.41 (6). Similar type of question arose in the case of Vinod Krishnaan v. Missionaries of Charity [1997 (2) KLT 863] where the Division Bench of Kerala High Court held that the Family Court can't be clothed by the stipulations in Sec. 7(1) to deal with a claim for adoption U/s 9(4) of Hindu Adoption & Maintenance Act. It is only the District court having the jurisdiction to entertain such application. Following this observation the Kerala High Court in Andrew Mendez's case opined that Sec 7(1) (g) is not sufficient to clothe the Family Court with the jurisdiction to consider an application for adoption by reckoning the same as incidental to guardianship and custody.
Another important point was raised in this case, i.e., Sec. 7(2) (b) of Family Courts Act declare that the Family court shall also have and exercise such other jurisdiction as may be conferred on it by any other enactment. Though J.J. Act is an enactment, it doesn't certainly states that Family Court shall be the court for the purpose of Sec. 41(6). On the contrary, the Central Rules promulgated U/s 68 of the J.J. Act confers such jurisdiction on Family Court, but it does not fall within the ambit of enactment as explained by the High Court in the aforesaid case. Consequently it was concluded by the Kerala High Court that the Family Court does not have jurisdiction to entertain an application for adoption by a guardian U/s 41 (6) of J.J. Act and it can't be held to be the court U/s 41(6). It is only the District Court, which can have jurisdiction to entertain such application U/s 41(6) of Juvenile Justice Act, 200 read with Rule 33(5) of the Central Rules.
Procedure for adoption:
Procedure in case of orphaned and abandoned children:The Specialized Adoption Agencies shall produce all orphaned and abandoned children who are to be declared legally free for adoption before the Committee within 24 hours of receiving such children, excluding the time taken for journey. A copy of the report should be filed with the police station in whose jurisdiction the child was found abandoned.
A Child becomes eligible for adoption when the Committee declares the child legally free for adoption after completion of its inquiry. Such inquiry should be conducted by the Probation Officer or Child Welfare Officer, who shall produce report to the Committee containing the findings within one month.
The Specialized adoption agency shall declare stating that there has been no claimant for the child even after making notification in at least one leading national newspaper and one regional language newspaper for children below two years of age and for children above two years, an additional television or radio announcement and notification to the missing persons squad or bureau shall be made.
Time stipulation: In case of abandoned child below two years, such a declaration shall be done by CWC within a period of sixty days from the time the child is found. For an abandoned child above two years of age, such a declaration shall be done within the period of four months.
A child must be produced before the Committee at the time of declaring him/her legally free for adoption.
Subsequently, the child shall be placed in a specialized adoption agency or recognized and certified children's home or in a pediatric unit of a Govt. hospital followed by production of the child before the Committee within 24 hours.
No child above seven years of age who can understand and express his opinion shall be declared free for adoption without his/her consent.
Procedure in case of surrendered children:
A surrendered child is one who has been declared as such after due process of inquiry by the Committee and in order to be declared legally free for adoption, a surrendered child shall be any of the following:
1. Born as a consequence of non-consensual relationship,
2. Born of an unwed mother or out of wedlock,
3. Whose one of the biological parents is dead and the living parent is incapacitated to take care,
4. A child whose parents or guardians are compelled to relinquish him/her due to physical, emotional and social factors beyond their control.
The Committee shall give effort for counseling of the parents, explaining the consequences of adoption and exploring the possibilities of parents retaining the child and if the parents are unwilling to retain, then such children shall be kept initially in foster care or arranged for their sponsorship.
If the surrender is inevitable, a deed of surrender shall be executed on a non-judicial stamp in presence of the Committee.
Time stipulation: In case of surrendered child, two months reconsideration time shall be given to the biological parent or parents after surrender before declaring the child legally free for adoption.
The enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its subsequent amendment in 2006 is definitely a significant effort of the legislature towards recognition of adoption of orphan, abandoned and surrendered children by people irrespective of their religious status. It can't be denied that it is a secular legislation only under which any person can adopt a child of orphan, abandoned and surrendered child irrespective of his/her religion. It is more children oriented unlike other legislations.
But it may be mentioned at the same time that some more factors need to be considered specifically by the legislature. As for example, this Act stipulates adoption by any person irrespective of his/her marital status, but it does not specify whether the consent of the other spouse is required to be obtained by the adopting spouse in case adoption by a married couple. This might create misconceptions among the Hindus as in Hindu Laws (HAMA) taking consent of the wife by her husband is an essential criteria for adoption. Secondly, the expression Court has not been specifically defined for the purpose of adoption under this Act as a result of unwarranted mistakes/misconception arises frequently in filing the application for adoption by the adoptive parents. Thirdly, the Act is silent about the criteria for age difference between the adoptee and adoptive parents in case they are of opposite sex.
This is an essential factor for adoption, which should be considered seriously for the purpose of preventing child abuse and trafficking. All these facts are obviously applicable to all religions and therefore, it is necessary to specify them for the interest of the children. We should never forget the thrust of the National Policy for the Welfare of Children (1974) that The Nation's children are a supremely important asset. Their nurture and solicitude are our responsibility.
1. The Hindu Adoptions and Maintenance Act (HAMA), 1956
2. The Guardians and Wards Act, 1890
3. Juvenile Justice (Care and Protection of Children) Act, 2000
4. Juvenile Justice (Care and Protection of Children) Amendment Act, 2006
5. Central Model Rules under Juvenile Justice Act
6. Guidelines issued by Central Adoption Resource Authority
(i) Manuel Theodore D'Souza & Anr. [II (2000) DMC 292]—Bombay High Court (Justice Rebello)
(ii) Andrew Mendez & others v. State of Kerala (Crl. MC. No. 2271 of 2007---judgment by Kerala High Court pronounced on 19.02.2008)
(iii) Vinod Krishnaan v. Missionaries of Charity [1997 (2) KLT 863]
** Debaditya Roy - Enrolled advocate in Bar Council of West Bengal w.e.f 15.5.2006 (Enrollment No. - F220/06) and practised as an advocate in Jalpaiguri Dist. & Sessions Court (W.B.) upto 21.09.2008. Presently working as Legal Asstt. in Central Adoption Resource Authority under M/O Women & Child Development, Govt. of India since 25.09.2008.
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