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Understanding and distinguishing between Hindu Adoption And Maintenance Act v/s Juvenile Justice Car

Adoption is one of those fictions of law which have been marshalled for the furtherance of individual interest. The law of adoption enables a childless person to make somebody’s else child as his own. According to the ideal laws, the adoption meant the removal of the child from natural family and transplanting it into the artificial family were the rights from natural family comes to an end and thus transferred to the adoptive ones.

Under Hindu law, Adoption is a Sacramental process than a secular act, forming the act of Hindu Adoption and Maintenance Act, 1956 were only Hindus were allowed to have adoption which was restrictive in relating to family adoption were only the known parents can give their child for adoption. The main object of adoption has been to secure the performance of one’s funeral rights and to preserve the continuance of one’s lineage.

In recent times, adoption has been the best means to restore family life to a child deprived of his or her biological family. Various international conventions on Human Rights also expressly mention the positive duty to provide protection and assistance to children. Furthermore, the Convention on Rights of Child, 1989 (CRC) is a reservoir of various valuable rights concerning children.

HAMA provides for the adoption of Hindu children by the adoptive parents belonging to Hinduism. This is not applicable to other communities like Muslims, Christians and Parsis. They had recourse to Guardians and Wards Act, 1890 (GAWA), wherein they become guardians of children. The process makes the child 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.

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 and have no right of inheritance. The aforesaid enactments (i.e. HAMA and GAWA) 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 to 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, a laudable attempt was undertaken by the legislature to include adoption norms in the Juvenile Justice (Care and Protection of Children) Act, 2000. This enactment allowed 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.

As per Supreme Court’s directions, specific guidelines have been laid down by Central Adoption Resource Authority (CARA), which is now the apex controlling body in a matter relating to adoption in India under the Ministry of Women and Child Development (MWCD) for legal adoption. Based on the judgment in Lakshmi Kant Pandey v. Union of India [1]and Section 41(3) of the JJ Act, CARA has framed a set of guidelines

Capacity Of Indian Male And Female For Adoption

Under Hindu Adoptions and Maintenance Act, 1956(HAMA) the capacity of Hindu male and Female is mentioned under Section 7 and 8 of the Act which is as follows:

Section 7 talks about the Capacity of Hindu Male to take in Adoption: A major Hindu male of sound mind can adopt, whether he is a bachelor, widower, divorcee or married person. But for a married Hindu male, it is obligatory to take the consent of his wife, but if the marriage is commenced before 1956 and the person has more than one wife then he needs to take consent of all his wives. In the case of Bholooram and Ors. vs. Ramlal and Ors[2] the question raised was whether the consent of all the wives is necessary if a person has more than one wife living at the time of adoption?

It was held that if a wife has absconded to an unknown place, it cannot be construed as her death in eyes of law unless requirements of Section 107 of Evidence Act are fulfilled. So long as a woman continues to be a wife in eyes of law, her consent is necessary for the validity of adoption under Section 7 of Act. The consent from all the wives is mandatory, consent can be either express or implied.

But if he has a wife living, he shall not adopt except the consent of his wife unless she has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. In the case of Divorce, the consent is not necessary but in the case of Judicial Separation, consent would be a valid requisite.

Section 8 talks about the Capacity of Hindu Female for adoption: The Act makes a fundamental departure from the old law empowering a Hindu female[3]. Earlier it was not allowed for a married woman during the subsistence of marriage to adopt a child by virtue of amendment in 2010 now valid women can adopt a child under certain restrictions which are applicable on her husband and with due consent from the husband.

Section 8 of the HAMA, 1956, enumerates that any female, who is a Hindu, can adopt a child if she complies with the following conditions:

  • who is of sound mind;
  • who is not a minor; and
  • who is not married or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

Capacity under Juvenile Justice (Care & Protection of Children) Act, 2015:

A couple or a single parent can adopt an orphan, abandoned and surrendered(OAS) child however, nothing in this Act shall apply to adoptions.

By virtue of Section 38 of JJ Act, 2015 and Regulation 6 and 7 of AR, 2017 Child Welfare Committee (CWC) can legally declare an OAS child free for adoption and this Act also allows Children up to the age of 18 to be adopted.

The capacity of male/female under JJ Act, 2015 can be commonly grouped under the umbrella term Prospective Adoptive Parent(s) (PAP) and is illustrated under Section 57 of JJ Act, 2015:

  1. The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him.
  2. In case of a couple, the consent of both the spouses for the adoption shall be required.
  3. A single or divorced person can also adopt, subject to fulfilment of the criteria and in accordance with the provisions of adoption regulations framed by the Authority.
  4. A single male is not eligible to adopt a girl child.
  5. No child shall be given in adoption to a couple unless they have at least two years of the stable marital relationship.
  6. The age of prospective adoptive parents, as on the date of registration, shall be counted for deciding the eligibility and the eligibility of prospective adoptive parents to apply for children of different age groups shall be as under:
    Age of the child Maximum composite age of PAPS (Couple) Maximum age of Single PAP
    Up to 4 years 90 years 45 years
    Above 4 years and below 8 years 100 years 50 years
    Above 8 years up to 18 years 110 years 55 years

    The minimum age difference between the child and either of the prospective adoptive parents shall not be less than twenty-five years.
  7. The age criteria for prospective adoptive parents shall not be applicable in case of relative adoptions and adoption by a stepparent.
  8. Couples with three or more children shall not be considered for adoption except in case of special need children as defined in Regulation 2(12) of AR, 2017, hard to place children as mentioned in Regulation 50 of AR, 2017 and in case of relative adoption and adoption by step-parent.

Process For Adoption By Indian Parents, Relatives And Step Parents

Procedure for Adoption under CARA:

Following are the key procedure which is illustrated for Adoption by Indian Parents under CARA:
  1. Parents need to register online on the CARA website;
  2. Select preferred Adoption Agency for Home Study Report and State;
  3. Upload the required Documents on User ID and Password, documents need to be uploaded within 30 days of registration, then after the Registration number would be generated,
  4. Specialised Adoption Agency(SAA) conducts Home Study Report of the PAPs and uploads it on CARA within 30 days from the date of submissions of required documents on CARA;
  5. The Home Study Report is valid for three years and shall be the basis for the adoption of a child for PAPs from anywhere in the country.
  6. Suitability of PAPs is determined if not found suitable, PAPs is informed with the reason for rejection as per regulation 59;
  7. The appeal referred shall be disposed of within a period of 15 days and the decision of the authority shall be binding;
  8. PAPs reserve one child, as per their preference from up to 3 Children with their Photographs, Child Study Report and Medical Examination Report;
  9. After viewing the Profile of child the PAPs can reserve the child or children may reserve one child within a period of 48 hours for possible adoption and the rest would be released for other PAPs who are in the waiting list;
  10. PAPs visit the adoption agency from the date of reservation and finalise;
  11. If the child is not finalised within the stipulated time, the PAPs come down in the Seniority list;
  12. On acceptance of the child by the PAPs, SAA completes the referral and adoption process;
  13. PAPs take the child in pre-adoption foster care and SAA files petition in the court;
  14. Adoption court order is issued;
  15. Post-adoption follow- up report is conducted for a period of the six-monthly basis for 2 years from the date of pre-adoption foster placement with the PAPs.

Comparison Of Hama And Cara

Basis of Comparison
Basis of Comparison HAMA CARA
Kind of Adoption: HAMA was meant to facilitate adoption between the known set of parents, probably of a known child and under-known circumstance. Thus, it is a ‘Family adoption’. Under CARA adoption is done between the unknown people for the child with the proper study were the Welfare of the child is the paramount consideration. Thus, it is ‘Institutional adoption’
Ground for Religion: It is only applicable for Hindus. It is applicable for all religions that is in Secular in nature.
Child Age to give in adoption: Children only up to the age of 15 years can be given into adoption. Children up to 18 years can be given into adoption.
Number of Children into Adoption: Under HAMA only one child can be adopted, the gender of the child to take in adoption can be defined as per the conditions in this Act. Under CARA maximum 3 children can be adopted of any gender.
Process of Registration: Registered Deed is required to finalise the adoption. Adoption is only finalised by the Order of Court.
Suitability of PAPs for adoption: HAMA does not mention whether that particular male/ female is fit for adoption or not. CARA checks the Suitability of PAPs with reference to their medical reports, financial status by conducting the Home Study Report.
Follow up of PAPs and Child: Suitability of the PAPs, sourcing of the child and the post-adoption follow-up cannot be ensured for adoption under HAMA. Welfare and Interest of the child is the suo motto which ensures follow- up of PAPs and Child for 2 years.
Inter- country adoption: Under HAMA inter- country adoption cannot be done as they fall under private and direct adoption and it is not supported by Hagues Conventions on Adoption. All inter- country adoptions shall be done only as per provisions of this act which is mentioned in Section 56(4) of Juveniles and Justice Act, 2015.
Selection of Child for adoption: Here there are no specific time details mentioned for selection of child for adoption but it only mentions the process of giving and taking of adoption needs to be done. Here the PAPs are given 48 hours to reserve that particular child from the mentioned report for Indian nationals.
But for Foreign Nationals it gives 96 hours to select a child.
Proposal to Parents for Selection of Child: Here there is no system for proposal to parents. Under CARA 3 proposals are given to parents to select a child.
Consultation with Parents: Under HAMA there is not consultation given to parents.
Under CARA a proper Foster Care Consultation is provided to parents.
Security for Adopted Child: HAMA does not indicate about the kind of security for the adopted child. CARA mentions that adoptive parents needs to make security for the adopted child for his/her future benefits in terms of Fixed Deposits, LIC, etc.
End-Notes:
  1. Lakshmi Kant Pandey v. Union of India AIR 1984 SC 469
  2. Bholooram and Ors. vs. Ramlal and Ors 989 JLJ 387 (Madhya Pradesh High Court)
  3. Brajendra Singh v. State of Madhya Pradesh, AIR 2008 SC 1056

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