How to adopt a child in India?

Copyright by Legal Ladder

ADOPTION

Generally, adoption is legally taking custody of another’s child, bringing him/her up, and taking care of that one as the child as their own child.

The number of adoptions has risen in the past few years, and it is continuously going on.

There can be a lot of reasons behind this, such as

1. Some critical health issues (i.e.heart, brain problems).

2. Love and deep sympathy towards children.

3. Intention to balance population growth on their personal level.

4. Infertility or not having the physical capability to become parents.

5. To prevent an incoming generation from a certain genetic disorder.

6. To avoid pregnancy complications.

7. To start a family being a single parent.

8. Certain concern for a girl child or a boy child.

9. In an intention to help a child.

So, here we read some reasons behind adoption, but amongst all of them, the leading reason, which we can see around us too, is to cover infertility.

Some people cannot become parents but everyone wants to start their family and want to enjoy connections/moments of the family with them.

In Hindus, it is observed as a need for everyone to run their dynasty. Besides it, every couple has some family goals and in some cases, infertility becomes an obstacle between the dreams of a couple. Adoption results as the best solution for every such kind of problem of wanting to be a parental couple.

What is adoption?

The action of legally taking another's child and bringing it up as it is yours is called adoption.

So many adoption agencies are available to help people in adopting a child.

Who can adopt a child?

Both a Hindu male and female (with capabilities) can adopt a child.

The motive of adoption can be inquired or not?

It is not necessary to inquire into the motive. It is irrespective of the fact whether consideration has passed or not (adoption is made of some pecuniary or proprietary benefit).

The general capacity to adopt 

1. Adopter should be a major (the majority here means completion of the age of 18 years).

2. Adopter should be of sound mind.

[The presence of a widowed daughter-in-law is no bar in making adoption by a sonless Hindu male or female where he or she has the capacity to make an adoption.]

Adoption by a Hindu male  

There are some conditions for a male to adopt a child.

Essentials

1. A Hindu male should be a major.

2. He should be of sound mind. (It doesn’t matter if he is a bachelor, widower, divorcee, or a married person)

3. If he is married, it is obligatory to obtain his wife’s consent (if he has more than one wife then the consent of every wife is necessary).

4. An adoption made without the consent of wife will be void ( if he is married)

Consent of wife may be express or implied such as:

1. If the wife takes part in the performance of the adoption ceremonies, her consent will be implied (unless she pleads to fraud or force).

2. But in her absence consent can not be implied.

 Where consent of wife does not reflect in following cases such as:

1. If the wife has ceased to be a Hindu.

2. If she has finally and completely renounced the world.

3. If she has been declared by the court of competent jurisdiction to be of unsound mind.

If a Hindu male adopts a female child, he must be senior to her by at least 21 years, otherwise, the adoption will be void.

The consent of the wife is only required under the Act of 1956 and to any adoption which took place before the Act of 1956, this provision would obviously have not affected.

Adoption by a Hindu female 

Under the old Hindu law, a female has no capacity to make adoption to herself, though a widow under such circumstances could adopt a son to her deceased husband. Since such adoption was by her, and not to her, she was not the adoptive mother in her own right. She was the adoptive mother being the wife of her husband to whom adoption was made.

But now section 8 of the Hindu adoption and maintenance act,1956 has totally been substituted by the personal laws (amendment) act 2010.

Now any woman can adopt a child,

By fulfilling the conditions mentioned under Section-8 of The Hindu Adoptions and Maintenance Act, 1956

Essentials

1. She should be a major.

2. She should be of sound mind. 

3. If she has a husband living, consent of her husband is necessary.

Unless

1. Her husband has ceased to be Hindu.

2. If he has completely and finally renounced the world.

3. If he has been declared by a court of competent jurisdiction to be of unsound mind.

4. A widowed woman can adopt a son or a daughter if she doesn’t have one of her own.

5. An unchaste woman (unmarried or widow) also has the capacity to adapt.

If a female adopts a male child, she must be senior to the child by at least 21 years, otherwise, the adoption will be void.

If a Hindu dies leaving behind more than one window, each widow can adopt a child in the absence of her own child.

Case Law:

Vijayalakshamma v. B.T. Shankar,

In this case, it was held that, if a widow adopts a child, she need not take the consent of a co-widow because she adopts the child in her own capacity.

Shastric law barring women to adopt is prohibited and no longer applicable.

A widowed woman can adopt a son or a daughter if she doesn’t have one of her own.

Let’s understand it with an example 

If Sanjay died, leaving behind three widows Savita, Anita, Vinita.

He died leaving behind a son from his wife Savita and a daughter from his wife Anita, and no issue (child) from his wife Vinita. Savita here can adopt a daughter, Anita can adopt a son and Vinita can adopt a son and/or a daughter. Anita and Vinita will be stepmothers of Savita’s daughter, Savita, and Vinita to Anita’s son and Savita, Anita to Vinita’s son or daughter.

Consent of co-widow is not mandatory as each widow has the right to make adoption to herself.

Rule of adoption [Section-9(4) Hindu Adoption and Maintenance Act]

The rule is that a giver can not be a taker

For example

1.)  A mother could not adopt her illegitimate child.

2.)  A guardian could not adopt his ward.

3.)  The guardian of an orphan, abandoned child, foundling, or the guardian of a child whose both parents have completely and finally renounced the world or have been declared by a court of competent jurisdiction to be of unsound mind, may himself adopt the child.

A person has the capacity to adopt does not mean that he has the right to make an adoption, there are some bars on it.

Some Bars to adoptions

Section 11 of The Hindu Adoption and Maintenance Act, 1956, talks about such conditions (bars).

Such conditions are:

Conditions to adopt a son

An adopter must not have a Hindu son, son’s son, or son’s son's son (legitimate or by adoption) if he has then he can not make an adoption.

Conditions to adopt a daughter

If a Hindu wants to adopt a daughter, he must not have a Hindu daughter, or son’s daughter (even adopted also).

The same child can not be adopted by two

1. Two here doesn't mean husband and wife but it means such as two sisters, two brothers, or two friends.

2. Or a child can not continue to be the son or daughter of both the adopted family and the natural family.

If a Hindu wants to adopt a child of the opposite sex, he/she must be older than the child by at least 21 years.

Conclusively, the adopter (male, female, or both male and female) must be major and stable by physical health, mental health, and financial health.

To adopt a child they must fulfill all the essential conditions as per laws.

The writer is pursuing a degree of BA.LL.B (Bachelors of legislative law)

From, Department Of Law, Maharshi Dayanand University (Rohtak) Haryana, INDIA.

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