In India, the adoption process is governed by three distinct legal systems: the Guardians and Wards Act of 1890, Hindu Law, and Muslim Law.
Adoption laws, a legal process binding a child to a family, is governed by various personal laws in India. The Guardian and Wards Act of 1890 mandates court appearances for groups such as Muslims, Christians, and Parsis. Under this act, only one child may be placed in foster care, and once a minor reaches 18 years, they can sever all legal ties, including any claims to inheritance. This article explores the adoption rules in India under different personal laws.
Adoption of Children Under Hindu Laws In India
In Hindu Laws In India, adoption laws is considered more of a sacramental than a secular act. The purpose of adoption is twofold: to ensure the continuation of one’s lineage and to guarantee the execution of funeral rights.
According to Hindu Shastras, an adopted child must resemble a natural child to receive love and protection. Modern adoption laws aim to provide childless couples with a sense of community and relief, offering an unwanted child a suitable home and existence.
The 1956 Hindu Adoption and Maintenance Act sets out specific requirements for a legal adoption. The prospective adoptive parent must willingly accept the adoption laws, the individual placing the child for adoption must be competent to do so, and the adoptive child must be eligible for lawful adoption.
The Requirements for a Legal Adoption Under the 1956 Hindu Adoption and Maintenance Act
The Act’s provisions state that the following adoptions are the only valid ones:
- The prospective adoptive parent must be able to accept the adoption of a child.
- The individual placing the child for adoption is competent to do so.
- The adoptive kid must be able to be adopted lawfully.
- To complete the adoption, an actual giving and taking ceremony called “Data Homan” must be performed (oblation to the fire).
- It should be noted that these considerations might not always be crucial to the legality of an adoption.
| Although a ceremony called “Data Homan” is prevalent in Hindu customs, its significance may vary in practice. |
Who Can Adopt?
For a Hindu male to adopt, he must be of sound mind, a major, and financially capable of providing for the adopted child. If he has a loving wife, her approval is required unless certain conditions, such as abandonment or mental incompetence, are met.
Similarly, a Hindu woman must be of sound mind, a major, and financially capable to adopt. If married, the adoption must proceed with her consent, following specific conditions. The critical point is that if a Hindu woman in a traditional marriage wants to adopt a child, the adoption formalities must be carried out with her consent.
Who May Provide a Child for Adoption?
The following people may give a child up for adoption following the Hindu Adoption and Maintenance Act of 1956:
- The father, with the mother’s approval (if she is alive)
- A husband without consent of the wife, if he is the only parent or his wife has publicly and utterly abandoned the world, abandoned Hinduism, or has been deemed insane by the appropriate court.
- A wife without the consent of her husband if her marriage has been dissolved, the husband is deceased, has entirely and publicly forsaken the world, has abandoned Hinduism, or is mentally ill by the appropriate court.
- The legal guardian, with the consent of the appropriate court, in cases where the child’s mother and father are both deceased, have entirely given up on life, have abandoned the child, or are deemed mentally ill by an appropriate court.
Note – The court must be convinced that the adoption laws is appropriate for the child’s welfare and that the adoptive parents will meet all of the child’s needs and wants in light of the child’s age and level of awareness.
Who Can Be Adopted?
The Hindu Adoption and Maintenance Act of 1956 states that a child or person may only be adopted if:
- They are Hindus
- He or she hasn’t been adopted yet
- They are unmarried (not married) unless a usage or custom that applies to them enables them to become parents after marriage.
- He or she has not reached the age of 15 unless there is a usage or custom that applies to them that permits the adoption laws of children who are older than 15.
Other Adoption-Approvable Preconditions Include
- If the adoption is for a son, neither the adoptive parent nor the son’s son’s son should be living at the time of the adoption if they are Hindus.
- If the adoption is for a female, neither the adoptive parent nor their son’s daughter should be living at the time of the adoption if they are Hindus.
- The adoptive father should be 21 years older than the adopted son if the adoption laws is done for a boy by a male parent.
- More than one parent cannot adopt a child simultaneously. He or she must actually be placed for adoption to remove the child from his or her birth family.
The 1980 Guardian and Ward Act
For non-Hindus Laws in India, full adoption is not recognized. Instead, they can opt for guardianship under the 1980 Guardian and Ward Act. However, guardianship does not confer the same legal status as biological parenthood. Adopted children under this act do not have a legal right to inherit property, and the guardian-ward relationship lasts until the ward turns 21.
In Parsi and Christian Law Adoption
Similar to Muslim Laws In India, Parsi laws in India does not recognize adoption laws. However, Parsis can adopt a child from an orphanage with the court’s permission under the Guardian and Ward Act of 1980. Christianity also does not recognize adoption as it pertains to personal law. Christians can adopt a child from an orphanage following the same legal procedures as Muslims and Parsis.
| The court, when appointing a guardian under the Guardian and Ward Act, must prioritize the child’s welfare. |
Conclusion
The importance of standardized adoption legislation has been emphasized by the National Commission on Women Laws In India. This is to ensure that individuals deemed unsuitable by the court are not eligible for adoption laws.
For further assistance on the adoption of a child Laws In India, individuals can reach out to the legal experts at Vakilsearch. Our professionals can address queries and guide you in navigating the complexities of adoption laws.
If you seek expert advice on adoption laws, do not hesitate to contact Vakilsearch today.
