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The Adoption Obstacle

Recently, the apex court issued a notice in a matter seeking simplification of the adoption process in India. The current laws pertaining to adoption make it difficult for couples or individuals to adopt orphans and provide them a better life.

The Supreme Court last month issued a notice in a matter seeking simplification of the adoption process in India. A bench, comprising Justices DY Chandrachud and Surya Kant, heard the petition in which the counsel for the petitioner highlighted the ground reality with respect to the adoption process in India and the kind of impact it has had on the country over a period of time.

The petition and the apex court’s notice was long overdue. Laws pertaining to the adoption process in the country has definitely made it difficult for couples or individuals trying to adopt orphans and provide them a better life. This despite the fact that the treatment and facilities for orphans is woeful and open to abuse and mistreatment.

The Juvenile Justice (Care and Protection of Children) Act, 2015, Section 2(42), defines an orphan as a child:

(i) Who is without biological or adoptive parents or legal guardian; or

(ii) Whose legal guardian is not willing to take, or capable of taking care of the child.

The Juvenile Justice (Care and Protection of Children) Act, 2015, Section 2(2) defines “adoption” as a process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents, with all the rights, privileges and responsibilities that are attached to a biological child.

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Adoption in India is governed by the Juvenile Justice (Care and Protection of Children) Act, 2015, Adoption Regulations, 2017, and The Hindu Adoptions and Maintenance Act, 1956, for citizens who identify themselves as Hindus, Sikhs, Jains or Buddhists. Adoption is not allowed for citizens who identify themselves as Muslims, Parsis and Christians since they fall under personal laws. However, this does not mean that they cannot take care of children. The Guardians and Wards Act, 1890, provides a provision for guardianship of children.

Section 6 of The Hindu Adoptions and Maintenance Act, 1956, mentions the requisites of valid adoption. It says that no adoption shall be valid unless:

(i) The person adopting has the capacity, and also the right, to take in adoption;

(ii) The person giving in adoption has the capacity to do so;

(iii) The person adopted is capable of being taken in adoption; and

(iv) The adoption is made in compliance with the other conditions mentioned in this chapter.

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Sections 7 and 8 of the Act deals with the capacity of a Hindu male to take in adoption and the capacity of a Hindu female to take in adoption, respectively. Section 7 says that any Hindu male is allowed to adopt a son or a daughter if he is of sound mind and is not a minor. He shall not adopt except with the consent of his wife, unless the wife has completely 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.

Section 8 says that any female Hindu who is of sound mind, is not a minor and 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, has the capacity to take a son or daughter in adoption.

The issue of adoption has been brought in the public domain through various petitions filed in the Supreme Court from time to time.

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On April 11, 2022, the apex court bench of Justices DY Chandrachud and Surya Kant heard a plea in The Temple Of Healing vs Union Of India related to the adoption process in India. The petitioner informed the Court about the abysmal rate of adoption as well as several other drawbacks. It highlighted that around 4,000 children are adopted in India every year, whereas the number of orphans in India is three crore. This data has forced the need for amendment in the current adoption laws.

During the hearing of the matter, the petitioner’s counsel said:

“This is the case related to adoption and its drawbacks. Around 4,000 children are adopted in our country every year, but there are three crore orphans in our country and there are infertile couples too who are desperate to get a child. Parents are not educated enough, therefore the scheme should be introduced based on the Income Tax Scheme which was issued 16 years back. The Ministry had issued notification wherein they have given some leniency to the prospective parents.”

In a similar petition filled by Ashwini Kumar Upadhyay in 2021, the petitioner sought the removal of anomalies in grounds of adoption and guardianship and making them uniform for all citizens across religions. The petitioner also sought directions to declare the grounds of adoption and guardianship under different acts based on different religions per se discriminatory. The petitioner also contended that it is also contrary to Articles 14, 15, and 21 of the Constitution. He further stated that even after 73 years of Independence, India does not have a gender and religion-neutral law for adoption and guardianship for all citizens. Every religion has its own personal laws which are still not codified and being governed by primitive personal laws.

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In April, the Supreme Court observed that there was inter-country adoption where a child went through different parents and there are many instances of abuse. “We can’t let orphans suffer. We must come up with a water-tight policy,” said the top court.

The adoption laws currently being followed are outdated, and with fast changing societal norms, they do not serve any purpose. The number of orphans in India is already alarming. The current adoption laws are stringent and involve a cumbersome process, including uncompromising scrutiny of the families who are going to adopt the child, eventually affecting the total number of orphans being adopted in the country despite there being a large number of children who need love, care, support and a dignified life.

One important thing to be kept in mind while proposing changes to make adoption laws more simplified is the responsibility of the law-making bodies. They should not overlook the most important aspect in adoption—the under-privileged children are often at huge risk of sexual exploitation and other crimes. It is the responsibility of the government to look after these deprived kids and scrutinize the changes proposed in the law which needs urgent reform.

—By Mansi Sharma and India Legal Bureau

Regulating and assisting the adoption process

There are various agencies involved in the adoption process:

Central Adoption Resource Authority (CARA) is a statutory body of the Ministry of Women & Child Development, Government of India. It functions as the nodal body for the adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions. CARA is designated as the central authority to deal with inter-country adoptions in accordance with the provisions of the Hague Convention on Inter-country Adoption, 1993. CARA ensures smooth functioning of the adoption process from time to time, issues adoption guidelines laying down procedures and processes to be followed by different stakeholders of the adoption programme. CARA primarily deals with adoption of orphan, abandoned and surrendered children through its associated/recognised adoption agencies.

State Adoption Resource Agency acts as a nodal body within the state to promote and monitor adoption and non-institutional care in coordination with CARA. .

Specialised Adoption Agency is recognized by the state government under sub-section 4 of Section 41 of the Act for the purpose of placing children in adoption.

Authorised Foreign Adoption Agency is recognised as a foreign social or child welfare agency that is authorised by CARA on the recommendation of the concerned central authority or government department of that country for coordinating all matters relating to adoption of an Indian child by a citizen of that country.

District Child Protection Unit is set up by the state government at the district level under Section 61A of the Act. It identifies orphan, abandoned and surrendered children in the district and gets them declared legally free for adoption by Child Welfare Committee.

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