ADOPTION IN INDIA The custom and practice of adoption in India dates back to the ancient times. Although the act of adoption remains the same, the objective with which this act is carried out has differed. It usually ranged from the humanitarian motive of caring and bringing up a neglected or destitute child, to a natural desire for a kid as an object of affection, a caretaker in old age, and an heir after death.[iii] But since adoption comes under the ambit of personal laws, there has not been a scope in the Indian scenario to incorporate a uniform law among the different communities which consist of this melting pot. Hence, this law is governed by various personal laws of different religions. Adoption is not permitted in the personal laws of Muslims, Christians, Parsis and Jews in India. Hence they usually opt for guardianship of a child through the Guardians and Wards Act, 1890. Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a child. The adoption is under the Hindu Adoption and Maintenance Act of 1956 that was enacted in India as a part of the Hindu Code Bills. It brought about a few reforms that liberalized the institution of adoption.

1. LAWS , RULES & REGULATIONS
GOVERNING ADOPTIONS IN INDIA
DR ALKA MUKHERJEE
NAGPUR M.S. INDIA
Dr Alka Mukherjee Nagpur 1

2. DR ALKA MUKHERJEE
MBBS DGO FICOG FICMCH PGDCR PGDMLS MA(PSY)
Director & Consultant At Mukherjee Multispecialty Hospital
MMC ACCREDITATED SPEAKER
MMC OBSERVER MMC MAO – 01017 / 2016
Present Position
 Director of Mukherjee Multispecialty Hospital
 Hon.Secretary INTERNATIONAL COUNCIL FOR HUMAN RIGHTS
 Hon.Secretary NARCHI NAGPUR CHAPTER (2018-2020)
 Hon.Secretary AMWN (2018-2021)
 Hon.Secretary ISOPARB (2019-2021)
 Life member, IMA, NOGS, NARCHI, AMWN & Menopause
Society, India, Indian medico-legal & ethics association(IMLEA),
ISOPRB, HUMAN RIGHTS
 Founder Member of South Rapid Action Group, Nagpur.
 On Board of Super Specialty, GMC, IGGMC, AIIMS Nagpur,
NKPSIMS, ESIS and Treasury, Nagpur for “ WOMEN SEXUAL
HARASSMENT COMMITTEE.”
mukherjeehospital@yahoo.com
www.mukherjeehospital.com
https://www.facebook.com/
Mukherjee Multispeciality
https://www.instagram.com/
Achievement
 Winner of NOGS GOLD MEDAL – 2017-18
 Winner of BEST COUPLE AWARD in Social
Work - 2014
 APPRECIATION Award IMA - MS
 Past Position
 Organizing joint secretary ENDO-GYN
2019
 Vice President IMA Nagpur (2017-2018)
Vice President of NOGS(2016-2017)
Organizing joint secretary ENDO-GYN
Organizing secretary AMWICON – 2019

3. Presently, there are 2 Acts, under which adoption of
children can be undertaken in India:-
• Hindu Adoption Maintenance Act, 1956 (HAMA)
• Juvenile Justice (Care & Protection of Children) Act, 2015 (JJ
Act)
• Model JJ Rules, 2016 (JJ Rules)
• Adoption Regulations, 2017 (AR 2017)
• Hindu Adoption and Maintenance Act, 1956 (HAMA)
• This Act pertains only to Hindus, wherein a Hindu
parent/guardian can give a child in adoption to another
Hindu parent (Sec 2 of HAMA)

4. • The requisites of a valid adoption under HAMA can be
ascertained by the following (Sec 6 of HAMA):
• The person adopting has the capacity, and also the right, to
take in adoption; the person giving in adoption has the
capacity to do so; the person adopted is capable of being
taken in adoption; and the adoption is made in compliance
with the other conditions mentioned.

5. • Under this Act, a parent can adopt a male child, if he does
not have any male child or male grand-child or can adopt a
female child, if he does not have any female child or female
grand-child.
• Sec 7 of HAMA: Any male Hindu who is of sound mind and is
not a minor has the capacity to take a son or a daughter in
adoption. Provided that, the adoption takes place with the
consent of the wife/wives (where husband is adopter and
wife is merely consenter).
• Sec 8 of HAMA: Any female Hindu who is of sound mind,
who is not a minor, and who is not married (unmarried,
divorcee or widow has the capacity to take a son or daughter
in adoption.

6. • Sec 10 of HAMA: Under this Act, No person shall be capable
of being taken in adoption unless the following conditions
are fulfilled, namely-
• he or she is a Hindu;
• he or she has not already been adopted;
• he or she has not been married, unless there is a custom or
usage applicable to the parties which permits persons who
are married being taken in adoption;
• he or she has not completed the age of fifteen years, unless
there is a custom or usage applicable to the parties which
permits persons who have completed the age of fifteen
years being taken in adoption.

7. UNDER THIS ACT, VALID ADOPTIONS ARE
DEFINED AS FOLLOWS
• If any adoption is of a son, the adoptive father or mother by
whom the adoption is made must not have a Hindu son
(whether by legitimate blood relationship or by adoption)
living at the time of adoption;
• if the adoption is of a daughter the adoptive father or
mother by whom the adoption is made must not have a
Hindu daughter (whether by legitimate blood relationship or
by adoption) living at the time of adoption;
• if the adoption is by a male and the person to be adopted is
a female, the adoptive father is at least twenty-one years
older than the person to be adopted;

8. • If the adoption is by a female and the person to be adopted
is a male, the adoptive mother is at least twenty-one years
older than the person to be adopted;
• the same child may not be adopted simultaneously by two
or more persons;
• The child to be adopted must be actually given and taken in
adoption by the parents or guardian concerned.
• Adoption can be concluded through a registered Adoption
deed through court, subject to compliance with the
provisions of the Act (Sec 16 of HAMA).
• 2.1.7 A valid adoption cannot be cancelled (Sec 15 of
HAMA).

9. • No person shall receive or agree to receive /shall give or agree to
give to any other person any payment or reward in
consideration of the adoption (Sec 17 of HAMA).
• 2.1.9 Courts permission to adopt under this act is required only in
the following cases
• where both the father and mother are dead;
• where both the father and mother have completely and finally
renounced the world;
• where both the father and mother have abandoned the child;
• where both the father and mother have been declared to be of
unsound mind by the court concerned;
• where the parentage of the child is not known.

10. • 2 Juvenile Justice (Care & Protection of Children) Act, 2015
(JJ Act)
• This is a secular Act, under which a couple or a single parent
can adopt an orphan / abandoned / surrendered child (Sec
56(1) & 58(1) of the JJ Act, Reg 4 (a) of AR 2017).
• Nothing in this act shall apply to adoption of children made
under the provisions of HAMA (Sec 56(3) of the JJ Act).

11. ADOPTIONS UNDER THIS ACT SHALL BE
DEFINED BY THE FOLLOWING:-
• As per Sec 38 of the JJ Act, an Orphan, Abandoned & Surrendered
(OAS) child/children is declared legally free for adoption by the
Child Welfare Committee (CWC) (Sec 38 of JJ Act & Reg 6, 7 of AR
2017).
• Children of relatives, as defined in Sec 2(52) of the JJ Act, can also
be adopted by In-country parents (Sec 56(2) of the JJ Act & Reg 51
of AR 2017).
• Children of relatives, as defined in Sec 2(52) of the JJ Act, can also
be adopted by Inter-country parents (Sec 60 of the JJ Act & Reg
53, 54 of AR 2017).
• All Inter-country adoptions shall be done as per the provisions of
this Act and Adoption Regulations framed by the Authority.(Sec
56(4) of the JJ Ac t)
• Children up to the age of 18 years can be adopted (Sec 2(12) of JJ
Act).

12. • Detailed procedure for adoption has been defined in AR,
2017, formulated by Central Adoption Resource Authority
(CARA) and notified the Government of India, under the JJ
Act 2015.
• Under this Act, the eligibility of the Prospective Adoptive
Parents (PAPs) is defined by Sec 57 of the Act and Reg 5 of
AR 2017, which is elaborated as follows:-
• 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.
• In case of a couple, the consent of both the spouses for the
adoption shall be required.

13. • 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.
• A single male is not eligible to adopt a girl child.
• No child shall be given in adoption to a couple unless they
have at least two years of stable marital relationship.
• 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:-

14. Age of the Child Maximum
composite age of
PAPs (Couple)
Maximum age of
single PAP
Up to 4 yrs 90 yrs 45 yrs
Above 4 yrs and
below 8 yrs
100 yrs 50 yrs
Above 8 yrs up to 18
yrs
110 yrs 55 yrs

15. • The minimum age difference between the child and either of the
prospective adoptive parents shall not be less than twenty-five
years.
• The age criteria for prospective adoptive parents shall not be
applicable in case of relative adoptions and adoption by step-
parent.
• Couples with three or more children shall not be considered for
adoption except in case of special need children as defined in Reg
2(12) of AR 2017, hard to place children as mentioned in
Regulation 50 and in case of relative adoption and adoption by
step-parent.
• The eligibility and suitability of the PAPs is ascertained through a
Home Study done by the Specialised Adoption Agency (SAA) (Sec
58(2) of the JJ Act and Reg 9(13) of AR 2017).

16. • The Court procedure followed for Adoption under the JJ Act
is defined in Sec 61 of the JJ Act and read with Reg 12, 17 &
55 of AR 2017.
• Post adoption Follow up of the adoptive family both in case
of Incountry and Inter-country is undertaken for 2 years by
the SAA and the Authorised Foreign Adoption Agency (AFAA)
respectively (Reg 13 & 19 of AR 2017 respectively).
• Salient aspects of Adoption under HAMA and JJ Act, are as
tabulated underneath:-

17. • Only for Hindus A Secular Act.
• Same sex children cannot be No such conditions adopted
• Children only up to 15 years of Children up to 18 years of age
age can be adopted can be adopted.
• Registered deed finalizes Adoption order finalizes adoption,
adoption, court permission deed is not required required in
some cases.

18. • An OAS child in SAA/CCI JJ Act provisions for belongs to the
State & cannot rehabilitation of OAS children in be adopted
under HAMA. Such the SAA/CCI and these children
application should not be have to be placed in adoption
entertained by the courts under this Act.
• Suitability of the PAPs, Welfare & Best Interests of the
sourcing of the child and the Child is ensured due to the built
post-adoption follow up cannot in mechanisms in the JJ Act
be ascertained/ensured for adoption under HAMA

19. • Courts may require services of There is no requirement of
Scrutiny Committee in case scrutiny and the same has not
declaratory suit is filed for been envisaged under JJ Act due
adoptions under HAMA to the built in scrutiny
mechanisms.
• Inter-country adoptions can All Inter-country adoptions shall
not be done under HAMA as be done as per provisions of
this these fall under private and Act. (Section 56(4) of the JJ
Act, direct adoption and is not 2015) supported by Hague
Convention on Adoptions.

20. • Guardianship and Wards Act (GAWA)
• This is not an Adoption Law as it does not establish a parent
child relationship; it only establishes a Guardian and Ward
relationship only till the child attains 18 years of age (Sec
41(c) read with Sec 4(1)).
• The cases applicable under GAWA are admissible under Civil
Miscellaneous Applications (CMA) or Miscellaneous Judicial
Case (MJC).
• The eligibility for applying for guardianship order and the
court procedure as per CPC, 1908 is defined under Sec 7 to
26 of GAWA, 1890.

21. • Guardianship petitions can only be filed by a person entitled
as defined in Sec 8 of GAWA.
• PAPs are resorting to filing an application under GAWA for
taking custody of OAS children with a view to undertake
adoption under HAMA through a deed.
• Rehabilitation of OAS children has to be as per the JJ Act
2015 and such petitions shall not to be entertained.

22. • In case of applicant being given guardianship under GAWA,
the interest of the child cannot be ensured in the absence of
proper eligibility check and follow up.
• The Guardian and the Ward have no legal rights and
responsibilities towards each other as soon as the child
attains majority (18 years).