Adoption is a legal process that establishes a parent-child relationship between individuals who are not biologically related. In India, adoption is governed by a complex framework of personal laws, reflecting the country’s pluralistic society. Unlike some jurisdictions with a uniform adoption code, India’s adoption laws vary across religious communities, leading to differences in rights, procedures, and recognition of adopted children. The lack of uniformity has often resulted in legal challenges, particularly concerning the rights of adoptive parents and children.
Among Hindus, which include Sikhs, Buddhists, and Jains, adoption is governed by the Hindu Adoption and Maintenance Act, 1956 (HAMA). This Act provides a comprehensive legal framework for adoption, recognizing the adopted child as equivalent to a biological child in all respects, including inheritance rights. The Act permits both married couples and single individuals to adopt, subject to certain conditions. For instance, a male Hindu adopting a daughter must be at least 21 years older than her, and a female Hindu adopting a son must be at least 21 years older than him. The law also stipulates that no Hindu can adopt if they already have a child of the same gender. The adopted child, upon completion of adoption, severs all ties with the biological family and acquires full legal rights in the adoptive family.
Muslim law traditionally does not recognize adoption in the same sense as Hindu law. Instead, it allows kafala, a form of guardianship, where the child is cared for but does not become a legal heir. Under Muslim personal law, an adopted child retains inheritance rights from the biological family but has no automatic rights in the adoptive family. This position stems from the belief that adoption cannot sever blood ties. However, Muslims may adopt under the secular Juvenile Justice (Care and Protection of Children) Act, 2015, which provides for adoption irrespective of religion, ensuring the child is legally treated as a natural child of the adoptive parents.
Christian and Parsi personal laws also historically did not recognize full adoption. Guardianship under the Guardians and Wards Act, 1890 was the primary mechanism available, which granted only custody and guardianship, not full parental rights. Adopted children under this law had limited rights, particularly in matters of inheritance, since guardianship did not equate to parenthood. However, with the enactment of the Juvenile Justice Act, Christians and Parsis can now adopt legally in the same manner as Hindus, ensuring equal status for adopted children.
The Juvenile Justice (Care and Protection of Children) Act, 2015 provides a uniform and secular framework for adoption across communities. It empowers both married couples and single individuals, irrespective of religion, to adopt children through a regulated process overseen by the Central Adoption Resource Authority (CARA). This Act ensures that adoption serves the best interests of the child, laying down procedures, safeguards, and rights. Under this law, the adopted child enjoys the same status, rights, and privileges as a biological child, including inheritance. The JJ Act has thus filled the gaps left by personal laws, creating a more inclusive framework for adoption in India.
Judicial pronouncements have also contributed significantly to the development of adoption laws. In Shabnam Hashmi v. Union of India (2014), the Supreme Court held that the right to adopt is a fundamental right available to all citizens under the JJ Act, regardless of religion. This decision emphasized that personal laws cannot prevent individuals from adopting if they choose to do so under a secular statute. The judgment was hailed as a step towards ensuring equality and protecting the rights of children to a family.
Despite these reforms, challenges remain in the implementation of adoption laws. Bureaucratic delays, lack of awareness, and social stigma attached to adoption continue to hinder the process. Moreover, the coexistence of personal laws with secular adoption laws creates confusion, particularly in matters of inheritance, succession, and guardianship. Calls for a Uniform Civil Code often include demands for harmonizing adoption laws to ensure clarity and uniformity across communities.
In conclusion, adoption laws in India reflect the diversity of personal laws and the gradual move towards a more secular, child-centric approach. While Hindus have a well-defined adoption framework under HAMA, Muslims, Christians, and Parsis historically relied on guardianship but now have recourse to the JJ Act for full adoption rights. Judicial interventions and statutory reforms have strengthened the position of adopted children, bringing them closer to equality with biological children. However, the journey towards a uniform, streamlined, and efficient adoption system is still ongoing, requiring further legislative clarity and social acceptance.
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