Introduction
Adoption means to take a child of other parents, voluntarily, as one’s own child, by conforming to the formal legal procedure. Under Indian law, adoption is the legal union between the parties willing to adopt and the child that is being adopted. Adoption laws in our country fall within the arena of personal laws. They vary from religion to religion. In India, an Indian, irrespective of whether he is married, single, or divorcee may adopt a child. However, the documentation process for each class of adoptive parent differs from the others.
In India, adoption is governed by three major legislations. The provisions of these acts concerning who can adopt, who can be adopted, and conditions to adopt differ from each other. The acts governing adoption are-
- The Hindu Adoptions and Maintenance Act, 1956.
- The Guardians and Wards Act, 1890.
- Juvenile Justice (Care and Protection of Children) Act, 2015.
The law of adoption for Hindus, Sikhs, Jains, and Buddhists is governed by the Hindu Adoptions and Maintenance Act (HAMA). Personal laws of Christians, Jews, Parsis and Muslims do not recognize adoption. Since there are no separate adoption laws, people belonging to these religions, who are desirous of legally adopting a child can resort to the Guardians and Wards Act (GAWA). A significant step of our legislation towards the adoption of children who are orphaned, surrendered or abandoned is the Juvenile Justice Act (JJ Act), wherein adoption is allowed irrespective of religion.
Earlier, there was a wide gap between the adoption rights of males and females. However, after certain amendments, legislations have been able to overcome this gender-bias.[1]
Position under the Hindu Adoptions and Maintenance Act.[2]
As per section 7 of HAMA, 1956, any married Hindu male could adopt a child but with the consent of his wife. However, consent would not be required if the wife 1. ceased to be a Hindu, 2. renounced the world, or 3. if she was declared to be of unsound mind by a competent court. As per section 8 of HAMA, 1956 a married Hindu female could not adopt unless her husband 1. ceased to be a Hindu, 2. renounced the world, or 3. if he was declared to be of unsound mind by a competent court.
We can note that a married Hindu woman, in the absence of the above disqualifications, was not competent to adopt a child on her own even with the consent of her husband. While the husband could adopt the wife’s consent, the wife could only be a consenter to adoption and was not allowed to initiate adoption on her own. This gender-bias was reaffirmed by the Supreme Court in the landmark case Malti Roy Chowdary v. Sudhindranath Majumdar.[3] When the validity of adoption came into question, the court held that the wife is not competent to take in a child for adoption even with the consent of her husband.
However, this gender discrimination has been removed by bringing an amendment in the HAMA, 1956 through the Personal Laws (Amendment) Act, 2010. Today, just as a married man, a woman can take in adoption with the consent of the husband and this consent can be dispensed with in case of such legal incapacities as stated afore. This amendment has helped to bring significant gender parity in the Hindu law of adoption. It has enabled women living under a judicial separation or separately from the husband, to adopt a child with the consent of the husband, which otherwise was not possible. Moreover, a widow can now adopt not only for the deceased husband but also for herself exclusively.
Similar gender disparity also existed previously with respect to giving a child for adoption. A mother was not allowed to give her child in adoption, even with the husband’s consent; however, the husband was competent to do the same. The position of a mother has changed, and now both father and mother have equal right to give a child in adoption. However, none of them can exercise the right without the consent of the other unless one of them has 1. ceased to be a Hindu, 2. renounced the world, or 3. if he/she was declared to be of unsound mind by a competent court.
Position under the Guardians and Wards Act.[4]
Since the personal laws of Christians, Jews, Parsis and Muslims do not recognise the adoption, they can adopt under GAWA. However, according to section 8 of GAWA, the adoptive parents will be conferred only a right of guardianship. The child is given the status of the award and not an adoptive child. The child is not given the legal right of inheritance as in the case of a biological child. Once the child attains the age of twenty-one, he is no longer considered as award; assuming an individual identity, he is free to break away all his ties with the adoptive parents.
According to section 8, any person desirous of being the guardian of a minor can apply for an order under GAWA. However, since GAWA confers only guardianship right, there is no mention of conditions or consent for adoption in case of married couples.
Position under the Juvenile Justice (Care and Protection of Children) Act.[5]
This Act is a child-centric secular law. It allows all people to adopt irrespective of their religion, gender or marital status. The JJ Act has provided uniform adoption laws for people who are otherwise prevented by their respected personal laws. As per Section 57 of the Act, in the case of married couples, consent of both spouses is necessary for valid adoption to take place. In the absence of consent of one, the adoption shall be considered void. Moreover, a single or divorced person can also adopt, but a single male is not allowed to adopt a female child.
Conclusion
Giving or taking a child in adoption are big decisions in a couple’s life. Today the consent of both husband and wife is equally crucial for adoption. Originally, HAMA was a gender-discriminatory law. It was only the husband that could initiate adoption, although with the wife’s consent. The wife was a mere participant in the process and could not initiate adoption even with the husband’s consent. Personal laws have always been reflective of the patriarchal structure of society. However, through amendments, today, it is not only the husband’s consent that is important but also that of the wife. The role of the judiciary in highlighting voids that existed and bringing reforms for making law egalitarian is commendable.
[1] Personal Laws (Amendment) Act, 2010.
[2] The Hindu Adoptions and Maintenance Act, 1956.
[3] AIR 2007 Cal 4.
[4] The Guardians and Wards Act, 1890.
[5] Juvenile Justice (Care and Protection of Children) Act, 2015.
This Article is Authored by Sakshi Sharma, 1st Year B.A.LL.B(Hons.) Student at The WB National University of Juridical Science.
Also Read – What Is Requisite of Adoption and Who Are Capable of Giving an Adoption?
