ADOPTION OF CHILD IN INDIA WITH SPECIAL REFERENCE TO HINDUS:

INTRODUCTION

Adoption means the process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship.The dictionary meaning of the term adoption is the act of taking and rearing of the child of others parents as ones own child. Attitudes and laws regarding adoption vary greatly.Adopting a child in India a few decades back was something that couldnt even be imagined. After all, it was a question of acquiring a right to nourish and cherish the fruit grown by somebody else and our society did not permit any relation which wasnt out of blood. But times have changed and we have seen a paradigm shift in people attitude towards raising a child. Kudos to some of the daring parents who started the trend and went on with it in spite of facing a strong opposition by the society.Legally speaking, except for adoption by Hindus, Indian law has no provision for adoption. Children are placed under guardianship of adopting parents to exit the country, and adoption must take place in the parents home country. But the more important aspect is whether we as a society have accepted adoption or not! Well, the answers can be contemplated in various ways. To a section of our society, it has been received as good news and is practiced by many people who arent blessed biologically by the almighty. Perhaps, some people are taking this option otherwise too. It is for this reason that adoption agencies have become a good business venture and is flourishing in the urban parts of India. Encouragement by friends and family is also a factor in inclining a couple to take this option of raising a child that does not have their genes. But such is not the case in majority sections of our country. Some of us still think that children are a miracle of god and if somebody has been deprived of it biologically, he has no right to acquire it otherwise. It is even condemned as a sin in some of the societies and is considered to be equivalent to snatching or stealing the property of somebody else. Only more grave! On the other side of the coin, sometimes people are also hesitant in taking this step as they are afraid to swim against the tide.

TRACES OF CHILD ADOPTION AS OF ANCIENT TIMES IN INDIA:

In early 17th Century Dattaka-mmms[footnoteRef:1] by Nanda-Pandita was considered to be the classical work on the topic of Adoption and subsequently used by the British authorities as Hindu law. Later it was translated by Sutherland in 1821. Another renowned work Dattaka-chandrika is attributed to Kuvera. [1: Sanskrit Text of Nanda Pandit's Dattaka Mimansa and its English translation; "Law,Liberty and Social Justice" (Asia Publications)]

The main points, according to the Dattaka-Chandrika, are as follows: there are two motives in adopting a son; viz.(i) to perform obsequial rites is honour of the adoptive father and his ancestors,(ii) to be the successor of the adoptive father. Any sonless man may adopt a son; 'sonless' implies the absence of son, grandson and great-grandson. Except for a Sudra, one cannot adopt a daughter's son or a sister's son. A person's single son cannot be given in adoption. A woman cannot give away a son without the permission of her living husband. If the husband is dead, she can do so in the absence of prohibition by the husband. An adopted son is placed on equal footing with a natural son. In the Commentaries and Digests, while the fathers power of giving in adoption is universally recognized, the same power is denied or doubted to the mother. The learned writer of the Dattaka Minansa quotes the following text of Saunaka,By one having an only son the gift of a son should not be made; by one having many Sons the gift of a son should anxiously be made, and comments since the masculine gender is used in the compound word by one having many Sons the gift of a son, by a woman is prohibited[footnoteRef:2] [2: In Hindu mythology he is one of the Saptarishis (Seven Great Sages Rishi)]

But on the basis of the text of Vasishtha except with the assent of her husband he admits that the mother can give her child in adoption with the assent of her husband curiously enough, Nand Pandit denies the power of taking in adoption to a widow, but gives the power of giving in adoption to a widow and maintains that in such cases assent must be presumed in as much as Vedic instances indicate the legality of such gifts and in as much as several texts of sages recognise independent power of the mother to give in adoption.

Then, referring to text to Manu[footnoteRef:3], Baudhayana[footnoteRef:4] , Yajnavalkaya and Vasistha he laid down the following three propositions: [3: Manu is a title accorded to the progenitor of mankind, and also the very first king torule this earth, who saved mankind from the universal flood. He was absolutely honestwhich was why he was initially known as "Satyavrata", (One with the oath of truth)] [4: Baudhayana Dharma Shastra: (Sanskrit) A book of laws associated with the KrishnaYajur Veda and governing studentship, marriage, household rituals, civil law, etc. It isfollowed by brahmins of Southwest India.]

(i) The competency of both parents united is the principal;(ii) That of the father alone independently of the mother is the mediocre, and(iii)That of the mother, depending as it does on the assent of her husband, is an inferior alternative.Indian culture has its distinctive paradoxes. Indian mythology is full of stories where babies were born in one place and brought up elsewhere by non parents. The tenets of Hindu Law clearly state that 12 kinds of sons were recognized and one of them was the Dattaka son, i.e, a son whom his father or mother gives as a son affectionately in a time of distress to one who is of the same caste. Some of the prominent examples are Goddess Sita from Ramayana and Lord Krishna from Mahabharata. Other characters from those days are Daan Veer Karan andShakuntala. These characters and admired even defied within the same tradition, childless women are some time treated with contempt or petty and denied certain ritual roles, especially in the upper caste groups. A tress memory of this attitude still lingers in the collective unconscious of our people. It is often quoted as a narrative in which there is total acceptance of the notion that an adoptive mother can love and care for non offsprings also establishes the reciprocation of the love by the child. The fact that Krishna is referred as Yoshada Nandan appears very crucial to the notion of adoption and entitlement[footnoteRef:5]. [5: Vinita Bhargava, Adoption in India, 2005, Sage Publications]

INDIAN LEGAL POSITION:The Constitution of India gives paramount consideration to the welfare of the children. Clause (3) of Article 15 enables the State to make special provisions for children. Article 23 prohibits the traffic in human beings and forced labour. Article 24 provides that no child below the age of 14 yrs shall be employed to work in any factory or mine or engaged in any other hazardous employment. Clause (e) and (f) of Article 39 provide that the State shall direct its policy towards securing, inter alia, that the tender age of children is not abused, that children are not forced economic necessity to enter avocations unsuited to their age and strength and that they are given facility to develop in a healthy manner and in conditions of freedom and dignity and childhood and youth are protected against exploitation and against moral and material abandonment. As far as the concept of intercountry adoption is concerned, there is concrete legislation present in India. In fact before the Laxmikant Pandey v. Union of India[footnoteRef:6], it did not even have any guidelines regarding it. In the aforementioned case, the prerequisites for foreign adoption were laid down with the help of various international guidelines and subject to Indian culture framed the rules thereof. However, the legislative intent to enact a law regarding the same has been there since a long time. The adoption of Children Bill, 1972 was introduced in the Rajya Sabha sometime in 1972 but it was subsequently dropped, presumably because of the opposition of the Muslims stemming from the fact that it was intended to provide for a uniform law of adoption applicable to all communities including the Muslims. In view of the rather strong sentiments expressed by the members of the Muslim Community and with a view not to offend their religious susceptibilities, the Adoption of Children Bill, 1980 which was introduced in the Lok Sabha eight years later on 16th December, 1980, contained an express provision that it shall not be applicable to Muslims. The Adoption of Children Bill 1980 has unfortunately not yet been enacted into law but it would be useful to notice some of the relevant provisions of this Bill in so far as they indicate what principles and norms the Central Government regarded as necessary to be observed for securing the welfare of children sought to be given in adoption to foreign parents and what procedural safeguards the Central Government thought, were essential for securing this end. Clauses 23 and 24 of the Adoption of Children Bill, 1980 dealt with the problem of adoption of Indian children by parents domiciled abroad and, in so far as material, they provided as follows: [6: [AIR1984 SC469]]

23 (1) Except under the authority of an order under Section 24, it shall not be lawful for any person to take or send out of India a child who is a citizen of India to any place outside India with a view to the adoption of the child by any person.(2) Any person who takes or sends a child out of India to any place outside India incontravention of Subsection (1) or makes or takes part in any arrangements for transferring the care and custody of a child to any person for that purpose shall be punishable with imprisonment for a term which may extend to six months or with fine, or with both. (24) (1) If upon an application made by a person who is not domiciled in India, the district court is satisfied that the applicant intends to adopt a child under the law of or within the country in which he is domiciled, and for that purpose desires to remove the child from India either immediately or after an interval, the court may make an order (in this section referred to as a provisional adoption order) authorising the applicant to remove the child for the purpose aforesaid and giving to the applicant the care and custody of the child pending his adoption as aforesaid :Provided that no application shall be entertained unless it is accompanied by a certificate by the Central Government to the effect that-(i) the applicant is in its opinion a fit person to adopt the child;(ii) the welfare and interests of the child shall be safeguarded under the law of the country of domicile of the applicant;(iii) the applicant has made proper provision by way of deposit or bond or otherwise in accordance with the rules made under this Act to enable the child to be repatriated to India, should it become necessary for any reason.(2) The provisions of this Act relating to an adoption order shall, as far as may be, apply in relation to a provisional adoption order made under this section. These provisions in the Adoption of Children Bill, 1980 have been borne in mind by theSupreme Court while formulating the guidelines which must be observed in permitting an Indian child to be given in adoption to foreign parents.

JUDICIAL INTERPRETATION: INDIAN CASE LAWSThe Hindu Marriage Act, 1954 applies only to the Hindus. There is no law governing the adoption by Christians, Parsis or Muslims, nor is there any statutory provisions providing for adoption of a child by foreigners living abroad.

Re Rasiklal Chaganlal Mehta[footnoteRef:7]: The inadequacy of the law of adoption to address the issue of Intercountry adoption was highlighted by the Gujarat High Court in Re Rasiklal Chaganlal Mehta. It is common knowledge that such adoptions are on increase. While it is a welcome trend that poor and needy children get an opportunity to get affluent families and homes, it cannot be denied that such adoptions have also opened opportunities for unscrupulous agencies to commercialize the practice, and abuse and exploitation of children is not known. [7: AIR 1982 Guj 193]

Fact of the case: In Rasiklal, a German couple wished to adopt a girl from an orphanage at Rajkot, and take her to Germany with them.Issue: In the absence of any statutory provision under which a foreigner could adopt an Indian child, the applicants tried to explore the provision under S.9(4) of the HinduAdoptions and Maintenance act, 1954(HAMA).12 In order to overcome the hurdle, which required that the adopter under the act has to be Hindu, they even adopted Hinduism. They had to shuttle between the passport office and the courts and ultimately had to file another application under the GWA, 1890.Judgement: After detailed consideration of all aspects of such adoption, the Division bench of the High Court came out with various guidelines, e.g., in any case involving Intercountry adoption, a notice should be compulsorily issued to the concerned welfare agency; there should be a provision in the adoption order providing for periodical report pertaining to the maintenance and well-being of the child in the hands of the adoptive parents, the court must ensure that the adoption is legally valid under the laws of both the countries and that the child should be able to immigrate to that country and also obtain the nationality of the parents.

Lakshmi Kant v. Union of India: In Lakshmi Kant v. Union of India, the Supreme Court laid down the normative and procedural safeguards in regard to foreign Intercountry adoptions.

DEVELOPMENT OF CODIFY LAW: PRE CONDITIONS FOR ADOPTION:

Under Indian law there is no specific law for child adoption but due to judicial activism there are lot of cases which have set precedents for the contiguous issues and other complexities in child adoption. Like under, Andhya alias Supriya Kulkarni & another v. The Union of India & another[footnoteRef:8], they have questioned the validity thereof on the ground of violation of Articles 14 and 21 of the Constitution of India. The Hindu Adoption & Maintenance Act, 1956 - Sections 11(i) and (ii) provisions read thus: [8: AIR 1998 Bom 228]

"In every adoption, the following conditions must be complied with (i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son (whether by legitimate blood relationship or by adoption),

(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption." Thus, the impugned provisions injunct a person from having second son or daughter by adoption. The main challenge put forth is that the Right to Life under Article 21 as explored through various judicial pronouncements has numerous dimensions. Life with human dignity is one such. The right to have size of a family according to one's own choice is comprehended within the concept of human dignity. Since the impugned provisions prevent such right, they are violative of the Constitutional guarantee. Ancient Hindu law alone rendered recognition therefore, that too was limited to as male child by an issueless parent. During one's lifetime, there could not be adoption of another male child. Adoption of a female child was not at all recognized. Predominant mythological design was to have a son, even by adoption, to perform last rites so that deceased could avail Moksha i.e. Eternal Bliss and also to continue the generation of adoptive parent.In some part of the country, the dancing girl could adopt a female child. This was more a customary and perhaps with a view to perpetuate the traditional avocation of dancing. This could not, however, be a part of Hindu law. The Orissa High Court in Krushna Kahali v. Narana Khali[footnoteRef:9], held such custom as invalid. [9: AIR 1991 Ori 134]

Hindu Adoptions & Maintenance Act, 1956, herein after written as HAMA, codified the practices as prevailing under Ancient Hindu in relation to adoption. By way of an amendment, the Act incorporated a significant feature of adoption of a female child which was unknown to the Ancient law. This being the personal law, the adoption was confined by and to Hindu parents and that too of a Hindu child.The HAMA abrogates all pre-Act customs and usages pertaining to adoption except in two areas, where custom is preserved:(i) A married child can be adopted, if custom permits such an adoption,(ii) A child of fifteen years or above can be adopted if custom permits such an adoption.If in the natural family some property was vested in the child before adoption, that will remain in him and he cannot be divested of it just because he has gone out to another family of adoption Further, the child retains sapinda relationship and degrees of prohibited relationship in his natural family for the purpose of marriage[footnoteRef:10]. The Hindu Adoptions & Maintenance Act, 1956, amending Act, 45 of 1962 brought a revolution. Amended sections which threw light upon vital issues were as follows: [10: Legalpundits International Services]

i. To provide adoption and congenial home for an abandoned child.ii. To authorize manage of Fondling or Remand Homes to give abandoned children in adoption, with the permission of the Court.iii. To include a child, legitimate or illegitimate, who has been abandoned by both of his parents or whose parentage is not known, but who, in either case is brought up as Hindu to be a Hindu by religion.Indian Law as far as child adoption is concerned is religion-specific in, although it is a very conservative approach from the law point of view. It toughened practices that were unjust to children and hindered the formation of a Uniform Civil Code.According to Article 44 of the Constitution of India:The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India[footnoteRef:11]. [11: Bare Act of Constitutional of India by Universal Publications]

Over the years several attempts were made to formulate a general secular law on adoption. The attempts of Parliament in this direction did not bear fruit, all these went in vain on account of a number of reasons. The history of all such efforts does not bring credit to the secular credentials of the Indian polity. The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it. The Adoption of Children Bill, 1980, aiming to provide for an enabling law of adoption applicable to all communities other than the Muslim community, was opposed by the Bombay Zoroastrian Jashan Committee, which formed a special committee to exempt Parsis from the bill. The National Adoption Bill, tabled twice in Parliament in the seventies, has yet to enter the statute books. The history of attempt to bring in the concept of secular adoption into our system of laws narrates a sad tale of in action and action without conviction on the part of the legislature.

THE HINDU ADOPTION AND MAINTENANCE ACT, 1956:

The Supreme Court inGhisalal vs Dhapubai (D) By Lrs.has examined the provisions of the Hindu Adoption and Maintenance Act relating to adoption. The Court has examined various precedents on the subject and has inter alia held as under;For deciding the question whether the adoption of Ghisalal by Gopalji was valid, it will be useful to notice the relevant provisions of the 1956 Act. The same read as under:Section 6 of HAMA 1956 provides Requisites of a valid adoption[footnoteRef:12] - No adoption shall be valid unless - [12: Bare Act of Hindu Law by Universal publications]

(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. Section 7 of HAMA provides Capacity of a male Hindu to take in adoption[footnoteRef:13] [13: Bare Act of Hindu Law by Universal publications]

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, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife 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. Explanation. - If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.Section 8 of HAMA provides Capacity of a female Hindu to take in adoption[footnoteRef:14] Any female Hindu - [14: Bare Act of Hindu Law by Universal publications]

(a) who is of sound mind, (b) who is not a minor, and (c) who 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. Section 12 of HAMA provides Effects of adoption[footnoteRef:15] - An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family: Provided that - [15: Bare Act of Hindu Law by Universal publications]

(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption. Presumption as to registered documents relating to adoption. Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."Section 6 reproduced above enumerates the requisites of a valid adoption. It lays down that no adoption shall be valid unless the person adopting has the capacity as 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 in Chapter II. Section 7 lays down that any male Hindu who is of sound mind and is not minor has the capacity to take a so nor a daughter in adoption.This is subject to the rider enshrined in the proviso which lays down that if the male Hindu has a wife living then he shall not adopt except with the consent of his wife unless she is incapacitated to give the consent by reason of her having completely and finally renounced the world or her having ceased to be a Hindu or she has been declared by a court of competent jurisdiction to be of unsound mind. The explanation appended to Section 7 lays down that if a person has more than one wife living at the time of adoption, then the consent of all the wives is sine qua non for a valid adoption unless either of them suffers from any of the disabilities specified in the proviso to Section 7. Section 8 enumerates the conditions, which must be satisfied for adoption by a female Hindu. Section 12 deals with effects of adoption.It declares that from the date of the adoption, an adopted child is deemed to be a child of his/her adoptive father or mother for all purposes and his ties in the family of his or her birth shall stand severed and replaced by those created in the adoptive family. Proviso (a) to this section contains a restriction on the marriage of adopted child with a person to whom he or she could not have married if he or she had continued in the family of his or her birth. Clause (b) of the proviso saves the vested right of the adopted child in the property subject to the obligations, if any, attached to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth.Likewise, clause (c) to the proviso lays down that the adopted child shall not divest any person of any estate vested in him or her before the date of adoption. Section16 which embodies a rule of presumption lays down that whenever any document registered under any law for the time being in force evidencing adoption and signed by the person giving and person taking the child in adoption is produced before any court, then it shall presume that the adoption has been made after complying with the provisions of the Act unless proved otherwise. In Indian society, a male spouse enjoyed the position of dominance for centuries together. This was particularly so in Hindu families. Under the old Hindu Law, a Hindu male had an absolute right to adopt a male child and his wife did not have the locus to question his right or to object to the adoption.A wife could adopt a son to her husband but she could not do so during her husband's lifetime without his express consent. After his death, she could adopt a son to him, in certain parts of India, only if he had expressly authorized her to do so. In other parts of India, she could adopt without such authority. However, in no case a wife or a widow could adopt a son to herself. An adoption by a woman married or unmarried of a son to herself was invalid and conferred no legal rights upon the adopted person. A daughter could not be adopted by a male or a female Hindu. The physical act of giving was a prime necessity of the ceremonial requirements relating to adoption. As to datta homam, that is, oblations of clarified butter to fire, the law was not finally settled and there was divergence of judicial opinion.The 1956 Act now provides for adoption of boys as well as girls. By virtue of the proviso to Section 7, the consent of wife has been made a condition precedent for adoption by a male Hindu. The mandatory requirement of the wife's consent enables her to participate in the decision making process which vitally affects the family. If the wife finds that the choice of the person to be adopted by the husband is not appropriate or is not in the interest of the family then she can veto his discretion. A female Hindu who is of a sound mind and has completed the age of eighteen years can also take a son or daughter in adoption to herself and in her own right.A female Hindu who is unmarried or a widow or a divorcee can also adopt a son to herself, in her own right, provided she has no Hindu daughter or son's daughter living at the time of adoption [Sections 8, 11(1) and 11(2)].However, if she is married, a female Hindu cannot adopt a son or a daughter during the lifetime of her husband unless the husband is of unsound mind or has renounced the world. By incorporating the requirement of wife's consent in the proviso to Section 7 and by conferring independent right upon a female Hindu to adopt a child, Parliament has tried to achieve one of the facets of the goal of equality enshrined in the Preamble and reflected in Article 14 read with Article 15 of the Constitution.The term `consent' used in the proviso to Section 7 and the explanation appended thereto has not been defined in the Act. Therefore, while interpreting these provisions, the Court shall have to keep in view the legal position obtaining before enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation and if that is done, it would be reasonable to say that the consent of wife envisaged in the proviso to Section 7 should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her. If the adoption by a Hindu male becomes subject matter of challenge before the Court, the party supporting the adoption has to adduce evidence to prove that the same was done with the consent of his wife. This can be done either by producing document evidencing her consent in writing or by leading evidence to show that wife had actively participated in the ceremonies of adoption with an affirmative mindset to support the action of the husband to take a son or a daughter in adoption.The presence of wife as a spectator in the assembly of people who gather at the place where the ceremonies of adoption are performed cannot be treated as her consent. In other words, the Court cannot presume the consent of wife simply because she was present at the time of adoption. The wife's silence or lack of protest on her part also cannot give rise to an inference that she had consented to the adoption.

THE GUARDIANS AND WARDS ACT 1890:Under this act, people belonging to the communities such as Muslim, Christians, Parsis and Jews and who wish to adopt can only take the guardianship of the child. The statute does not deal with the adoption but it mainly deals with guardianship. The process makes the child a ward, not as adopted child. This act confers only guardian child relationship. This relationship exists until child completes 21 years of age. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000:This Juvenile Justice Act Provides for the adoption of abandoned and abused children by people of all communities. Sec 41 (3) of the JJA states that Juvenile justice boards shall be empowered to give children in adoption implying that adoptive powers are not automatic and state government must empower their respective justice board but no state govt. has notified empowerment of its JJBs on adoption matters.Juvenile Justice Amendment Act 2006:Juvenile Justice Amendment act allows non Hindus to adopt but there is hardly any awareness about 2006 amendment to Juvenile Justice Act. Secondly, amending the act was not enough there has to be more clarity about procedures and information how the law should be applied. Instead of getting approval of higher courts like district court and high courts (in case of the inter country adoption. Adoption should be done locally by child welfare committees and juvenile justice boards. There are no rules or infrastructure in place nor is there clarity on related issues like if the law will apply to Muslims.Juvenile Justice Amendment act will apply to all Indians but it is not clear how this law would override the provisions of other personal laws.

ADOPTION LAWS- NEED TO BE CHANGED:

Adoption has always been considered a wonderful opportunity to provide the child with home and the parents a child. It offers an excellent alternative to institutional care for an abandoned, destitute or neglected child in an atmosphere of happiness, love and understanding which only a family can provide. In the early days, the practice of adoption was shrouded in secrecy, which was restricted in the traditional family. The tradition at that time was that, childless couples adopt a child with a view to ensure the continuity of tradition and to avoid alienation of property. Professional intervention of child welfare agencies in the process of adoption that began in the early seventies had changed the societal attitude and concept of adoption. Thereby significant changes in the legal, social and practice levels of adoption programme with systematization of the procedures to the best interest of the child, adoptive parents and the birth parents had taken place. This has enhanced the rate of adoption and today, child emerged as the fulcrum of the family and more and more couples are coming forward to adopt a child as soon as it is known that it is not possible for them to have a biological child.

There are some drawbacks related to adoption in Hindus which need to be changed to have a better and lively atmosphere. They are:

1. The Hindu Adoption and Maintenance Act is parent oriented with religious colour. Under this Act, a man without a child can adopt either a stranger or a near agnate, such as brothers son. But in practice, strangers are rarely adopted, the childless parent choose to adopt a near agnate or his relatives son. It is mainly the poorer and lower caste Hindus who prefer to go beyond their clan or group. In upper and middle class families, it is not mere childlessness combined with the ownership of landed property that includes many male Hindus to adopt a son.2. The next drawback of our Hindu Law of adoption is that an illegitimate child cannot be adopted. The child must be a Hindu. However, the word Hindu has been widely defined and includes Jains, Buddhists and Sikhs or anyone who must be presumed to be Hindu within the definition of Hindu in section 2 of the Hindu Adoption and Maintenance Act. Illegitimacy is a major social problem in our society as millions of our children are illegitimate. Adoption is in practice a common solution to a case of illegitimacy.3. Another drawback of our Hindu law of adoption is that a Hindu spinster, a widow or a divorcee can adopt a child for herself, but a wife cannot adopt a child even with the consent of her husband.4. According to section 8 and proviso to section 7 with the Explanation mention about the capacity of a male or female Hindu to take in adoption. Male Hindu has the capacity to take a son or daughter in adoption. Obtaining the consent of the wife or if there are more than one living wife the consent of all of them is necessary for adoption, unless they or any of them suffered any of the enumerated infirmities rendering such consent unnecessary. The conscious and positive as well as deliberate omission to provide for a female Hindu seeking or obtaining any such consent from a co or junior widow is a definite pointer to indicate that the legislative intent and determination was not to impose any such clog on the power specifically conferred upon the female Hindu.5. To subject the exercise of power by the senior widow to adopt, conditioned upon the consent of the junior widow where a Hindu male, died leaving behind two widows with no progeny of his own, would render the exercise of power more cumbersome and paradoxical, leaving at times, such exercise of power to adopt only next to impossibility.6. The object underlying section 7 of the Hindu Adoption and Maintenance Act is to completely abrogate the customary Hindu law under which a male Hindu can foist the relationship of an adoptive mother upon his wife without her consent or even despite her objections. After the Act, if the requisite consent of the wife is obtained, the wife is regarded as the adoptive mother because the adoption so made by a male Hindu is not only himself but by his wife as well. In case of a Hindu female, there is no such provision for her taking an adoption during the husbands lifetime even if he consents. In other words, in the case of an adoption by a Hindu female, there is no question of her making an adoption in any contingency in which the adoption could be held not only for herself but to her husband as well. Section 14 contains the deeming provisions so called, in the case of an adoption by a male or female and this has to be read along with sections 7 and 8.Case Law: G. Appaswami Chettiar v. Sarangapani Chettiar[footnoteRef:16] [16: AIR 1978 SC 1051]

7. It is also important to notice that all the deeming provisions relating to affiliation in section 14 of the Hindu Adoption and Maintenance Act are only in relation to living persons and not to persons who were dead at the time of the adoption. Section 14(1) refers only to the living wife who should be deemed to be the adoptive mother and it does not include a wife who was dead at the time of the adoption. This shows that the deceased wife is not to be regarded as the adoptive mother of the boy adopted. If in the case of a deceased wife there is no such affiliation the position is a fortiori in the case of a deceased father. Reading sections 8 and 14 of the said Act, together the widow has no capacity to make an adoption to the deceased husband and such an adoption will not therefore be in accordance with the provisions contained in chapter II of the said Act within the meaning of section 5.8. The enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its subsequent amendment in 2006 is definitely a significant effort of the legislature towards recognition of adoption of orphan, abandoned and surrendered children by people irrespective of their religious status. It cant be denied that it is a secular legislation only under which any person can adopt a child being orphan, abandoned and surrendered child irrespective of his/her religion. It is more children oriented unlike other legislations. But it may be mentioned at the same time that some more factors need to be considered specifically by the legislature. As for example, this Act stipulates adoption by any person irrespective of his/her marital status, but it does not specify whether the consent of the other spouse is required to be obtained by the adopting spouse in case adoption by a married couple. This might create misconceptions among the Hindus as in Hindu Laws (HAMA) taking consent of the wife by her husband is an essential criteria for adoption. Secondly, the Act is silent about the criteria for age difference between the adoptee and adoptive parents in case they are of opposite sex. This is an essential factor for adoption, which should be considered seriously for the purpose of preventing child abuse and trafficking. All these facts are obviously applicable to all religions and therefore, it is necessary to specify them for the interest of the children.Some suggestions have been given below which may be implemented at the legislative and administrative level, which would make adoption more effective in India 1. Section 7, as it appears on the statute, reflects the legislative defect in draftsmanship. It serves no purpose. It needs to be amended. The cases of natural guardianship of adopted sons and daughters adopted by a Hindu male or by a Hindu female (having no husband) can be covered by inserting two new clauses, just after clause (a) of section 6 of the Hindu Minority and Guardianship Act, namely (a) in the case of an adopted son or daughter by a Hindu male the adoptivefather and after him, the adoptive mother.(b) in the case of an adopted son or daughter by a Hindu female (having nohusband) the adoptive mother.2. The adoption charges and donations must be fixed. The prescribed fee for an inter-country placement is obviously higher than an internal one. . Many Indian agencies apparently have tie up with agencies abroad and collect huge sums as gifts and donations that go unaccounted. Hence, adoption charges must be prescribed in Rules and appropriate authorities must ensure that mal-practices are not taking place.3. Usually the Child Study report (CSR) is prepared once the child is free for adoption. The CSR is obviously prepared by the social worker of the agency who need not be an experienced person. Hence it is to be submitted that the CSR must be prepared and signed by a senior staff of the organization who should be held personally responsible for the report.4. After legal adoption, there should be statutory provisions in law for monitoring and filing progress reports on the well-being of respective children. In situations that are detrimental to the interests of the child in question, there should be provisions to initiate appropriate action for the best interest of the child. The Child Welfare Committee of the concerned district may be empowered to do the needful.5. As per the provisions of Hindu Adoption and Maintenance Act, adoption is irrevocable and confers full status of a biological child, including the right to inherit as it was provides in the case of Gulkarin vs. Prahlad[footnoteRef:17] and also in the case of Gopal vs. Kamta[footnoteRef:18]. Parents cannot adopt a child of a particular sex, if they already have a biological or adopted child of the same sex. According to Section 5(1) of HAMA, if adoption by a Hindu is not in accordance with its provisions, the same shall be treated as void. Hence, for Hindus, Juvenile Justice Act cannot be of any use in the matter of adoption. [17: AIR1968Raj 51] [18: AIR1972 MP 193]

6. With the passing of the Hindu Succession Act, 1956, which treats sons and daughters equally in the matter of succession. So the law of adoption among Hindus should be simplified. There is no longer any justification for allowing a husband to prevent his wife from taking a child in adoption after his death. Now after passing of the said Act, the adoption made by a Hindu widow will be in her own right. No person need be divested of any property which has vested in him by reason only of the fact that subsequent to such vesting an adoption has been made. This rule of divesting has been the case of many a ruinous litigation.In India, there is no secular law of adoption covering all the people. Although the India government had attempted several times since independence to pass a uniform and secular bill for the whole country, but the Muslims and a section of the Parsis have had strong objections to the various bills introduced in Parliament. As result, Muslims, Christians and Parsis have no adoption laws of their own and they have no adoption rights but only a guardianship rights under the Guardians and Wards Act 1890 where the adopted child does not get the inheritance and other rights.Article 44 of the Constitution declares that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India. The Law Commission, in its 153rd report, recommended that a uniform law be enacted to regulate adoptions, but nothing seems to have happened in this regard. Over the years several attempts were made to formulate a general secular law on adoption. The attempts of Parliament in this direction did not bear fruit, all these went in vain on account of a number of reasons. Being a signatory to United Nations Convention on Rights of the Child (UNCRC) and The Hague Convention on Inter-country Adoption, India is obliged to enact appropriate legislation on adoption, applicable to all societies and communities alike. So a Uniform Adoption Law in India should be introduced, that definitely has to be appreciated.

CONCLUSIONIt is clear that the only statute which recognises adoption is the Hindu Adoptions and Maintenance Act, 1956. This Act has been departed from the earlier law in liberalise way. But at the same time, this Act has some loopholes also. This Act only applies to Hindus and there is no such specific law governing adoption in any other religions.Though the Act has tried to eradicate gender biasness but still not able to do that fullyas in the case of Malti Roy Choudhary vs. Sudhindranath Majumdar[footnoteRef:19]it was clearly shown that gender discrimination still exists. Adoption should be with the consent of both the parents, both parents should equally participate; otherwise it will be the child only who is going to suffer. The children are vulnerable and totally dependent on the adults who are making their life decisions, and hence safeguarding their rights and interests is of prime importance. Adoption not only fulfils the desire of the parenthood on part of the adoptive parents but also provides a family to the child. [19: AIR 2007 Cal 4, (2007) 1 CALLT 323 HC]

Other aspect could be that adoption in a sense helps in population control. All children are God gifted. So, there should not be any difference between ones own child and the others child. Rather than conceiving more number of children, one can adopt which will ultimately serve two purposes: population control and most important is child welfare.There are so many children who dont have parents, homes. By adopting them, they will be able to entail the proper education, relations, etc. The only thing needs to be taken care that the child is getting in the right hands. This can be ensured by checking the adoptive family background, parents marital relationship, attitude for adoption, financial stability, etc.To ensure the welfare of the children, there needs to be uniform civil code for adoption.I would conclude the article by a famous quote by Joyce Maguire Pavao-Adoptionis not about finding children for families, it's about finding families for children.