Adoption by Persons of Other Religions: the Juvenile Justice Act and the CARA Regulations

In one line

A person who is not a Hindu, or who wants to adopt a child who is not a Hindu, adopts under the Juvenile Justice Act through a secular, centrally regulated process ending in an order of the District Magistrate.

Why a second adoption law exists

The Hindu Adoptions and Maintenance Act 1956 is closed in two directions, and both are in [The Requisites of a Valid Adoption].

Section 10(i) requires the child to be a Hindu. A Christian, Muslim, Parsi or Jewish child cannot be adopted under it.

Section 2 applies the Act to Hindus, Buddhists, Jains and Sikhs and to the residual class. A Muslim, Christian, Parsi or Jew cannot adopt under it.

And the personal laws of those communities did not, in general, provide for adoption at all. The practical consequence, for most of the twentieth century, was that a person outside the Hindu fold who wanted to bring up a child could become that child's guardian under the Guardians and Wards Act 1890, taken in [The Guardians and Wards Act: Appointment of a Guardian], and no more. Guardianship is not adoption: it ends at majority, it creates no parent-child relationship, and it gives no right of inheritance.

Chapter VIII of the Juvenile Justice Act 2015 supplies what was missing, and it does so irrespective of religion.

Section 56: the scope of the Chapter

Sub-section (1). Adoption shall be resorted to for ensuring the right to family for the orphan, abandoned and surrendered child, as per the provisions of the Act, the rules, and the adoption regulations framed by the Authority.

Sub-section (2). Adoption of a child from a relative by another relative, irrespective of their religion, may be made under this Act and the regulations.

Sub-section (3). Nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoptions and Maintenance Act 1956.

Sub-section (4). All inter-country adoptions shall be done only under this Act and the regulations.

Sub-section (5). A person who takes or sends a child to a foreign country, or takes part in any arrangement for transferring the care and custody of a child to a person in a foreign country, without a valid order from the District Magistrate, is punishable under section 80.

How the two Acts fit together

Sub-section (3) is the key to the relationship. The two statutes do not compete. A Hindu adopting a Hindu child may proceed under the 1956 Act, and the Juvenile Justice Act does not apply to that adoption. Everybody else, and every inter-country adoption, comes here.

Sub-section (2) is the wider door. Adoption from a relative by another relative may be made under this Act irrespective of religion, so a Muslim uncle adopting his brother's child proceeds under Chapter VIII.