Adoption

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

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

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

Sub-section (5). Any 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 another person in a foreign country, without a valid order from the District Magistrate, shall be punishable as per section 80.

Section 57: who may adopt

Sub-section (1). 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.

Sub-section (2). In the case of a couple, the consent of both spouses is required.

Sub-section (3). A single or divorced person can also adopt, subject to the criteria in the adoption regulations.

Sub-section (4). A single male is not eligible to adopt a girl child.

Sub-section (5). Any other criteria specified in the adoption regulations.

Section 58: adoption by Indian parents living in India

Sub-section (1). Indian prospective adoptive parents living in India, irrespective of their religion, interested in adopting an orphan, abandoned or surrendered child, may apply to a Specialised Adoption Agency in the manner provided by the adoption regulations.

Sub-section (2). The Agency prepares the home study report, and on finding them eligible refers a child declared legally free for adoption to them, along with the child study report and medical report of the child.

Sub-section (3). On receipt of their acceptance of the child, with the child study report and medical report signed by them, the Agency gives the child in pre-adoption foster care and files an application before the District Magistrate for the adoption order.

Sub-section (4). On receiving a certified copy of the order, the Agency immediately sends it to the prospective adoptive parents.

Sub-section (5). The progress and well-being of the child in the adoptive family shall be followed up as provided in the regulations.

Section 59: inter-country adoption

Sub-section (1), the sixty days. If an orphan, abandoned or surrendered child could not be placed with an Indian or non-resident Indian prospective adoptive parent, despite the joint effort of the Specialised Adoption Agency and the State Agency, within sixty days from the date the child was declared legally free for adoption, that child shall be free for inter-country adoption.

Proviso. Children with physical and mental disability, siblings, and children above five years of age may be given preference over other children for inter-country adoption.

Sub-section (2). An eligible non-resident Indian, overseas citizen of India or person of Indian origin shall be given priority in the inter-country adoption of Indian children.

Sub-sections (3) to (11), the route. Such prospective parents living abroad, irrespective of their religion, apply to an authorised foreign adoption agency, Central Authority or concerned Government department in their country of habitual residence; that body prepares the home study report and sponsors the application to the Authority; the Authority examines it and, finding them suitable, refers it to a Specialised Adoption Agency where children legally free for adoption are available; the Agency matches a child and sends the child study and medical reports, which the parents accept and return signed; the Agency files an application before the District Magistrate; on the certified copy of the order it informs the Authority, the State Agency and the parents and obtains a passport for the child; the Authority intimates the immigration authorities of India and of the receiving country; the parents receive the child in person as soon as the passport and visa are issued; and the foreign agency ensures progress reports and is responsible for alternative arrangements in case of any disruption, in consultation with the Authority and the Indian diplomatic mission.

Sub-section (12). A foreigner, person of Indian origin or overseas citizen of India having habitual residence in India may apply to the Authority, with a no objection certificate from the diplomatic mission of his country in India.

Section 60: inter-country relative adoption

Sub-section (1). A relative living abroad who intends to adopt a child from his relative in India shall obtain an order from the District Magistrate and apply for a no objection certificate from the Authority.

Sub-section (2). On receipt of the order and an application from either the biological parents or the adoptive parents, the Authority issues the no objection certificate, under intimation to the immigration authority of India and of the receiving country.

Sub-section (3). After receiving it, the adoptive parents receive the child from the biological parents and shall facilitate the contact of the adopted child with his siblings and biological parents from time to time.

Sub-section (3) is distinctive and worth noting: in a relative adoption the Act does not cut the child off from his birth family, but requires contact to be facilitated.

Sections 61 and 62: the order

Section 61(1). Before issuing an adoption order, the District Magistrate shall satisfy itself that:

(a) the adoption is for the welfare of the child; (b) due consideration is given to the wishes of the child, having regard to his age and understanding; and (c) neither the prospective adoptive parents has given or agreed to give, nor the Specialised Adoption Agency, or the parent or guardian of the child in a relative adoption, has received or agreed to receive, any payment or reward in consideration of the adoption, except as permitted by the adoption regulations towards adoption fees, service charge or child care corpus.

Sub-section (2). The adoption proceedings shall be held in camera, and the case shall be disposed of by the District Magistrate within two months from the date of filing.

Section 62(1). Documentation and procedural requirements not expressly provided in this Act are as per the adoption regulations framed by the Authority.

Sub-section (2). The Specialised Adoption Agency shall ensure that the adoption case is disposed of within four months from the date of receipt of the application, and the authorised foreign adoption agency, the Authority and the State Agency shall track the progress and intervene wherever necessary so that the timeline is adhered to.

Sections 63 and 64: effect and reporting

Section 63, the effect. A child in respect of whom an adoption order is issued by the District Magistrate shall become the child of the adoptive parents, and the adoptive parents shall become the parents of the child, as if the child had been born to them, for all purposes, including intestacy, with effect from the date the order takes effect; and on and from that date all the ties of the child in the family of his or her birth shall stand severed and replaced by those created by the adoption order in the adoptive family.

Proviso. Any property which has vested in the adopted child immediately before the date on which the adoption order takes effect shall continue to vest in the adopted child, subject to the obligations attached to the ownership of that property, including the obligation, if any, to maintain the relatives in the biological family.

Section 64, reporting. Notwithstanding anything in any other law, information regarding all adoption orders issued by the District Magistrate shall be forwarded to the Authority on a monthly basis, so as to enable the Authority to maintain the data on adoption.

A worked example

A couple in Pune wish to adopt.

Are they eligible? They must be physically fit, financially sound, mentally alert and highly motivated, and both spouses must consent, section 57(1) and (2).

A single woman applies instead. She may adopt; a single or divorced person can adopt, sub-section (3). A single male, however, may not adopt a girl child, sub-section (4).

Where do they apply? To a Specialised Adoption Agency, section 58(1), irrespective of their religion.

What follows? The Agency prepares the home study report, and on finding them eligible refers a child already declared legally free for adoption, with the child study report and medical report, sub-section (2).

They accept. The Agency places the child in pre-adoption foster care and files an application before the District Magistrate, sub-section (3).

What must the District Magistrate be satisfied of? That the adoption is for the welfare of the child; that due consideration is given to the child's wishes, having regard to his age and understanding; and that no payment or reward has been given or received beyond the permitted fees, service charge or child care corpus, section 61(1).

How is it heard, and how fast? In camera, and disposed of within two months of filing, sub-section (2); and the Agency must ensure the case is disposed of within four months of the application, section 62(2).

What is the effect of the order? The child becomes theirs as if born to them, for all purposes including intestacy, and all ties with his birth family are severed, section 63. Property already vested in him stays vested in him, with its obligations, including any obligation to maintain relatives in the biological family.

Change the facts: no Indian family comes forward. If the child could not be placed with an Indian or non-resident Indian within sixty days of being declared legally free for adoption, despite the joint effort of the Specialised Adoption Agency and the State Agency, he becomes free for inter-country adoption, section 59(1); and non-resident Indians, overseas citizens of India and persons of Indian origin get priority, sub-section (2).

A couple in Canada apply. Through an authorised foreign adoption agency, Central Authority or Government department in their country; home study report; sponsored to the Authority; referred to a Specialised Adoption Agency; matched; application before the District Magistrate; passport; intimation to the immigration authorities of both countries; the child received in person; and progress reports with responsibility for alternative arrangements on disruption.

Change again: an uncle settled abroad wishes to adopt his nephew. That is inter-country relative adoption: an order from the District Magistrate and a no objection certificate from the Authority, section 60(1); and the adoptive parents must facilitate the child's contact with his siblings and biological parents from time to time, sub-section (3).

Somebody takes a child abroad without any order. He is punishable under section 80, section 56(5).

And what does the Authority know of all this? Information on all adoption orders is forwarded to it monthly, section 64.

Distinctions

What this does NOT mean

This Act is not the only law of adoption. Section 56(3) leaves adoptions under the Hindu Adoption and Maintenance Act, 1956 untouched.

Religion is not a bar under this Act. Sections 56(2), 58(1) and 59(3) all say irrespective of their religion.

Inter-country adoption is not a first option. It arises only where the child could not be placed in India within sixty days of the declaration.

An adoption order does not take away what the child already owns. The proviso to section 63 preserves property vested in him before the order, with its obligations.

And a relative adoption abroad does not cut off the birth family. Section 60(3) requires the adoptive parents to facilitate contact with the child's siblings and biological parents from time to time.

Quick revision

• 56: adoption secures the right to family for orphan, abandoned and surrendered children; relative to relative, irrespective of religion; the Hindu Adoption and Maintenance Act, 1956 is untouched; all inter-country adoptions only under this Act; taking a child abroad without a District Magistrate's order is punishable under s.80.
• 57: physically fit, financially sound, mentally alert and highly motivated; both spouses consent; single or divorced may adopt; a single male may not adopt a girl child.
• 58: application to a Specialised Adoption Agency; home study report; referral of a child legally free for adoption with the child study and medical reports; acceptance; pre-adoption foster care; application to the District Magistrate; certified copy sent on; follow up.
• 59: free for inter-country adoption after sixty days; preference for children with disability, siblings and children above five; priority to NRI, OCI and persons of Indian origin; the route through the foreign agency, the Authority and a Specialised Adoption Agency; passport, immigration intimation, receipt in person, progress reports and alternative arrangements on disruption.
• 60: inter-country relative adoption needs a District Magistrate's order and a no objection certificate, with contact with siblings and biological parents facilitated.
• 61 and 62: satisfaction as to welfare, the child's wishes and no payment; in camera, disposal within two months; the Agency's case disposed of within four months, tracked by the foreign agency, the Authority and the State Agency.
• 63 and 64: the child becomes theirs as if born to them, for all purposes including intestacy, birth family ties severed, but vested property continues to vest; all orders reported monthly to the Authority.

Test yourself

1. Who may be adopted under this Act? Orphan, abandoned and surrendered children declared legally free for adoption, and a child of a relative by another relative irrespective of their religion, section 56.

2. Can a single person adopt? Yes. A single or divorced person may adopt, subject to the criteria in the adoption regulations; but a single male is not eligible to adopt a girl child, section 57(3) and (4).

3. When does a child become free for inter-country adoption? When he could not be placed with an Indian or non-resident Indian prospective adoptive parent, despite the joint effort of the Specialised Adoption Agency and the State Agency, within sixty days from the date he was declared legally free for adoption, section 59(1).

4. Who now passes the adoption order? The District Magistrate; the word "court" was substituted throughout Chapter VIII by Act 23 of 2021 with effect from 1 September 2022.

5. What must the District Magistrate be satisfied of before issuing the order? That the adoption is for the welfare of the child; that due consideration has been given to the wishes of the child having regard to his age and understanding; and that no payment or reward has been given or received in consideration of the adoption, except as permitted by the adoption regulations towards adoption fees, service charge or child care corpus, section 61(1).

6. What is the effect of an adoption order? The child becomes the child of the adoptive parents as if born to them, for all purposes including intestacy, and all his ties in the family of his birth stand severed and are replaced by those created in the adoptive family; but property already vested in him continues to vest in him, subject to its obligations, section 63.

7. Within what time must the adoption proceedings be disposed of? Within two months from the date of filing, by the District Magistrate, and the proceedings are held in camera, section 61(2).