Adoption

In one line

A Hindu may adopt under his personal law; anybody may adopt under the Juvenile Justice Act; and since 2022 the order comes from the District Magistrate and not from a court.

In the wording a student can write in an exam: India has no single law of adoption. A Hindu, Buddhist, Jain or Sikh may adopt under the Hindu Adoptions and Maintenance Act 1956, and the adopted child becomes the child of the adoptive parents for all purposes. There is no corresponding provision in Muslim, Christian, Parsi or Jewish law, under which a person may take a child in GUARDIANSHIP under the Guardians and Wards Act 1890 but not in adoption. The Juvenile Justice (Care and Protection of Children) Act 2015 supplies a SECULAR route open to everybody: section 56 provides that adoption is to be resorted to for ensuring the right to family of orphan, abandoned and surrendered children; section 57 sets the eligibility of prospective adoptive parents; section 58 the procedure for Indian parents living in India; sections 59 and 60 for inter-country adoption; section 61 the disposal of the proceedings, now by the DISTRICT MAGISTRATE after the Amendment Act of 2021; section 63 the effect; and sections 65 to 73 the Specialised Adoption Agencies, the State Adoption Resource Agency and the Central Adoption Resource Authority.

The two routes

The Hindu Adoptions and Maintenance Act 1956. Applies to Hindus, Buddhists, Jains and Sikhs. Its scheme: only a person of sound mind, a major and capable of taking in adoption may adopt; a married man requires the CONSENT of his wife unless she has renounced the world, ceased to be a Hindu or been declared of unsound mind; since the amendment of 2010 a married woman may adopt on the same footing; a person may not adopt a son if he has a Hindu son, son's son or son's son's son living, nor a daughter if he has a Hindu daughter or son's daughter living; and where a male adopts a female or a female a male, there must be an age difference of at least TWENTY-ONE YEARS. The child must be under fifteen and unmarried unless a custom permits otherwise.

Its two features that matter here. It is a private transaction between the giver and the taker, requiring no court order; and it is confined by religion.

The Juvenile Justice Act 2015. Open to anybody IRRESPECTIVE OF RELIGION, and confined to a different set of children: only an ORPHAN, ABANDONED or SURRENDERED child declared legally free for adoption by the Child Welfare Committee under section 38, or a child of a relative, or the child of a spouse from an earlier marriage.

In Shabnam Hashmi v. Union of India, decided in 2014, the Supreme Court held that the Juvenile Justice Act is an enabling secular provision available to any person irrespective of religion, so that a person whose personal law does not recognise adoption may still adopt under it. The Court declined to declare a right to adopt a fundamental right, leaving that to the legislature. Note the case; the judgment is not in this book's case bank, so name it without a citation.