Adoption is not an act of charity but about taking the utmost care and responsibility of the child and also giving them a home. Adoption is just an alternative way of making a family. The child subject to adoption shall get treatment the same as the biological child of such parents. A statutory body is enacted at the central level namely ‘The Central Adoption Resource Authority (CARA)’. The main function of this body is to act as a nodal body for the adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions.
Adoption under Hindu Law
According to the Hindu Shastras, the adoptive son is no less than a biological son. After the adoption of any child, the adoptive parents have to treat the child as their biological child. And, the child acquires all the rights of his adoptive parents. The child who is subject to adoption shall be well versed with the facts of his/her adoption
Under the Hindu adoption and maintenance act, no adoption shall be valid unless, the person adopting has the capacity and 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 also the adoption is made in compliance with the provisions of this act.
The capacity of a Male to take in adoption
Any male Hindu has the capacity to take a son or daughter in adoption if he is of sound mind and is not a minor,
But the Hindu male cannot adopt the child without the consent of his wife unless-
1) the wife has completely and finally renounced the world or
2) has ceased to be a Hindu or
3) has been declared by a court of competent jurisdiction to be a woman of unsound mind.
The capacity of a Female to take in adoption
Any female is competent to take a child in adoption, who is a Hindu, who is of sound mind and is not a minor and who is not married or if he is married, then his marriage should have been dissolved or whose husband is dead or has completely and finally renounced the world or he has ceased to be a Hindu or has been declared by the court of competent jurisdiction to be of unsound mind, has the capacity to take the son or daughter in adoption.
A person capable of giving in adoption
Adoption of a child cannot be done without the consent of the father or mother or the guardian of the child.
Persons who may be adopted
Any person shall be capable of being taken in adoption,
- if the child is a Hindu
- if he or she has not already been adopted by someone else
- he or she has not been married
- he or she below the age of fifteen years
Islam does not recognize adoption. The court in the case of Mohammed Allahabad Khan Vs Mohammad Ismail held that the personal law of Muslims does not deal with the concept of adoption per se. Although any Muslim person having a desire to adopt a child he can do so by applying under the Guardians and Wards Act, 1860.
The Guardians and Ward (GWA) Act, 1860
Hindu Law expressly deals with the provision related to adoption. However, under personal laws of the Muslims, Christians, Persian; if a person has to adopt a child, then he has to approach the court for adoption under the Guardians and Wards act, 1860.
According to the Guardians and Wards Act, 1860 any child can be adopted:-
- If the child is not a Hindu.
- the child should be minor
- if the child is an orphan, abandoned, or surrendered child
- the child should be below 18 years of age.
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