Tedious Adoption Procedure in India

Recently, the District Magistrates (DM) have been empowered to give adoption orders instead of courts. It is going to impact hundreds of adoptive parents in the country as it may further delay what is already a long and tedious process.

• The Parliament passed the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021 in July 2021 in order to amend the Juvenile Justice Act (JJ Act), 2015.
• The key changes include authorizing District Magistrates and Additional District Magistrates to issue adoption orders under Section 61 of the JJ Act by striking out the word “court”.
• This was done “to ensure speedy disposal of cases and enhance accountability,” according to a government statement.
• The District Magistrates have also been empowered under the Act to inspect childcare institutions as well as evaluate the functioning of district child protection units, child welfare committees, juvenile justice boards, specialized juvenile police units, child care institutions, etc.
• The Act and the corresponding rules came into effect on September 1.
• The amendments to the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 said, “all the cases pertaining to adoption matters pending before the Court shall stand transferred to the District Magistrate from the date of commencement of these rules.”

• Starting from scratch: The cases already before courts for the past several months will have to be transferred and the process will have to start afresh this has left the stakeholders in a state of worry.
• Delayed School Admissions: This whole process may result in a delay in the school admission process of the child as a parent will not be having birth certificates.
• Question of the sanctity of DM orders: In case of any dispute regarding inheritance and succession rights of the child, the judicial order is far more tenable as DMs don’t handle civil matters that bestow inheritance and succession rights on a child.

Adoption in India is governed by two laws, both laws have their separate eligibility criteria for adoptive parents.

• Hindu Adoptions and Maintenance Act, 1956 (HAMA):
  • HAMA is the statute that governs the adoption of and by Hindus.

The definition of ‘Hindus’ here includes Buddhists, Jains, and Sikhs. It gives an adoptive child all the rights of a natural-born child, including the right to inheritance.

• • It is a parent-centric law that provides sons to the son-less for reasons of succession, etc and later adoption of daughters was incorporated because kanyadaan is considered an important part of dharma in Hindu tradition.
  • Under HAMA, a “dattaka home” ceremony or an adoption deed, or a court order is sufficient to obtain irrevocable adoption rights.
  • There are no rules for monitoring adoptions and verifying the sourcing of children and determining whether parents are fit to adopt.
• Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act):
  • Those applying under the JJ Act have to register on Central Adoption Resource Authority (CARA) portal after which a specialized adoption agency carries out a home study report. Only after the process of adoption can proceed.
  • As per the government rules, Hindus, Buddhists, Jains, and Sikhs are legalized to adopt kids.
• Until the JJ Act, the Guardians and Ward Act (GWA), 1980 was the only means for non-Hindu individuals to become guardians of children from their community.
  • However, since the GWA appoints individuals as legal guardians and not natural parents, guardianship is terminated once the ward turns 21 and the ward assumes individual identity.

Conditions for Adoption (Male): Section 7 of HAMA defines that, any Hindu male, can adopt a child if he fulfills the following conditions:

• He is a major
• He is of sound mind i.e. must not be suffering from insanity or idiocy.
• He shall adopt any child only with the consent of his wife, if living at that time, In the case of divorce consent is not necessary but in the case of judicial separation, consent would be necessary.
• The consent must be obtained prior to the civil adoption takes place.
• 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 provision.

Conditions for Adoption (Female): Section 8 of the HAMA, 1956, any Hindu female, can adopt a child if she complies with the following:

• She is a major
• After attaining the age of eighteen years, a woman gets the capacity to adopt even though she herself is unmarried.
• Where after the adoption, she gets married, her husband would be stepfather and she herself would remain the adoptive mother as earlier.
• She is of sound mind.
• In order to adopt a child, she must be unmarried or in case if married, then her marriage should have been dissolved or her husband is no more or has completely renounced the world.
• This, therefore, brings into place the gender biases in the adoption laws.
• Adoption by an unmarried can also take place despite the fact that she is having an illegitimate child

• Few Children in the Adoption pool: According to the latest figures there are only 2,188 children in the adoption pool, while more than 31,000 parents waiting to adopt a child.
• This is resulting in longer waiting periods, lasting up to 3 years.
• Adoption Failures: Many times, adoptions fail because the children have trouble attaching to their adoptive parents. Such issues can be handled well if counseling sessions are held, both before and after the adoption procedure for a brief period of time.
• Threat of child trafficking.

• Need for child-centric laws: Optional, enabling, and gender-just” special adoption law like in other countries.
• Check malpractices: There is a need to check malpractices and improve monitoring.