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Abstract :
According to Section 2(2) of Juvenile Justice (Care and Protection) Act, 2015, “‘Adoption’ means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.”
Despite being a secular country, India is yet to display progressive changes and eradicate religious hindrances with respect to adoption. As of today, there is no general law of adoption that applies correspondingly to all religions. Only the personal law governing Hindus, the Hindu Adoption and Maintenance Act, 1956 deals with and further lays down the procedure for adoption. However, for other religions like Islam, Christianity, and Zoroastrianism, there are no separate provisions that guarantee the right to adoption. Even though the foster parents are vested with guardianship rights under the Guardians and Wards Act, 1956 it cannot be equated with adoption rights. Hence, the researcher advocates for the enactment of uniform adoption laws that govern overall, irrespective of their caste, religion, or creed. The paper attempts to critically analyze various provisions of law that deal with adoption in India and provide certain suggestions, which if incorporated would improve the current scenario.
Keywords: Adoption, Maintenance, Personal Laws, Hindu Adoptions and Maintenance Act, 1956, Guardians and Wards Act, 1956.
INTRODUCTION :
According to Cambridge English Dictionary, adoption can be defined as, “the act of legally taking away a child to be taken care of like your own”. Adoption is viewed as a partnership between the party ready to adopt the child and the child himself, who is governed by either 'personal law' or 'general law' in India.
In India, the practice of adoption has been followed for many decades. However, the legal framework for the same was established only in the 19th century. The provisions for Adoption laws in India have been primarily laid down by the Hindu Adoptions and Maintenance Act, 1956, Juvenile Justice (Care and Provisions of Children) Act, 2000, and Guardians and Wards Act, 1890. The HAMA, 1956 deals with the legal process for the adoption of children by Hindus and other lawful responsibilities including maintenance of wife, children, and in-laws. This Act extends only to Hindus, Buddhists, Sikhs, and Jains and it provides the child adopted all rights and privileges enjoyed by a naturally-born child, including the right to inherit property. Other religions in India like Muslims, Christians, Parsis, and Jews don’t have separate provisions under their personal laws that govern the concept of adoption. Thus, the Guardians and Wards Act, 1890 can be extended to adoption under all other religions that don’t fall within the ambit of HAMA, 1956. Henceforth, the remedy of legal adoption is available only to the Hindus, while the other communities can only act as legal guardians. It is high time this religion-based adoption nature is put away for good riddance as it is retrograde and conservative. The Juvenile Justice (Care and Protection of Children) Act of 2000, as well as its following amendment in the year 2006, represent a substantial legislative attempt to recognize the adoption of orphaned, abandoned, and surrendered children by persons belonging to all faith backgrounds. In the case of Shabnam Hasmi v. Union of India & Others, 2005 it was held that under the Juvenile Justice (Care and Protection of Children) Act of 2000, anyone, regardless of religion, can adopt a child.
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