Adoption

What is Adoption?

**Adoption** is the legal process by which a person takes another person's child as their own, establishing a **permanent parent-child relationship** that is recognised and protected by law. Once adoption is legally completed, the adopted child acquires the same rights and status as a biological child — including rights of inheritance, maintenance, and succession.

In everyday terms, adoption is the formal, legal way of becoming a parent to a child who was not born to you. It is different from foster care (which is temporary) and guardianship (which does not create a parent-child relationship). After adoption, the child's legal ties with the biological parents are typically severed, and new ties are established with the adoptive parents.

Legal Definition and Framework

India has two primary legal frameworks governing adoption, depending on the religion of the adoptive parents.

1. Hindu Adoptions and Maintenance Act, 1956 (HAMA)

This Act governs adoption by **Hindus, Buddhists, Jains, and Sikhs**. It is the only personal law in India that provides for **complete legal adoption** creating a full parent-child relationship.

#### Key Provisions

- **Section 5:** Conditions for a valid adoption:

- The person adopting has the **capacity and right to adopt**.

- The person giving the child in adoption has the **capacity to do so**.

- The person being adopted is **capable of being adopted**.

- The adoption is made in compliance with the **conditions** prescribed.

- **Section 6:** Who may adopt:

- Any **male Hindu** who is of sound mind, not a minor, and has the consent of his wife (if married). If the wife is deceased, has renounced the world, has been declared of unsound mind, or has ceased to be Hindu, consent is not required.

- Any **female Hindu** who is of sound mind, not a minor, and is unmarried, widowed, divorced, or whose husband is of unsound mind, has renounced the world, or has ceased to be Hindu.

- **Section 7:** Who may give the child in adoption — the **father, mother**, or **guardian** (with court permission).

- **Section 9:** Persons capable of being adopted — must be Hindu, not already adopted, not married (unless custom permits), and below the age of **15 years** (unless custom permits otherwise).

- **Section 10:** Conditions:

- A male cannot adopt a child if he already has a Hindu son, grandson, or great-grandson (whether biological or adopted) living at the time. A female cannot adopt a child of the same sex if she already has such a child.

- The adopted child must be at least **21 years younger** than the adoptive mother (if the child is male) or father (if the child is female).

- **Section 12:** Effect of adoption — the adopted child is deemed to be the child of the adoptive parent **from the date of adoption** for all purposes. The child ceases to be the child of the biological parents.

2. Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act)

This Act provides a **secular, religion-neutral** adoption framework available to all Indian citizens, regardless of religion, and also to foreigners seeking to adopt Indian children. This is the primary route for **Muslims, Christians, Parsis**, and persons of any other religion.

#### Key Provisions

- **Section 56-73:** Govern adoption, prescribing eligibility, process, and effect.

- **Section 57:** Eligibility criteria for prospective adoptive parents:

- Must be **physically fit, financially sound, and mentally alert**.

- **Single parent** may adopt (a single male cannot adopt a girl child).

- **Married couple** must have stable marital relationship of at least **two years** and both spouses must consent.

- **Age criteria:** The composite age of the prospective parents should not exceed the limits prescribed by CARA regulations.

- No restrictions based on **religion, caste, or community** of the child.

- **Section 58:** The adoption process is regulated by the **Central Adoption Resource Authority (CARA)**, a statutory body under the Ministry of Women and Child Development.

- **Section 63:** A court **decree of adoption** is mandatory — the District Court must issue an adoption order after satisfying itself that the adoption is in the **best interest of the child**.

Role of CARA

The **Central Adoption Resource Authority (CARA)** is the nodal body for adoption in India. It:

- Maintains the **Child Adoption Resource Information and Guidance System (CARINGS)** — the online platform for matching prospective parents with adoptable children.

- Regulates all adoption agencies (Specialised Adoption Agencies).

- Oversees **inter-country adoptions** (where Indian children are adopted by foreign nationals), ensuring compliance with the Hague Convention on Intercountry Adoption, 1993 (ratified by India in 2003).

- Issues **Adoption Regulations, 2022** prescribing detailed procedures, timelines, and eligibility criteria.

When Does This Term Matter?

When Forming a Family

Adoption is one of the most significant life decisions for individuals and couples who wish to become parents. It provides a legal framework for building a family while simultaneously providing a home to children who need one. The process can take **several months to over a year**, depending on the category of child and the availability of matching children.

In Succession and Inheritance Disputes

Once adopted, the child's inheritance rights shift from the biological family to the adoptive family. Under **Section 12 of HAMA**, the adopted child inherits from the adoptive parents as if born to them. This frequently leads to litigation — biological heirs may challenge the validity of the adoption, or the adopted child may face resistance from the adoptive family's biological children.

The Supreme Court in **Lakshman Singh Kothari v. Rup Kanwar (1961) 3 SCR 790** held that a valid adoption irrevocably transfers the adopted child from the biological family to the adoptive family, and the child acquires all the rights of a natural-born child.

In Property Disputes

Adoption has significant implications for **Hindu Undivided Family (HUF)** property and coparcenary rights. An adopted son becomes a coparcener in the adoptive father's HUF and acquires a share in the joint family property. The **Hindu Succession (Amendment) Act, 2005**, which gave daughters equal coparcenary rights, also applies to adopted daughters.

For Non-Hindu Adoption

Prior to the JJ Act, there was **no complete adoption law for Muslims, Christians, and Parsis** — they could only take children under the **Guardians and Wards Act, 1890**, which granted guardianship (not adoption), meaning no parent-child relationship was created and the child had no inheritance rights from the guardian. The JJ Act, 2015 changed this by providing a secular adoption framework open to all.

Practical Significance

- **Creates permanent parent-child bond** — unlike guardianship or foster care, adoption is irrevocable and creates full legal ties.

- **Inheritance rights transfer** — the adopted child inherits from the adoptive parents, not the biological parents.

- **CARA process is mandatory** for all non-HAMA adoptions — private adoptions without CARA approval are not legally valid.

- **Single parents can adopt** — the law does not restrict adoption to married couples.

- **Inter-country adoption is regulated** — Indian children can be adopted by foreign nationals, but only through CARA and with court approval.

Frequently Asked Questions

Can a Muslim adopt a child in India?

Under Muslim personal law, there is **no concept of adoption** in the sense of creating a full parent-child relationship — the nearest concept is **kafala** (fostering/guardianship). However, after the **Juvenile Justice Act, 2015**, Muslims (and persons of all religions) can legally adopt children through the CARA process. The Supreme Court in **Shabnam Hashmi v. Union of India (2014) 4 SCC 1** held that the JJ Act provisions on adoption are **secular and apply to all citizens** regardless of religion, and that any Indian citizen can adopt a child under the JJ Act irrespective of their personal law.

Can an adoption be cancelled or revoked?

Under the **Hindu Adoptions and Maintenance Act**, a valid adoption is **irrevocable** — once legally completed, neither the adoptive parents nor the biological parents can cancel it (Section 15). Under the JJ Act, 2015, an adoption order issued by the District Court can be set aside only if it is found to have been obtained by **fraud, misrepresentation, or violation of the Act**. In essence, adoption is designed to be permanent, and revocation is permitted only in exceptional circumstances to protect the child's interests.

What is the difference between adoption and guardianship?

**Adoption** creates a **permanent parent-child relationship** — the child becomes the legal child of the adoptive parent with full inheritance rights, and ties with the biological parents are severed. **Guardianship** under the Guardians and Wards Act, 1890 grants a person the right to care for a child, but does **not create a parent-child relationship** — the child does not inherit from the guardian, the biological parents retain their legal status, and guardianship automatically ends when the child turns 18. Adoption is irrevocable; guardianship is temporary and supervisory.

Can a step-parent adopt their spouse's child?

Yes. Under HAMA, a Hindu step-parent can adopt their spouse's child with the consent of the biological parent (the spouse). Under the JJ Act, step-parent adoption is also possible through the CARA process, requiring a court order. In both cases, the adoption must be in the **best interest of the child**, and the court scrutinises the circumstances before granting the adoption order.