Adoption

What is the legal position in relation to adoption? Is adoption available to individuals and cohabiting couples (both heterosexual and same-sex)?

An adopted child, once all the legal formalities are satisfied, acquires the same rights as a biological child.

Since a large number of Indian children are available for adoption, a number of foreign countries started looking at India for adoption. The Guardian and Wards Act 1890 is a statute which protects the rights and interests of children, but this does not provide for adoption. This legislation provides that a person can become a guardian of a child, which for all purposes is akin to adoption, but not a parent. Adoption is also governed by the personal law of the parties.

Adoption of orphaned, abandoned and surrendered children in India is governed by a set of guidelines notified by the Government of India. The Central Adoption Resource Authority (CARA) is an autonomous body under the Ministry of Women & Child Development, Government of India. It functions as the nodal body for the adoption of Indian children and is mandated to monitor and regulate in-country and inter-country adoptions. CARA is designated as the Central Authority to deal with inter-country adoptions in accordance with the provisions of the HCCH Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 (Hague Adoption Convention), ratified by the Government of India in 2003.
It primarily deals with the adoption of orphaned, abandoned and surrendered children through its associated/recognised adoption agencies.

By means of a progressive judgment by the Supreme Court, judicial guidelines were laid down in Lakshmi Kant Pandey v Union of India (UOI) 1985 Supp SCC 701, under which foreign persons could become guardians of Indian children and adopt them in accordance with the laws of their home country.

Lakshmi Kant Pandey’s judgment provided that a Central Adoption Resource Agency (CARA) be set up by the Government of India with regional branches at a few centres which are active in inter-country adoptions. Every social or child welfare agency, taking children under its care could be required to send to the CARA the names and particulars of children under its care available for adoption, and the names and particulars of such children should be entered in a register to be maintained by the CARA for adoption.

In Lakshmi Kant Pandey v UOI (2012) 12 SCC 735, a writ petition was filed setting out the difficulties faced by adoptive parents coming from abroad and it was highlighted that many Indian courts were not accepting documents executed and authenticated abroad, with the result that the adoption of children by foreign parents was being delayed. The Supreme Court allowed the application and:

• Directed the courts of competent jurisdiction dealing with adoption/guardianship cases to accept documents authenticated by officers competent to issue certification by apostille in the country of their execution, as provided and covenanted in the Hague Apostille Convention.
• Directed the court of competent jurisdiction to hear and dispose of cases in accordance with the time frame fixed in Lakshmi Kant Pandey v Union of India 1985 Supp SCC 701.

In S Banu v Raghupathy HCP No 1139/2006, the Madras High Court held that in cases of complaints, the District Social Welfare Officer should hold a public hearing into complaints and conduct an enquiry.

In cases of questionable documents relating to adoption, the District Social Welfare Officer should direct the parties to approach the police, if needed, to seek assistance from the Legal Services Authority of the concerned District.

The Madras High Court also observed that when a prima facie case is made out raising doubts as to genuineness of adoption and documents, the District Social Welfare Officer must refer the matter to the police for investigation.

In Stephanie Joan Becker v State and others (2013) 12 SCC 786, the Supreme Court restated the principles established in Lakshmi Kant Pandey v Union of India and also said that the 2006 and 2011 guidelines for adoption from India must be adhered to. The Apex Court also observed that if the adoption is in the best interest of the child it should be allowed without any hindrance.

In Craig Allen Coates v State and another 2010 (8) SCC 794 it was held that for inter-country adoptions the procedure followed could include a reference to an expert committee on the lines constituted in the present case, to ensure that inter-country adoptions are allowed only after full and proper satisfaction is recorded by all the agencies (including a committee of experts wherever reference to such a committee is considered necessary).

Until very recently, there was a prohibition under the personal laws to adopt two children of the same sex. In addition, the Guardian and Wards Act was badly lacking, particularly in relation to delinquent, juvenile or “juvenile in conflict with law” children. A “juvenile” means a person who has not completed his/her 18th year and “juvenile in conflict with law” means a juvenile who is alleged to have committed an offence (Juvenile Justice (Care and Protection of Children) Act 2000 (JJ Act)).

While the Juvenile Justice Act 1986 dealt with the care and protection of juveniles, it did not deal with adoption. This gap was filled by the enactment of the JJ Act, which contains specific provisions for adoption as one of the ways for rehabilitation and social reintegration of juveniles in conflict with the law.

The Juvenile Justice Act, being secular in nature, supersedes the Hindu Adoptions and Maintenance Act 1956, and does not impose restrictions on the number of adopted children from the same gender.

The Bombay High Court in In Re: Adoption of Payal @ Sharinee Vinay Pathak and his wife Sonika Sahay @ Pathak 2010(1) Bom CR 434 held that when the child to be adopted is orphaned, abandoned or surrendered, or a child in need of care and protection as defined in Juvenile Justice Act, the bar imposed by sections 11(i) and (ii) of the Hindu Adoption and Maintenance Act does not bar adopting a child of same gender after having a biological child of that gender.