“The nation’s children are a supremely important asset. Their nurture and solicitude are our responsibility. Children’s programmes should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skills and motivations needed by society. Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our larger purpose of reducing inequality and ensuring social justice”
– [National Policy for Welfare of Children in India]
By Shobha Gupta
The recent order of the Hon’ble Supreme Court of India in the matter of Kripal Amrik Singh & Anr. Vs. State of Maharashtra & Ors., wherein by placing reliance upon Anokha (Smt.) vs. State of Rajasthan [(2004) 1 SCC 382], it was contended that the adoption under a personal law will not be governed by guidelines in Lakshmikant Pandey Vs. Union of India [(1984) 2 SCC 244] and wherein the Supreme Court while agreeing to consider this issue directed the custody of the child to be given to the prospective adoptive parents as an interim arrangement, has once again opened up the debate on the entire gamut and ambit of adoption laws in India.
To deal with the issue with clarity on all the existing legal frameworks of adoption in India, it would be appropriate to examine the adoption laws of the country with the historical background and the extent of their applicability in the cases of adoptions.
Guardians and Wards Act, 1890
Apart from the personal laws of adoption, be it Kafala under Muslim personal law or adoption under Hindu personal law, the first ever legislative enactment dealing with guardianship and sponsorship of children upto the age of 18 years was dealt with under the Guardians and Wards Act, 1890. Under this Act, a person desirous to be guardian of a minor, or any relative, or friend of the minor, or the Collector of the District or the local area within which the minor ordinarily resides or the property of the minor is situated, may make an application to the district court having jurisdiction, to be declared as Guardian of the minor for his/her person or for his/her property.
The format of the application is prescribed in Section 10 of the Act and the procedure to be followed has been defined in Section 11 of the Act. Section 15 allows two or more joint guardians of the person or the property of the minor or separate guardians for the property and person of the minor or for different properties of the minor. While appointing a guardian, the court is required under section 17 to have regard to the welfare, age, sex and religion of the minor and character, capacity of the proposed guardian and his nearness to the kin of the minor.
In case property(s) of a minor is under superintendence of a Court of Wards, then the court concerned cannot appoint a guardian for the property of a minor (S.19). Similarly, the court cannot appoint a guardian for property or person of a minor who is a married female and her husband is not unfit to be guardian of her person in the opinion of the Court or if father or mother of a minor (other than a married minor) is unfit to be guardian of the person of the minor in the opinion of the court (S.19). The guardian appointed under this Act is entitled for remuneration if so desired (S. 22).
The guardian so appointed must look to support the minor, his/her health, education and all other welfare measures. The guardian cannot create a third party right in the property of the minor without prior permission of the court (S. 29) and can be removed by the court (S. 39) if he is found abusing the trust or fails in performing his duties or incapable to perform his duties, ill treatment, etc. The guardian, if desires to resign, can apply to the court to be discharged (S. 40) and he ceases to be the guardian by his death, removal or recharge or if the ward ceases to be minor i.e. attains the age of 18 years. The competent court by its order regulates the powers of a guardian.
Thus it is clear from a bare reading of Guardians and Wards Act, 1890, that this Act only allows a guardian to be appointed for a minor for his/her person or property till attainment of majority (18 years) by the said minor and that this association ceases once the minor becomes major and it is not a life long association as parents and children. Thus the Guardians and Wards Act, 1890, cannot be taken as a legislative source for adoption of a child. It only permits association of care for the minor for a limited period and to a certain age. This is a secular law invocable by all citizens irrespective of their religion.
Hindu Adoption and Maintenance Act, 1956
The Hindu Adoption and Maintenance Act, 1956, became applicable from 21st December, 1956, and it applies to all Hindus and not to Muslims, Christrians, Parsis or Jews not governed by Hindu laws, custom or usage. Apart from the custom or usage of Hindus, this was the first ever enactment providing a solution to Hindus, Buddhists, Jainas or Sikhs or any person governed by Hindu law, custom or usage.This Act allows a child to be given in adoption by a person to a person, who all should be either Hindu or Buddhist or Jaina or Sikh. It is not a secular Act universally applicable to all citizens of India. This Act has overriding effect on any other law, custom, usage in force before the commencement of this Act in respect to the adoptions covered under this Act and it clearly mandates that no adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Act and that any adoption made in contravention of the provisions of this Act shall be void (S. 5). It further says that void adoption shall neither create any rights in favour of the adopted child in the adoptive family nor it destroy the rights of any person in the family of his or her birth (section 5).
Section 7 & 8 of the Act allows a Hindu male to adopt a son or daughter irrespective of his marital status, while a Hindu female can adopt only if she is either not married or her marriage is dissolved or has widowed or her husband has renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Section 9 of the HAMA 1956 provides that a Hindu child can be given in adoption by his/her father or mother or in case both the father and mother are dead or have renounced the world or have ceased to be Hindu or have been declared of unsound mind by a court, then by the guardian of the child with the previous permission of the court to any person including the guardian himself. Explanation (i-a) of Section 9 defines guardian to mean a person having the care of the person of a child or of both his person and property and includes a guardian appointed by will of the child’s father or mother; and a guardian appointed or declared by a court; and “court” means the City or Civil Court or a District Court within the local limits or whose jurisdiction the child to be adopted ordinarily resides.
Section 11 particularly requires that a son can be taken into adoption by the prospective adoptive parent(s) only if they do not have a living son or a son’s son or a son’s son’s son. Similarly a daughter can be taken in adoption by the prospective adoptive parent(s) only if they do not have a living daughter, or son’s daughter. In case of adoption of the opposite gender, the minimum age difference requirement is 21 years between the adoptive parent and child. A child only upto the age of fifteen years is adoptable under this Act.
A child adopted under this Act shall be deemed to be child of the adoptive parents from the date of adoption for all purposes and all ties of the said child with the family of his/her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family, but the said child cannot marry any person in prohibited relationship in the family of his/her birth. Any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth. The adopted child shall not divest any person of any estate which vested in him or her before the adoption (S. 12).
Adoption does not deprive the adoptive parent(s) of the power to dispose of their property by transfer inter vivos or by will unless otherwise agreed upon (Section 13). A valid adoption cannot be canceled nor can the adopted child renounce his or her status as such and return to the family of his or her birth (Section 15). Adoption by taking or giving money is an offence under Section 17 punishable with imprisonment which may extend to six months, or with fine, or with both. This Act thus enables adoption by a Hindu, of a Hindu, from a Hindu by an act of actual giving and taking in of the child upto the age of 15 years by way of executing a deed of adoption (registered or un-registered) between the two families (persons) without any intervention of court. Thus for the adoptions taking place under this Act, there is no regulation of checks and balances by any independent agency except the wisdom or desire of biological parent(s).
For the purpose of Hindu Adoption and Maintenance Act guardian has been defined under Section 9 explanation – ” means a person having the care of the person of a child or of both his person and property and includes a guardian by will or by order of court”, which necessarily means an order passed by a competent court under the Guardians and Wards Act, 1890. That means even a guardian appointed under the Guardians and Wards Act, with previous permission of the Court, can give a child in adoption under the Hindu Adoption and Maintenance Act.
Hindu Minority and Guardianship Act, 1956
This Act came into force with effect from 25th August, 1956, applicable to Hindus, Sikhs, Buddhists and Jainas (to not a Muslim, Christian, Parsi and Jew). This Act also has an overriding effect on the laws in force before the commencement of this Act. A person upto the age of 18 years is defined as minor in this Act. Section 4(b) defines guardian to be a person having the care of the person or property or both of a minor which may include the natural guardian or a guardian appointed by the Will of minor’s father or mother or a guardian appointed or declared by a court or a person empowered to act as such by or under any enactment relating to any court of wards.
The biological father and mother are defined as a ‘natural guardian’ of a Hindu minor and the natural guardianship of a minor passes on to the adoptive parent(s) in case of adoption. The natural guardian cannot create a third party right in the property of minors without prior permission of the Court by making an application under Section 29 of the Guardians and Wards Act, 1890, before the City Civil Court or the District Court having jurisdiction. Under Section 9 of the Act, a guardian appointed by the natural guardian for the minors’ person or property or both, shall have all the rights of a natural guardian after death of minors natural guardian(s). No guardian can be appointed for undivided joint Hindu family property of a minor. Thus this Act also has limited scope and jurisdiction and does not deal with adoption of a child in particular.
Lakshmi Kant Pandey vs. Union of India, [(1984) 2 SCC 244]
The Hon’ble Supreme Court’s attention was craved by a letter petition to lay down guidelines on inter-country adoptions of abandoned, surrendered or orphaned children for want of any existing law governing such adoptions. The Supreme Court in para 11 of the judgment clearly observed that it is not dealing with adoption of children living with their biological parents, for in such class of cases, the biological parents would be the best persons to decide whether to give their child in adoption to foreign parents or not.
It is only in those cases where the children sought to be taken in adoption are destitute or abandoned and are living in social or child welfare centres, it is necessary to consider what normative and procedural safeguards should be forged for protecting their interest and promoting their welfare. Though in para 14 of the judgment, the Supreme Court deals with the safeguards which are required to be provided in so far as biological parents are concerned, that they should be properly assisted in making a decision about relinquishing the child for adoption, by the institution or center or home for childcare, or social or child welfare agency to which the child is being surrendered.
The court proceeded to lay down detailed guidelines to be followed for all inter-country adoptions. These guidelines were amended from time to time by the Supreme Court in this matter while addressing various concerns. Thus, though the Court had said at para 11 that it is not dealing with adoption of children living with biological parents but it ended up in laying down safeguards for those children also whose biological parents decide to relinquish their child for the purpose of adoption. These guidelines laid down by the Supreme Court continued to govern inter-country adoptions till the legislative enactment or framing of proper rules, regulations or guidelines in this field.
The Juvenile Justice Act, 1986
The JJ Act 1986 was promulgated with effect from 1st December, 1986, but it only deals with children in conflict with law and had no reference regarding any measures for children in need of care and protection other than the children in conflict with law and it had no chapter on adoption.
The Juvenile Justice (Care And Protection Of Children) Act, 2000
The Juvenile Justice Act, 2000 was a broader Act bearing in mind- the constitutional mandate enshrined in clauses (e) and (f) of Article 39 and Articles 45 & 47, which imposes on the State a primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected;Convention on the Rights of the Child adopted by the General Assembly of the United Nations on the 20th November, 1989 (ratified by the Government of India on 11th December, 1992), which requires all State parties to secure the best interests of children; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), and all other relevant international instruments.
The 2000 Act, in Chapter 4 (S. 40-42) under the heading “Rehabilitation and Social Reintegration” deals with adoption as one of the measures for rehabilitation and social integration of children who are orphaned, abandoned, neglected and abused through institutional and non-institutional methods. Section 41(3) refers to various guidelines for adoption issued from time to time by the State Government to be adhered to by the Juvenile Justice Board to give in any child for adoption. By the 2006 Amendment, definition of adoption was incorporated in the 2000 Act and Section 41 was also amended to incorporate the guidelines issued by Central Adoption Resource Agency (CARA) and notified by the Central Government. Person upto the age of 18 years of age is defined as child or juvenile who may fall within the scope of the Act and eligible to be given in adoption.
The 2007 Rules (Juvenile Justice (Care and Protection of Children) Rules 2007) prescribed the procedure to be followed by the Child Welfare Committee and the Juvenile Justice Board to rehabilitate a child in need of care and protection by way of adoption and/or pre-adoption foster care. Rule 33 states that the primary aim of adoption is to provide a child who cannot be cared for by his biological parents with a permanent substitute family.
It is clear from S. 41 read with Rule 33 that the orphaned, abandoned and surrendered children are only covered under this Act for the purpose of adoption. If the biological parent (both or either)/ guardian is/are incapable of taking care of the child and desires to give the child in adoption, in that case, the living parent(s)/guardian would be required to surrender the child by way of executing a surrender deed before the Child Welfare Committee. Thus, clearly this Act does not deal with the children to be given in adoption by the biological parents/ guardian if the child is living with them, unless they surrender the child.
Smt. Anokha vs. State of Rajasthan & Ors. [(2004) 1 SCC 382]
It was a case where an Italian couple desired to adopt Baby Alka. The Italian couple had come to India on a tour, and were frequent tourists as a couple or alone for the past twenty years. They used Sumer Singh’s taxi to tour the country. Sumer Singh passed away in an accident after dropping the Italian nationals to their destination. Sumer Singh and Anokha had six children, five of them were girls. After Sumer Singh’s death the Italian nationals wanted to adopt one of the girls, i.e. baby Alka, to which Smt. Anokha agreed and accordingly an application was filed by the Italian couple in the District Court, Alwar, under Section 7, 10 and 17 of the Guardians and Wards Act, 1890.
The Social Welfare Department though gave a report supporting the child to be given in adoption to the Italian couple, but the District Judge however was of the view that since the adoption was sought to be effected by a foreign couple, the Guidelines prescribed for ‘Adoption of Indian Children’ issued by the Ministry of Welfare, Government of India (referred to hereafter as ‘the Guidelines’) would have to be followed. The Guidelines require that the child must be sponsored by a Social or Child Welfare Agency recognized or licensed by the Government of the country in which the foreigner is the resident. It was, therefore, held that unless an authorised agency in Italy submitted an enquiry report and a ‘No Objection Certificate’ was issued by the Ministry of Welfare, Government of India, no application for appointment of foreigners as guardians could be presented to the Court.
The District Judge held that the Guidelines would apply irrespective of whether the child’s biological parents were alive or not. The High Court was also of the view that the guidelines would apply in this case. The matter reached the Supreme Court wherein the Hon’ble Supreme Court held that the guidelines issued by Ministry of Welfare, Government of India, for adoption of Indian children by formulating various directives of the Hon’ble Supreme Court in Lakshmi Kant Pandey vs. Union of India [(1984) 2 SCC 244] and the follow- up orders in the said case, are only applicable in respect to adoption of children who are orphaned, abandoned, surrendered or sought to be relinquished and does not apply to the children living with their biological parents and sought to be given in adoption by the biological parents to somebody known to them. The court further observes that in such cases the court has to deal with the application under Section 7 of Guardians and Wards Act, 1890 and dispose of the same by considering welfare of the child.
As discussed above in this article that the Guardians and Wards Act, 1890 does not deal with adoption at all and rather it creates a limited relationship of care and protection and welfare of the ward till he or she attains majority and such guardianship ceases on death of the guardian or on his discharge or removal by the court. Thus, clearly an appointment of a guardian under the Guardians and Wards Act cannot tantamount to an adoption under the adoption law, and therefore, reference to the Guardians and Wards Act alone may not provide any solution and for want of any other procedure of checks and balances for inter-country adoptions. It would have been appropriate that the guidelines formulated in view of directions of Supreme Court in Lakshmi Kant Pandey, are read and followed in cases of adoption by biological parents and guardians as well.
Guidelines Governing the Adoption of Children, 2011
In pursuance of the powers by sub-section (3) of section 41 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and in super-session of the Guidelines for In-country Adoption, 2004 and the Guidelines for Adoption from India, 2006, the Central Government notified the Guidelines issued by the Central Adoption Resource Authority to provide for the regulation of adoption of orphaned, abandoned or surrendered children.
Clause 4 of the Guidelines clearly provides that any orphan, abandoned or surrendered child can be adopted if such child is declared legally free for adoption by the Child Welfare Committee. Thus, clearly these Guidelines are applicable only in case of adoption of a child who have been orphaned, abandoned or surrendered.
The Hague Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Inter-country Adoption
The Hague Convention of 29th May 1993 on Protection of Children and Cooperation in Respect of Inter-country Adoption, to which India is signatory, sets up minimum standards for inter-country adoptions, irrespective of the category of children as to whether they are abandoned or surrendered of living with their biological parents. The Objectives and scope of the Convention are defined in article which includes (a) to establish safeguards to ensure that inter-country adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law; (b) to establish a system of cooperation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children; and (c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention.
Thus two things are absolutely clear that the Convention, therefore, clearly puts the rights of children first in all inter-country adoptions and it requires minimum standard to be put in place for all inter-country adoptions.
The Juvenile Justice (Care And Protection Of Children) Act, 2015
The Juvenile Justice (Care and Protection of Children) Act, 2000 was re-enacted to make comprehensive provisions for children alleged and found to be in conflict with law and children in need of care and protection, taking into consideration the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (1993), and other related international instruments.
Clause 12 of Section 2 defines a ‘child’ as a person who has not completed eighteen years of age. Clause 14 defines “child in need of care and protection”, which includes the child who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child; or who does not have parents and no one is willing to take care of him/ her, or whose parents have abandoned or surrendered him/her. It is clear from the definition clause that the children living with their biological parents/ guardians are covered under this definition provided the parents/ guardians are found unfit or incapacitated to take care and protect the safety of the well being of the child.
As per Section 31, any child in need of care and protection may be produced before the Child Welfare Committee constituted under Section 27 of the Act, by any police officer or special juvenile police unit or a designated Child Welfare Police Officer or any officer of District Child Protection Unit or inspector appointed under any labour law for the time being in force; or any public servant; or any Childline Services or any voluntary or non-governmental organisation or any agency as may be recognised by the State Government; or any Child Welfare Officer or probation officer; or any social worker or a public spirited citizen; or by the child himself; or any nurse, doctor or management of a nursing home, hospital or maternity home, provided that the child shall be produced before the Committee without any loss of time but within a period of twenty-four hours excluding the time necessary for the journey.
Section 35 enables a parent or guardian, who for physical, emotional and social factors beyond their control, wishes to surrender a child, to surrender their child after due inquiry. If the Child Welfare Committee finds after conducting proper inquiry and keeping in prime consideration of welfare of the child brought to the CWC, that the child is either an orphan having no one to take care, or abandoned, or surrendered by parents, and two months period is over, then the CWC shall declare the child legally free for adoption. Adoption is considered the best mode for rehabilitation and social reintegration of such children in need of care and protection.
Section 56(1) of the 2015 Act clearly mandates that all adoptions shall be resorted to for ensuring right to family for the orphan, abandoned and surrendered children, as per the provisions of this Act, the rules made thereunder and the adoption regulations framed by the Authority. Subsection (2) provides that adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the provisions of this Act and the adoption regulations framed by the Authority. Subsection (3) provides that nothing in the 2015 Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act, 1956, but all inter-country adoptions can only be done as per the provisions of the 2015 Act and the adoption regulations framed by the Authority (S. 56(4)). Adoptions in violation of the same are punishable as per the provisions of section 80 of the Act with imprisonment of either description for a term which may extend upto three years, or with fine of one lakh rupees, or with both.
2015 Act further provides that all adoptions shall be routed through the Central Adoption Resource Agency (CARA) created under 68 of the 2015 Act. Section 58 requires that Indian prospective adoptive parents living in India, irrespective of their religion, may apply for the same to a Specialised Adoption Agency, which shall upon finding them eligible, refer a child declared legally free for adoption to them along with the child study report and medical report of the child, in the manner as provided in the adoption regulations framed by the Authority. On the receipt of the acceptance of the child from the prospective adoptive parents along with the child study report and medical report of the child signed by such parents, the Specialised Adoption Agency shall give the child in pre-adoption foster care and file an application in the court for obtaining the adoption order and on the receipt of a certified copy of the court order, the Specialised Adoption Agency shall send immediately the same to the prospective adoptive parents.
Adoption creates all the rights in the adopted child and the adoptive parents as if the child had been born to the adoptive parents, for all purposes, including intestacy, with effect from the date on which the adoption order takes effect, and from such date all the ties of the child in the family of his or her birth stands severed and replaced by those created by the adoption order in the adoptive family, but any property vested in the adopted child and the obligations attached, if any, to maintain the relatives in the biological family, with before the date of adoption, shall continue to vest in the adopted child (Section 63).
Kirpal Amrik Singh & Anr. vs. State of Maharashtra & Anr.
In this case the biological Hindu mother gave for adoption her 2 year old girl child to a couple by executing a notarised document without complying with the procedure laid down in the Juvenile Justice (Care and Protection) Act, 2015. Both the Trial Court and the High Court held that the mother had taken money from the prospective parents. High Court also noted that it is before the High Court a stand was taken for the first time as an afterthought that it was an adoption under the Hindu Adoption and Maintenance Act, 1956 and thus the procedure laid down in the Juvenile Justice (Care and Protection) Act, 2015 is not applicable. The High Court thus denied custody of the child to be given to the prospective parents and directed to keep the child to the Child Welfare Committee. The Supreme Court while taking note of the view taken in Anokha (Smt.) V/s State of Rajasthan (supra), agreed to examine the issue as to whether the procedure laid down in JJ Act would apply to the adoptions by the biological parents, and as an interim measure directed custody of the child to be given to the prospective Parents.
The view taken by the Supreme Court in this case as an interim measure and the reporting of this case by legal portals and news papers, has given birth to a whole lot of confusion to an almost settled issue. It is thus necessary to re-assert here the existing legal framework for a valid adoption:
- Juvenile Justice (Care and Protection) Act, 2015 is a secular and existing law on adoption, applicable on all religion.
- For all inter-country adoptions, procedure laid down in Juvenile Justice (Care and Protection) Act, 2015, has to be followed. Inter-country Adoption otherwise than JJ Act 2015 is illegal and constitutes a punishable offence under section 80 of the Act.
- All inter-country adoptions needs to be routed through CARA only. Thus, post 2015, the view taken by the Supreme Court in Anokha (Smt.) V/s State of Rajasthan (2004 (1) SCC 382), would no more be a correct view or approach for inter-country adoptions.
- It is clear from sub-section 2 & 3 of section 56 of the JJ Act, 2015 that a Hindu child by a Hindu parent can be given to a Hindu by simply executing an adoption deed and by actually handing out the child to the adoptive parent, while a Hindu guardian can give a Hindu child in adoption to another Hindu under order of civil court. Thus, such adoptions shall not invite any punishment and shall be legal even in the JJ Act.
- Such Hindu parent/ Guardian though in alternative can give their child for adoption under the JJ Act 2015 through CARA. These adoptions are free from the checks and balances of JJ Act, 2015 and Adoption Regulations thereunder and gives a complete free hand to the biological parent(s). Though the mandate of section 5 of the Hindu Adoption and Maintenance Act, 1956, requiring all Hindu adoptions to be done under the said Act else void, runs counter to sub-section 2 of section 56 of the JJ Act, 2015.
There is no dearth of cases where the parents short of means have sold their child for money and adoption for all practical purposes in such cases just becomes a tool. In such adoptions, child’s interest may not necessarily be the paramount consideration either for the biological parent or for the adoptive parents. To avoid subjection of a child to such risk, it is thus necessary that all adoptions must be subjected to some regulation, inquiry and follow-up.
If the child’s interest has to be kept as the paramount consideration, then all the adoptions, irrespective of religion of the biological parents or the guardian or the child or the adoptive parents, shall be governed by some regulation, checks and balances, to ensure that there is no room for any abuse to the child in any manner in the name of adoption. There should be one ‘Common/ Central Law of Adoption for Indian Children’ irrespective of their religion.
(The writer is an advocate practicing at the Supreme Court of India)