Children are the ultimate blessing of God who bring hope, prosperity and happiness in a house. Sometimes, a couple may not be able to conceive naturally due to medical reasons, or someone may not be willing to marry someone but have a family of their own. In such cases, adoption may seem the best solution. It also allows helpless children to start a new life. Know the legal aspects around the process to adopt a child in India.
How to Adopt a Child in India?
Adoption can be understood as the concept of permanent separation of a child from biological parents and becoming a lawful child of prospective adoptive parents with all the rights and responsibilities as a biological child. Adoption is a subject of family laws in India and there are certain legislations governing the concept. Adoptive parents, whether single or married, have to show their interest for adoption and comply with a certain legal process in order to adopt a child. The process to adopt a child in India has been explained below.
What are the Adoption Laws in India?
Had the Article 44 of the Constitution of India been implemented, the Uniform code for adoption in India would have been a reality. However, the matter still remains in debates and religious laws govern the civil lives of people in India. Another aspect of civil laws is the child adoption law in India which is again a subject of personal laws. Hindus have had the concept of adoption through ‘Dattak putra’ since ages. But in Muslims, Christians, Parsis, etc., adoption is not a valid approach. For them, secular laws have the say to adopt a child in India. Below are the legislations that lay the rules and regulations for adopting a child in India:
- Hindu Adoption and Maintenance Act, 1956
- Juvenile Justice (Care & Protection of Children) Act, 2015
- Model JJ Rules, 2016
- Adoption Regulations, 2017
- Guardianship and Wards Act, 1890 (GAWA)
In concern with the rules to adopt a child in India, the Hindu Adoption and Maintenance Act, 1956 lays the requisites for adoption among Hindus. There is no such provision in any other religion. In fact, the Muslim laws prohibit the concept of adoption since an adopted child is not a relative and thus, legally permissible to marry the adoptive parents as well. Hence, in such cases, rather than adoption, guardianship is resorted to. However, it does not give express parental rights to the adoptive parents (called guardians in such cases). In return, just like other wards, children can leave their guardians once they are major, i.e. attain the age of 18 years. In other scenarios, adoption can be made under the provisions of Juvenile Justice Act, 2015.
What is the Procedure to Adopt a Child in India?
There are several stages for adoption in India since it is a family affair involving many lives. There are laws whose compliance has to be verified in order to uphold the rights of everyone involved during the process to adopt a child in India. There are various aspects related to laws for child adoption in India. In country and inter-country adoption, relative and non relative adoption, adoption by step parents, etc. are certain subjects. There are specific provisions for adopting a child in India for NRI, OCI and foreigners as well. The child adoption process varies keeping regard with all such facets.
Adopt a Child in India: In-Country Adoption
- The child must be orphaned/ abandoned or surrendered and has to be legally free for adoption.
- The prospective adoptive parents have to do online registration for child adoption in India Child Adoption Resource Information and Guidance System (CARINGS) and submit the requisite documents.
- As per the preference, children’s profiles are shared with prospective parents which has to be reserved within 48 hours.
- Adoptive parents in India have to approach the Specialised Adoption Agency (SAA) who files an application before the court of jurisdiction.
- The court verifies that the adoption is in accordance with the Section 60 of JJ Act.
- Since the case of adoption in India is not adversarial, there is no opposite party to contest during arguments of SAA in the court of law.
- A certified copy of the adoption order is received by SAA from the court and forwarded to the adoptive parents.
- SAA then applies to the authorities for issuing birth certificates containing names of the adoptive parents and date of birth as per adoption records.
- The child is finally adopted by the prospective parents. The authorities shall prepare follow up reports on six monthly basis for two years. Thus, relocation of adoptive parents also needs to be conveyed to the authorities during this period.
Adopting a Child in India Process for Relatives
Adopting a relative’s child is common in India. What is not common is completing the legal process to adopt a child in India. People belonging to adoptive parents and the biological parents often orally decide regarding adoption and give away the said child. With such a lack of documentation, legal troubles may arise in future. If a childless couple decides to adopt a child in relation, legality has to be satisfied as explained below.
Relatives Who can Adopt a Child in Relation
- A paternal uncle – Father’s brother or brother-in-law, i.e. Chacha, Taya or Phupha.
- A paternal aunt – Father’s sister or sister-in-law, i.e. Bua, Chachi or Tayi.
- A maternal uncle – Mother’s brother or brother-in-law, i.e. Mama or Mausa.
- A maternal aunt – Mother’s sister or sister-in-law, i.e. Mausi and Mami.
- Paternal grandparent – Father’s parents, i.e. Dada or Dadi.
- Maternal grandparent – Mother’s parents, i.e. Nana or Nani.
Relatives of a child have to file an application for adoption under Sections 56 (2) and 60 (1) of the Juvenile Justice Act, 2015 in the competent court. In this case, the Family Court or District Court or City Civil Court of the district where the adoptive child stays with his/ her biological parents is the competent court. The application has to be accompanied with a consent letter of biological parents or permission by CWC (as the case may be) regarding the said adoption. Other documents usually required for adoption as per the Adoption Regulations, 2017 (list provided below) also need to be accompanied with the adoption petition. In case of any kind of confusion regarding the legal procedure involved, consultation with adoption lawyers in India may help attain clarity.
Inter-Country Adoption Among Relatives in India
- The definition of a relative is the same as above for NRIs or OCIs in order to adopt a child in India.
- The concerned adoptive parents have to approach the authorities for preparation of Home Study Report and online registration for child adoption in India at Child Adoption Resource Information and Guidance System (CARINGS).
- The authorities in such a case may be the Authorised Foreign Adoption Agency, or the Central Authority, or Government department, or Indian diplomatic mission (for Indian citizens in another country).
- After the Home Study report, the adoptive parents may be registered on CARINGS and submit requisite documents.
- The authorities through District Child Protection Unit may also conduct a background check of the relative child proposed for adoption and the report will be forwarded to the concerned authorities at the receiving country.
- The adoptive parents have to file an application in the competent court under Section 2 (52) or 60 (1) of JJ Act, 2015 for inter-country relative adoption. The application has to be accompanied with a consent letter of the biological parents of such a child.
- The matter shall be heard before the court keeping regard with the welfare of the child concerned.
- A certified copy of the adoption order has to be collected by the prospective parents and given a copy to the District Child Protection Unit for online submission to the concerned authority.
- No-Objection Certificate in favour of the adoption of the child has to be obtained within 10 days of the adoption order and forwarded to the concerned authorities in the receiving country.
Adopting a Child in India for NRI/ OCI/ Foreigner
In case a Non-Resident India, Overseas Citizen of India or a foreign citizen wants to adopt a child in India, there is no restrictive law. In fact, such citizens are kept at par with the Indian citizens in terms of priority for adopting a child in India who may be orphaned, abandoned or surrendered. The following process has to be followed:
- Adoptive parents living in a country which is a signatory to the Hague Adoption Convention, approach the Authorised Foreign Adoption Agency or the Central Authority.
- In the absence of any such office, one may approach the Government department or Indian diplomatic mission.
- Apply for preparation of Home Study Report and registration under the Child Adoption Resource Information and Guidance System. Submit the requisite documents as well.
- After determining the eligibility and suitability of adoptive parents, the application is forwarded to the Specialised Adoption Agency whereby children who are legally free for adoption are available.
- Profiles of two children shortlisted as per preference shared by adoptive parents will be forwarded to the concerned authority through which application was received. It is henceforth forwarded to the adoptive parents as per local laws.
- Prospective parents have to reserve one of the profiles within 96 hours which is otherwise deemed withdrawn.
- If one of the children’s profiles is reserved, adoptive parents have to sign the Child Study Report and Medical Examination Report of the child within 30 days from the date of such reservation. Parents can also request for a visit to see the child reserved and yet to be accepted for adoption.
- Acceptance of a reserved child has to be done within 30 days through concerned authorities. Otherwise such reservation is also deemed to be withdrawn. The same gets relegated to the bottom of the list and given an opportunity afresh if the Home Study Report remains valid.
- Proceeding the adoption process, Home Study Report is notarised, apostilled by competent authority, obtains a No-objection Certificate (NOC) from concerned authorities and a letter of approval from authorities at the receiving country.
- The child may be given for re-adoption foster care in India for a temporary period after getting the NOC while the court order is awaited.
- As the passport and VISA are issued to the child after issuance of adoption order from competent court, the adoptive parents may receive final custody of the child.
Note – If an Indian citizen or couple wants to adopt a child from foreign nation, the local laws of that country shall apply. Consultation of adoptive parents with family lawyers in the receiving country is advisable in such cases.
Who can Adopt a Child in India?[
- Person who is physically, mentally and emotionally stable, financially capable;
- Person who is not suffering from any kind of life threatening medical condition;
- Married couple who has completed 2 years of stable marriage;
- In case of married couple, where both the spouses consent for adoption;
- A single woman can adopt children of both genders (male and female child);
- A single man can only adopt a male child
- Couples with 3 or more children can not adopt another child unless its about children with special needs/ adoptive parents of relative or step-parent