Adoption and Indian Society

Adoption provides a very important function in Indian society. India has long tradition of child adoption. In older days, it was restricted within the family and was covered by social and religious practices. But with the changing times, adoption beyond the contour of family has been institutionalized and legalized.

Adoption is the institutionalized practice through which an individual belonging by birth to one kinship group acquires new kinship ties that are socially and legally defines as equivalent to the congenital ties. These new ties supersede the old ones either wholly or in part. [1]

To protect abandoned and destitute children, goal is to find a family for as many orphan children as possible and to safeguard their interest as visualized in the UN Convention on child rights and Hague Convention on Inter country adoption ratified by India government. One of the motivations to adopt a child could be a desire to give a home to a child who needs one, wanting a child of the other gender, or for the welfare of the destitute and abandon child. [2]

The dictionary meaning of the term ‘adoption’ is the act of taking and rearing of the child of other’s parents as one’s own child. Attitudes and laws regarding adoption vary greatly. Not all cultures have the concept of adoption. One of the biggest examples is

Adoption is permitted amongst Hindus under statute. The fact that adoption means legal affiliation of a child, it is subject of personal law. The attempt to bring in the concept of secular adoption has gone into vain several times. Article 44 of the Constitution declares that ‘The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.’ In the year 1972, the Adoption of Children Bill was not approved as the Muslims opposed it. Then again in year 1980 a similar attempt was made to bring in all communities under one regulatory body except the Muslims that too was opposed.

The enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 is definitely a significant effort of the legislature towards recognition of adoption of orphan, abandoned and surrendered children by people irrespective of their religious status. This has been a major leap forward.

This paper deals with a comparative study of adoption under Hindu law and Muslim law and various other aspects relating to adoption.

To expand a family, adoption is the most basic reason that stimulates the desire in individuals to adopt a child provided that parents cannot bear a child owing to some reasons. Most common requirement in order to adopt a child is that a person should be a major and of sound mind. In order to adopt a child under Guardianship and Wards Act, 1890, guardian who is appointed to a child, the age of majority is 21 years.

Position Under Hindu Law

Hindus are allowed to legally adopt a child. Other communities could only act as legal guardians of the children. Under Shastric Hindu Law, two main aim of adoption are as follows:

This aim is religious i.e. to obtain a son who will take part in the funeral ceremonies of the father.

This aim is secular i.e. to carry out family’s name

It was believed that a person who died without leaving a son behind would go to hell. Hence, this was a reason to adopt a son.

Under Shastric Hindu Law only a male child can be adopted and has to be from the same caste as his adoptive parents. In India, now several changes to the law regarding adoption have been made under the Hindu Adoption and Maintenance Act, 1956. The most important changes that this act brought are that it reduced the aim of adoption to secular only and also gave women equal rights to a man i.e. now, under this act both boys and girls may be adopted. The problem of having same caste has also been eradicated by this act.

Adoption became a recognized custom in the Hindu law after the establishment of Hindu Adoption and Maintenance Act (HAMA), 1956. The act reflects, to an extent, the principles of equality and social justice by removing several genders based discriminatory provisions. [3] Earlier only male Hindus had the right to adopt or to give in adoption. But now it has been recognized that even Hindu women can also adopt or give in adoption. A Hindu male can adopt a child even if he is a bachelor, divorcee or married. In case of married one he must have the consent of his wife while adopting. For a Hindu male adopting a female child, there has to be an age gap of at least 21 years. [4] Also, an unmarried or widow Hindu female can adopt a child but a married woman has no capacity to adopt a child. She cannot do so even with the husband’s consent. For a married woman, in order to adopt, the adoption must be done by her husband.

Position Under Muslim Law

Under Muslim law adoption is not recognized. Muslims have no adoption law and thereby have to approach a court under Guardianship and Wards Act, 1890. When a Muslim adopts a child under this act, it is considered to taken under foster care under the act. Before the Shariat Act, 1937, adoption among Muslim was recognized by custom. Under the Oudh Act, 1869, Section 29, a Muslim talukadar was permitted to adopt. [5]

The Need for a Uniform Civil Code

In India, the only statute that governs adoption in its true sense is the Hindu Adoption and Maintenance Act, 1956. Some consider it to be religiously biased because of the fact that only Hindus can adopt. In fact there are a numerous number of loopholes in this statute. Act has little regard for the interests and welfare of the child, since there is no provision to investigate and look into the suitability and antecedents of the family seeking to adopt; nor any follow-up to ascertain how the child is being treated. [6]