3. 3
Presently, there are 2 Acts, under which
adoption of children can be undertaken
in India:-
(a) Hindu Adoption Maintenance Act,
1956 (HAMA)
(b) Juvenile Justice (Care & Protection of
Children) Act, 2015 (JJ Act)
(i) Model JJ Rules, 2016 (JJ Rules)
(ii) Adoption Regulations, 2017
4. 4
HAM Act pertains only to Hindus,
Buddhist, Jaina or Sikh wherein a Hindu
parent/guardian can give a child in
adoption to another Hindus, Buddhist,
Jaina or Sikh parent (Sec 2 of HAMA).
Muslim, Christian, Parsi or Jew can not
adopt or give a child in Adoption.
5. 5
The requisites of a valid adoption
under HAMA can be ascertained by
the following :-
Sec 6 of HAMA:- A parent can adopt
a male child, if he does not have
any male child or male grand-child
or can adopt a female child, if he
does not have any female child or
female grand-child.
6. 6
Sec 7 of HAMA: Any male Hindu who is
of sound mind and is not a minor has
the capacity to take a son or a daughter
in adoption.
Sec 8 of HAMA: Any female Hindu who
is of sound mind, who is not a minor,
and who is not married, divorcee or
widow has the capacity to take a son or
daughter in adoption.
7. 7
Section 11 of HAMA provides that if the
adoption is by a male and the person to
be adopted is a female, the adoptive
father is at least twenty-one years older
than the person to be adopted, and if,
the adoption is by a female and the
person to be adopted is a male, the
adoptive mother is at least twenty-one
years older than the person to be
adopted
8. 8
Courts permission to adopt under this HAMA is
required only in the
following cases [Sec 9(4)]:
(a) where both the father and mother are dead;
(b) where both the father and mother have
completely and finally renounced the world;
(c) where both the father and mother have
abandoned the child;
(d) where both the father and mother have been
declared to be of unsound mind by the court
concerned;
(e) where the parentage of the child is not known.
9. 9
In exercise of the powers conferred by clause (c)
of section 68 read with clause (3) of section 2 of
the Juvenile Justice (Care and Protection of
Children) Act, 2015 (2 of 2016), and in
supersession of the Guidelines Governing
Adoption of Children, 2015 published in the
Gazette of India, Extraordinary, Part II, section 3,
sub-section (ii) dated the 17th
July, 2015 vide
notification number S.O. 1945 (E) dated the 17th
July, 2015, except as respects things done or
omitted to be done before such supersession, the
Central Government notified the Adoption
Regulations, framed by the Central Adoption
Resource Authority.
10. 10
Provision relating to Adoption under the JJ
Act,2015:-
Section 56 of the JJ Act, 2015 provides as under:-
(1) Adoption 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.
(2) 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.
(3) Nothing in the JJ Act shall apply to the adoption of
children made under the provisions of the Hindu Adoption
and Maintenance Act, 1956.
11. 11
Section 2 (23) of the JJ Act, 2015 defines
“court” as a civil court, which has
jurisdiction in matters of adoption and
guardianship and may include the
District Court, Family Court and City
Civil Courts;
2(52) “relative”, in relation to a child for
the purpose of adoption under this Act,
means a paternal uncle or aunt, or a
maternal uncle or aunt, or paternal
grandparent or maternal grandparent;
12. 12
As per Section 2 (3) of the JJ
Act, 2015 “adoption
regulations” means the
regulations framed by the
Authority and notified by the
Central Government in
respect of adoption.
13. 13
3. Fundamental principles governing
adoption. - The following fundamental
principles shall govern adoptions of
children from India, namely: -
(a) the child's best interests shall be of
paramount consideration, while
processing any adoption placement;
(b) preference shall be given to place the
child in adoption with Indian citizens, with
due regard to the principle of placement
of the child in his own socio-cultural
environment, as far as possible.
14. 14
4. Child eligible for
adoption. –
Any orphan or abandoned or
surrendered child, declared
legally free for adoption by
the Child Welfare Committee
u/s 38 of the JJ Act, 2015 is
eligible for adoption.
15. 15
(b) a child of a relative defined
under sub-section (52) of section
2 of the Act;
(c) child or children of spouse
from earlier marriage,
surrendered by the biological
parent(s) for adoption by the
step-parent.
16. 16
5. Eligibility criteria for
prospective adoptive parents. –
(1) the prospective adoptive parents
should be physically, mentally and
emotionally stable; financially
capable; motivated to adopt a child;
and should not have any life
threatening medical condition;
(2)any prospective adoptive parent,
irrespective of his marital status and
whether or not he has his own
biological son or daughter, can adopt
a child;
17. 17
(a) the consent of both the
spouses for the adoption shall be
required, in case of a married
couple;
(b) single female is eligible to
adopt a child of any gender;
(c) single male person shall not be
eligible to adopt a girl child;
(e) in case of a couple, the consent
of both spouses shall be required;
18. 18
(3) no child shall be given in
adoption to a couple unless
they have at least two years
of stable marital relationship;
19. 19
(4) the age of prospective adoptive parents
as on the date of registration shall be
counted for deciding the eligibility and the
eligibility of prospective adoptive parents to
apply for children of different age groups
shall be as under: -
If the Age of the child is Upto 4 years,
maximum composite age of prospective
adoptive parents should be 90 years and
maximum age of single prospective
adoptive parent should be 45 years.
20. 20
If the Age of the child is above 4 upto 8
years, maximum composite age of
prospective adoptive parents should be 100
years and maximum age of single
prospective adoptive parent should be 50
years.
If the Age of the child is above 8 upto 18
years, maximum composite age of
prospective adoptive parents should be 110
years and maximum age of single
prospective adoptive parent should be 55
years.
21. 21
(5) In case of couple, the
composite age of the prospective
adoptive parents shall be
counted.
(6) the minimum age difference
between the child and either of
the prospective adoptive parents
should not be less than twenty
five years;
22. 22
(7) The age criteria for prospective
adoptive parents shall not be applicable
in case of relative adoptions and
adoption by step-parent.
(8) Couples with three or more children
shall not be considered for adoption
except in case of special need children
as defined in sub-regulation (21) of
regulation 2, hard to place children as
mentioned in regulation 50 and in case
of relative adoption and adoption by
step-parent.
23. 23
Procedure relating to
orphan or abandoned child
is provided under Para 6
whereas, Procedure
relating to surrendered
child is provided under
Para 7.
24. 24
8. Availability of child for adoption. -
(1) As soon as a child is declared legally free for
adoption by the Child Welfare Committee u/s 38 of
JJ Act, 2015, such child may be allowed to be
given in adoption to a resident Indian or non-
resident Indian parents:
Provided that such child shall be allowed to be
given in inter-country adoption ―
(a) after sixty days, if the child is below five years
of age;
(b) after thirty days, if the child is above five years
of age or is a sibling;
(c) after fifteen days, if the child has any mental
or physical disability.
25. 25
9. Registration and home study of
the prospective adoptive parents. -
(1) Every resident Indian prospective
adoptive parents (PAPs), who intends to
adopt a child, shall register online in
Child Adoption Resource Information
and Guidance System (CARINGS) by
filling up the application form as
provided in Schedule-5 and uploading
the relevant documents.
26. 26
10. Selection of a child by the prospective
adoptive parents:-
(1) The seniority of the prospective adoptive
parents shall be from the date of registration in
the Child Adoption Resource Information and
Guidance System (CARINGS).
11. Pre-adoption foster care. -
The child shall be taken in pre-adoption foster
care by the prospective adoptive parents within
ten days from the date of acceptance, after
signing the pre-adoption foster care undertaking
in the format provided in Schedule-7.
27. 27
12. Legal Procedure. –
(1) The Specialised Adoption Agency shall
file an application in the court concerned,
having jurisdiction over the place where
the Specialised Adoption Agency is
located, with relevant documents in
original as specified in Schedule IX within
ten working days from the date of
matching of the child with the prospective
adoptive parents and in case of inter-
country adoption, from the date of
receiving No Objection Certificate from
the Authority, for obtaining the adoption
order from court.
28. 28
(2) The Specialised Adoption
Agency shall file an
application in the given
format as per Schedule XXVIII
or XXIX, as applicable.
29. 29
(3) In case the child is from a C.C.I. which is
not a Specialised Adoption Agency (SAA)
and is located in another district, the SAA
shall file the application in the court
concerned, in the district where the child or
the SAA is located and in such a case, the
Child Care Institution will be a co-petitioner
along with the SAA Agency and the Child
Care Institution shall render necessary
assistance to the SAA concerned.
30. 30
(4) In case of siblings or twins, the
Specialised Adoption Agency shall file single
application in the court.
(5) Since an adoption case is non-adversarial
in nature, the Specialised Adoption Agency
shall not make any opposite party or
respondent in the adoption application.
31. 31
(6) The court shall hold the adoption
proceeding in-camera and dispose of
the case within a period of two months
from the date of filing of the adoption
application by the Specialised Adoption
Agency, as provided under subsection
(2) of section 61 of the Act.
32. 32
(7) The adoptive parents shall not be asked
in the adoption order to execute any bond or
make investment in the name of the child,
considering the fact that their psycho-social
profile and financial status have already
been ascertained from the Home Study
Report and other supporting documents.
33. 33
(8) The Specialised Adoption Agency shall
obtain a certified copy of the adoption order
from the court and shall forward it to the
prospective adoptive parents within ten
days and it shall also post a copy of the
order and update the relevant entries in the
Child Adoption Resource Information and
Guidance System.
34. 34
(9) Registration of an adoption deed shall not be
mandatory as per the Act.
(10) The Specialised Adoption Agency shall apply to the
birth certificate issuing authority for obtaining the birth
certificate of the child within three working days from the
date of issuance of adoption order, with the name of
adoptive parents as parents, and date of birth as
recorded in the adoption order and the same shall be
issued by the issuing authority within five working days
from the date of receipt of the application.
(11) The Specialised Adoption Agency shall submit an
affidavit to the court while filing a petition as provided in
Schedule XXIII.
35. 35
ADOPTION PROCEDURE FOR NON-
RESIDENT INDIAN, OVERSEAS
CITIZEN OF INDIA AND FOREIGN
PROSPECTIVE ADOPTIVE PARENTS:
14. Non-resident Indian to be treated at
par with resident Indian.-Non-resident
Indian prospective adoptive parents
shall be treated at par with Indians
living in India in terms of priority for
adoption of Indian orphan, abandoned
or surrendered children.
36. 36
17. Legal Procedure. - The same
legal procedure as provided under
para 12 shall be followed for Non-
Resident Indian, Overseas Citizen Of
India And Foreign Prospective
Adoptive Parents
37. 37
21. Adoption procedure in case of
Overseas Citizen of India or foreign
national of Hague Adoption
Convention ratified countries living
in India.-
(1) If one of the prospective adoptive
parents is foreigner and other is an
Indian, such case shall be treated at par
with Indians living in India.
(2) If both the prospective adoptive
parents are foreigner, such case shall
be treated in accordance with the
provisions of regulation 20.
38. 38
22. Procedure for adoption
of a child from a foreign
country by Indian citizens.
(1) Necessary formalities for
adoption of a child from a
foreign country by Indian
citizens shall initially be
completed in that country as
per their law and procedure.
39. 39
36. Birth Certificate issuing Authority. -
The local registrar notified under the
Registration of Births and Deaths Act, 1969
(18 of 1969) shall issue birth certificate
within five working days in favour of an
adopted child on an application filed by the
Specialised Adoption Agency or adoptive
parents, incorporating the names of the
adoptive parents as parents and the date of
birth of the child as mentioned in the
adoption order of the court, in accordance
with circulars issued from time to time by
the Registrar General of India.
40. 40
45. Confidentiality of adoption
records – All agencies or
authorities involved in the adoption
process shall ensure that
confidentiality of adoption records is
maintained, except as permitted
under any other law for the time
being in force and for such purpose,
the adoption court order may not be
displayed in any public portal.
41. 41
46. Adoption fees.-
(1) The prospective adoptive parents shall bear
the expenses for adoption, as prescribed by the
Authority from time to time.
(2) The Specialised Adoption Agency and the
Authority may receive adoption fee from the
prospective adoptive parents and utilise the funds
in accordance with norms prescribed by the
Authority from time to time.
(3) The Specialised Adoption Agency is not
permitted to accept any donation in cash or kind,
directly or indirectly, from the prospective
adoptive parents for adoption of a child.
42. 42
Adoption by Step Parent : -
Step 1:- Permission from the CWC shall be obtained for
Adoption of Child/Children by Biological Parent & Step
Parent as per Schedule XX of the Regulations 2017.
Step 2:- Uploading of Documents of PAPs in Child
Adoption Resource Information and Guidance System
(CARINGS)
Step 3:- Initial approval by Central Adoption Resource
Authority (CARA)
Step 4:- Filing of application & obtaining of Court order
by the PAPs.
43. 43
The biological parent and the step-parent,
who intend to adopt the child or children of
the biological parent, shall file the adoption
application as provided in Schedule XXXII of
Regulations 2017, in the court concerned of
the district where they reside, along with
consent letter of the biological parents and
the step-parent adopting the child or
children, as provided in the Schedule XX of
the Regulations 2017 and all other
documents as provided in Schedule VI of AR
2017 (Para 52 of the Regulations 2017.
44. 44
In case the custody of the child is
under litigation, the adoption
process shall be initiated only after
the finalisation of the case by the
court concerned.
The biological parent and the step-
parent shall file an application in
the Family Court or District Court or
City Civil Court as the case may be.
45. 45
Adoption by Relative:-
The prospective adoptive parents, who
intend to adopt the child of a relative as
defined in Sec 2(52) of the JJ Act, shall
file an application in the competent
Court under Sec 56(2) & 60(1) of the JJ
Act in case of in-country relative
adoption, along with a consent letter of
the biological parents as provided in
Schedule XIX of the Regualations 2017
and all other documents as provided in
Schedule VI of the Regualations.
46. 46
Some important Points:-
Although there is no general law of adoption, yet
it is permitted by a statute amongst Hindus and
by custom amongst a few numerically
insignificant categories of persons. Since adoption
is legal affiliation of a child, it forms the subject
matter of personal law. Before the JJ Act, 2015
came into effect, Muslims, Christians and Parsis
had no adoption laws and have to approach court
under the Guardians and Wards Act, 1890. Before
the JJ Act, 2015 came into effect, Muslims,
Christians and Parsis have been taking a child
under the G & W Act only under foster care.
47. 47
Once a child under foster care becomes
major, he is free to break away all his
connections. Besides, such a child does
not have legal right of inheritance.
Foreigners, who want to adopt Indian
children have to approach the court
under the aforesaid Act. In case the
court has given permission for the child
to be taken out of the country, adoption
according to a foreign law, i.e., law
applicable to guardian takes place
outside the country.
48. 48
The Hindu Adoptions and
Maintenance Act, 1956 and the
Juvenile Justice Act, 2015 must be
harmoniously construed. The Hindu
Adoptions and Maintenance Act,
1956 deals with conditions requisite
for adoption by Hindus. The Juvenile
Justice Act of 2015 is a special
enactment dealing with children in
conflict with law and children in
need of care and protection.
49. 49
Section 4 of the JJ Act, 2015provides that:-
Notwithstanding anything contained in any other
law for the time being in force, the provisions of
this Act shall apply to all matters concerning
children in need of care and protection and
children in conflict with law, including —
(i) apprehension, detention, prosecution,
penalty or imprisonment, rehabilitation and
social re-integration of children in conflict
with law;
(ii) procedures and decisions or orders
relating to rehabilitation, adoption, re-
integration, and restoration of children in
need of care and protection.
50. 50
While enacting the Juvenile Justice Act
2015 the legislature has taken care to
ensure that its provisions are secular
in character and that the benefit of
adoption is not restricted to any
religious or social group.
Bombay High Court in Indian Adoption
Petition No.31 of 2009 With Judge’s
Order No.298 of 2009, in the matter of
adoption of Payal @ Sharinee Vinay
Pathak, Vinay Pathak and his wife
Sonika Sahay @ Pathak
51. 51
The focus of the legislation is on the condition of
the child taken in adoption. The religious
identity of the child or of the parents who
adopt is not a precondition to the applicability
of the law. The law is secular and deals with
conditions of social destitution which cut across
religious identities. The legislature in its wisdom
clarified in sub-section (2) of Section 56 of the JJ
Act, 2015 that the adoption of a child from a
relative by another relative, irrespective of their
religion, can be made as per the provisions of JJ
Act, 2015 and the adoption regulations framed by
the Authority.
52. 52
The Court may allow a child to be
given in adoption to parents to
adopt a child of the same sex
irrespective of the number of living
biological sons or daughters. This
provision is intended to facilitate the
rehabilitation of orphaned,
abandoned or surrendered children.
53. 53
Where the child which is sought to be adopted falls within the
description of an orphaned, abandoned or surrendered child
within the meaning of sub-section (2) of Section 56 or a child
in need of care and protection under Clause (14) of Section 2,
the provisions of the Juvenile Justice (Care and Protection of
Children) Act 2015 must prevail. In such a case the embargo
that is imposed on adopting a child of the same sex by a
Hindu under Clauses (i) and (ii) of Section 11 of the Hindu
Adoptions and Maintenance Act, 1956 must give way to the
salutary provisions made by the Juvenile Justice Act.
54. 54
Section 60 of the JJ Act, 2015 provides that:-
(1) A relative living abroad, who intends to
adopt a child from his relative in India shall
obtain an order from the court and apply for
no objection certificate from Authority, in
the manner as provided in the adoption
regulations framed by the Authority.
55. 55
(2) The Authority shall on receipt of the
order under sub-section (1) and the
application from either the biological parents
or from the adoptive parents, issue no
objection certificate under intimation to the
immigration authority of India and of the
receiving country of the child.
56. 56
(3) The adoptive parents shall, after
receiving no objection certificate under sub-
section (2), receive the child from the
biological parents and shall facilitate the
contact of the adopted child with his siblings
and biological parents from time to time.
57. 57
Where, however, the child is not of a
description falling under the purview of the JJ
Act, a Hindu desirous of adopting a child
continues to be under the embargo imposed
by Clauses (i) and (ii) of Section 11 of the
Act of 1956 (the 1956 Act prohibits a Hindu
from adopting a child when he or she
already has a child of the same gender).
58. 58
Question:-
If there is conflict between the
provisions of the Hindu Adoptions
and Maintenance Act, 1956 and the
Juvenile Justice Act of 2015, which
Act will prevail?
59. 59
If there is a conflict between the provisions of the
Hindu Adoptions and Maintenance Act, 1956 and
the Juvenile Justice Act of 2015, it is the latter Act
which would prevail.
This is on the well settled principle that when
there are two special Acts dealing with the same
subject matter, the legislation which has been
enacted subsequently should prevail. The
Supreme Court applied this principle in the
context of a conflict between the Companies Act
1956 and the Recovery of Debts Due to Banks
and Financial Institutions Act, 1993 in its decision
in Allahabad Bank v. Canara Bank,
MANU/SC/0262/2000 : (2000) 4 SCC 406.
60. 60
Which Court has the jurisdiction to
entertain the question relating to
adoption and maintenance of minor
child?
Ans:- As per Explaination (b) (ii) of
Section 9 of the HAM Act, Court
means, the city civil court or a
district court within the local limits
or whose jurisdiction, the child to be
adopted ordinarily resides.
61. 61
Hon'ble Gauhati High Court, in the case
of Tarun Chandra Deka v/s Smt. Jamini
Mahanta, reported in AIR 2010 Gauhati
46, has held that appointment of
guardian in respect of person and
property of minor, application for, lies to
Family Court to exclusion of District
Court. - Expression in relation to
Guardianship of person" occurring in S.7
Expln.(g) of Family Courts Act.
62. 62
Hon'ble Division Bench of the Madhya Pradesh in
the case of Tarun Kadam and another v. State of
M.P., reported in [2014] 3 MPWN 96 = [2014] 0
Supreme(MP) 474 has held that:-
Family Courts Act, 1984 - S.7(1)(g) - Hindu
Adoptions and Maintenance Act, 1956 – Ss.7 and
9(4) - Juvenile Justice (Care and Protection of
Children) Act, 2000 - S.41(6)(b) - Juvenile Justice
(Care and Protection of Children) Rules, 2007 -
R.33(5) - application for adoption of child -
jurisdiction to decide it - Family Court has
jurisdiction to entertain application for adoption of
the child.
2008 Cri.L.J. 2368 and 2000(2) Bombay CR 244
distinguished.
63. 63
Whether District court can pass order of
Adoption of Muslim orphan child ?
Ans:- Personal Law of Muslims does not
permit adoption in Muslims but it is
possible under Section 56 (2) r/w
Section 2(52) of the J J Act, 2015 to
adopt a child of a relative as well as the
orphan child, as held by the Hon'ble Full
Bench of Hon'ble the Supreme Court in
the case of Shabnam Hashmi V/S Union Of
India (Writ Petition (Civil) No. 470 of 2005,
dated 19/02/2014)
64. 64
Points to ponder while deciding an
application for Adoption.
1. Check whether all mandatory
requirements as provided u/s 38 of the JJ
Act, 2015 with respect to legally free for
adoption is followed or not.
65. 65
2. Also check whether provisions
contained under Regulation 5 (age
of PAP and Child), 11 (The child shall
be taken in pre-adoption foster care
by the Prospective Adoptive Parents
(PAP) within ten days from the date
of acceptance, after signing the pre-
adoption foster care undertaking in
the format provided in Schedule-
VIII.
66. 66
The specialised adoption agency
shall file the adoption petition in the
court, having jurisdiction over the
place where the specialised
adoption agency is located, within
seven days from the date of
acceptance by prospective adoptive
parents for obtaining the necessary
adoption orders under the Act.
67. 67
4. The adoption petition shall
contain all requisite documents
as per Schedule- IX.
5. If, no objection is raised by
anybody, pass final order within
2 months from the filing of the
application.
68. 68
6. The SAS shall obtain a certified
copy of the adoption order from
the court [Regulation 12(8)] and
Registration of an adoption deed
shall not be mandatory as per
the Act [Regulation 12(9)].
69. 69
As per Section 61 of the JJ Act,
2015:- (1) Before issuing an
adoption order, the court shall
satisfy itself that –
(a) the adoption is for the welfare
of the child;
(b) due consideration is given to
the wishes of the child having
regard to the age and
understanding of the child; and
70. 70
(c) that neither the prospective
adoptive parents has given or agreed to
give nor the specialised adoption
agency or the parent or guardian of the
child in case of relative adoption has
received or agreed to receive any
payment or reward in consideration of
the adoption, except as permitted under
the adoption regulations framed by the
Authority towards the adoption fees or
service charge or child care corpus.
