By: Aryaman Shivendra Pratap: Procedure to adopt a child under Hindu Law
What is adoption?
Adoption is a process where a person assumes the parenting of another person, usually a child or a minor legally, which is seen as valid in the eyes of law.
Apart from adopting the child all the responsibilities and rights are also transferred from the biological parents to the adoptive parents.
If the Hindu couple wants to adopt a child then they shall have to go through a process mentioned under the Hindu Adoption and Maintenance Act, 1956.
History of Hindu Adoption Law
Adoption under the Hindu Law is seen as a Holy process rather than orthodox credence. As per the Shastric Laws an adopted child is equal to the conceived child.
As per the old Hindu Law beliefs, only male children were adopted. The sole purpose for this belief was that the fathers would go to the hell known as “Poota” if they died without having a son. Only the male child can prevent the father from going to “Poota”. A female child could not be adopted. It further said that the male child held a privilege to adopt the child and the consent of the wife for the adoption was unnecessary and irreverent.
But India has come a long way since then. The old, obsolete, and superstitious beliefs of adoption have been cast aside as people became open-minded while adopting a child.
The Hindu Adoption and Maintenance Act was passed after the independence which further divided the scope of adopting a child in the country and is aimed at eradicating all gender-biased prejudicial provisions. It came into effect on 21st December 1956.
It said that any child who was left by his mother and father both, the parenting of such child is unknown and who is raised as Hindu, Sikh, Buddhist, and Jain can be adopted. Before this act, only male children could be adopted. This act has provided that a female child can also be adopted. This act extends to all of India.
Conditions to adopt a child a under the Hindu marriage Act, 1956
- Any male Hindu, having a sound mind, who is a major, and is eligible to adopt can adopt a child. But if the male Hindu is married and wants to adopt a child, then consent from his wife is a must and such consent should be free of any coercion or force, i.e. free consent for the same should be given by the wife. Same conditions also apply to a female Hindu- she must be of sound mind, should be a major, and should be eligible to adopt a child, but if she is married she needs the consent of her husband well before in advance.
- If a male wants to adopt a daughter he must be 21 years older than the adoptive daughter. The same goes for a female, if she wants to adopt a son she should be 21 years older than the adoptive son.
Who can be adopted? Procedure : Adopt, child, Hindu Law
- As per the Hindu laws, any child can be adopted if he /she fulfills some conditions
- The child must be a Hindu
- The child is not previously adopted by anyone
- The child is below the age of 15 years.
- The child should not be married.
What are the necessary points to be kept in mind while adopting a child?
- According to the Hindu Adoption and Maintenance Act, 1956 if a couple or single male or a female wants to adopt a child then they must make an appeal to a child welfare agency. The agency is legally certified and eligible for the registration of adoptive parents and the child and is also certified by the Central Adoption Resource Authority in New Delhi.
- After the registration procedure is done, then a registered agent from the company will conduct an interview of the parents and will try to find out their true intention for adopting a child. The agent will further look the atmosphere and the other things which are crucial for a child in which he/she can grow. And only after all the requirement are sufficed, the process will further go ahead.
- When the parents have finalized that will be adopting a child then they have to file the petition under the Act so that court may start the proceedings.
- Lastly the court will pass a decree and the adoption will be finalized.
Time taken for this entire procedure
Adopting a child in India is a very lengthy and extensive process. Previously, parents who wanted to adopt a child used to register in the nearest agency and used to wait for the agency to get back to them with their preferences of a child. This often took several months and many times years until any child was there for adoption. And when a child was present for the adoption he or she was not what the parents had desired or preferred.
After the introduction of a new statutory body of the Ministry of Women and Child development called Central Adoption Resource Authority (CARA), the numerous adoption agencies can now upload the details and when a child is available for adoption it would quickly match the preferences of the parents and the child will be given up for adoption as fast as possible so that no time of either the parents or the child is wasted.
This initiative is welcome and necessary because earlier the process of adoption was so prolonged that the amount of time to find a child for adoption, who would match the preferences of the parents, would take years and years and by the time a child was finally found for adoption, he or she would have crossed the age of adoption. But due to this new body, an orphan who deserves a better life is now never going to be stranded without a family.
Specification of child
A right is present with the adoptive parent to specify the gender of the child which they wish to adopt. Even the specification of colour of the skin, the religion of the child can also be seen before the adoption. It is totally just and legal in the eyes of law.
Scenario when the parents wish to adopt the same gender as that of their Biological child
In case the adoptive parents wish to adopt a child who is of the same gender as that of their biological child, is not permissible. For example- if parents already have a biological son, and they want to adopt another son, they cannot, do so. But if they want to adopt a daughter they can go ahead and adopt her under the Hindu Adoption and Maintenance Act.
Legal Status/ Rights of Inheritance of the adopted child
The adopted child as mentioned under the Hindu Adoption and Maintenance Act, 1956, is equivalent to the biological child.
An adopted child has all the rights of inheritance of the property of his/her new parents. He or she must be treated at par with the biological child and must get what the latter is given because in the eyes of law the adopted child is the sibling of the biological child.
Procedure : Adopt, child, Hindu Law Procedure : Adopt, child, Hindu Law Procedure : Adopt, child, Hindu Law
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