CHILD ADOPTION IN INDIA: A COMPARATIVE STUDY UNDER HINDU
ADOPTION AND MAINTENANCE ACT 1956 (HAMA) AND THE
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT
2015
Introduction
Adoption in India is a multifaceted legal process governed primarily by two
legislative frameworks: the Hindu Adoption and Maintenance Act, 1956
(HAMA) and the Juvenile Justice (Care and Protection of Children) Act,
2015 (JJ Act). While HAMA caters specifically to Hindus, encompassing
Sikhs, Jains, and Buddhists, the JJ Act adopts a secular approach,
facilitating adoption irrespective of religious affiliations. This assignment
undertakes a comparative analysis of these two statutes, examining their
objectives, eligibility criteria, procedural mechanisms, legal implications,
and pertinent judicial interpretations to elucidate their roles in safeguarding
the welfare of adopted children and ensuring the integrity of the adoption
process in India.
Hindu Adoption and Maintenance Act, 1956 (HAMA)
HAMA was enacted to codify the customs and traditions related to adoption
among Hindus, thereby providing a uniform legal framework. It recognizes
adoption as a sacramental act that establishes a permanent parent-child
relationship, akin to biological kinship.
1. Eligibility for Adoption under HAMA
Adoptive Parents: HAMA restricts adoption to Hindus, which includes
Sikhs, Jains, and Buddhists. Prospective adoptive parents must be Hindus,
and the adopter must either be a Hindu male or female of sound mind,
capable of adopting. A married Hindu man may adopt with the consent of
his wife, unless she is unable to consent due to mental incapacity or other
valid reasons.
Single Individuals: Unmarried Hindu women, widows, and divorcees can
adopt in their own capacity without needing spousal consent.
Adopted Child: The child to be adopted must also be a Hindu and under the
age of fifteen unless a custom permits otherwise. HAMA does not explicitly
address the adoption of children beyond this age limit, potentially limiting its
applicability in cases involving older children.
2. Procedure and Requirements
Sacramental Adoption: HAMA requires a formal ritualistic procedure
involving the physical transfer of the child from the biological or
surrendering parents to the adoptive parents. This includes the signing of a
deed of adoption, which must be registered to confer legal validity.
Opposite-Sex Adoption: If the adoptive parents already have a biological
child of a particular sex, the act mandates that the adopted child must be of
the opposite sex to maintain familial balance.
Legal Formalities: The act emphasizes the intention behind adoption,
ensuring that it is a voluntary and deliberate act aimed at providing the child
with a stable family environment.
3. Legal Effects
Termination of Biological Ties: Upon successful adoption under HAMA, the
child ceases to have any legal ties with the biological family, and
inheritance rights are transferred to the adoptive family.
Rights and Duties: Adoptive parents assume all legal rights and
responsibilities akin to those of biological parents, including maintenance
and upbringing.
Judicial Interpretations: In Baldeo Pujari vs. Babulal (2001), the Supreme
Court upheld the sanctity of HAMA, emphasizing that adoption under
HAMA is a solemn and irrevocable act that fundamentally alters the familial
structure.
Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act)
The JJ Act, 2015, represents a paradigm shift towards a more inclusive and
regulated adoption framework in India. It is designed to provide a robust
legal mechanism for the care, protection, and rehabilitation of children in
need, encompassing adoption as a key component.
1. Eligibility for Adoption under the JJ Act
Adoptive Parents: Unlike HAMA, the JJ Act is secular and open to
individuals of any religion, thereby broadening the scope of eligible
adoptive parents. Both married and single individuals can adopt, although
certain restrictions apply, such as prohibiting single males from adopting
female children unless exceptional circumstances are present.
Age and Marital Status: Prospective adoptive parents must typically be at
least 25 years old and at least 21 years older than the child to be adopted.
The Act accommodates single parents, widows, and divorcees, reflecting a
more progressive stance compared to HAMA.
Adopted Child: The JJ Act primarily facilitates the adoption of children who
are abandoned, orphaned, or surrendered. There is no stringent upper age
limit, allowing for the adoption of older children who might otherwise be
marginalized.
2. Procedure and Requirements
Central Adoption Resource Authority (CARA): The JJ Act institutionalizes
CARA as the central regulatory body overseeing adoptions. CARA ensures
adherence to national standards, maintains a centralized registry of
orphaned and surrendered children, and oversees the allocation of children
to prospective adoptive parents.
Rigorous Screening: Prospective adoptive parents must undergo a
comprehensive screening process, including background checks, home
studies, psychological evaluations, and verification of financial stability. This
rigorous vetting aims to safeguard the child’s welfare.
Legal Formalities: The adoption process under the JJ Act involves
obtaining a court order or a designated authority’s approval, ensuring that
the adoption is legally binding and in the child’s best interests.
3. Legal Effects
Legal Parent-Child Relationship: Similar to HAMA, adoption under the JJ
Act creates a permanent and legally recognized parent-child relationship,
conferring all associated rights and responsibilities.
Inheritance Rights: The adopted child gains inheritance rights in the
adoptive family, while forfeiting any claims to the biological family’s estate.
Judicial Oversight: In M.C. Mehta vs. Union of India (2017), the Supreme
Court emphasized the necessity of adhering to the procedural safeguards
outlined in the JJ Act, reinforcing the judiciary’s role in upholding the Act’s
provisions.
Comparative Analysis of HAMA and the JJ Act
1. Scope and Applicability
HAMA: Limited to Hindus and related religious communities, HAMA is
inherently a personal law, reflecting traditional practices and religious
norms. Its applicability is confined to individuals adhering to these religions,
thereby excluding others.
JJ Act: As a secular statute, the JJ Act transcends religious boundaries,
making adoption accessible to all Indian citizens regardless of their
religious affiliations. This inclusivity aligns with India's pluralistic society and
ensures that more children can find permanent homes.
2. Eligibility Criteria
HAMA: Imposes restrictions based on religion, marital status, and the sex
of the child relative to existing biological children. These criteria can be
restrictive, particularly for single males and those wishing to adopt children
of a specific gender.
JJ Act: Offers a more flexible and inclusive framework, accommodating a
broader range of adoptive parents, including single women, couples of any
religious background, and individuals seeking to adopt older children.
However, certain gender-specific restrictions remain, albeit with provisions
for exceptions.
3. Procedural Safeguards
HAMA: The adoption process under HAMA is relatively straightforward but
less regulated, relying primarily on the formalities of the sacramental
adoption and registration of the deed.
JJ Act: Introduces stringent procedural safeguards through CARA’s
oversight, ensuring thorough vetting of prospective adoptive parents and
the welfare of the child. This comprehensive approach minimizes the risk of
exploitation and ensures that adoptions are conducted in the child’s best
interests.
4. Legal Protections and Judicial Oversight
HAMA: While HAMA provides legal protections by severing ties with the
biological family and granting full parental rights to adoptive parents, it
lacks the extensive judicial oversight embedded in the JJ Act.
JJ Act: Enhances legal protections through the involvement of CARA and
the judiciary, ensuring that adoptions are not only legally sound but also
ethically and morally appropriate. Judicial interventions in cases like Baby
Manji Yamada vs. Union of India (2008) highlight the judiciary’s role in
interpreting and enforcing the provisions of the JJ Act to protect the child’s
interests.
5. Adoption of Abandoned and Orphaned Children
HAMA: Primarily focused on adoption within the Hindu community, HAMA
does not explicitly address the adoption of abandoned or orphaned
children, potentially leaving a significant gap in child welfare.
JJ Act: Specifically designed to facilitate the adoption of children who are
abandoned, orphaned, or surrendered, the JJ Act fills this critical gap,
ensuring that vulnerable children have access to permanent and loving
homes irrespective of their religious background.
Challenges and Recommendations
Despite the advancements brought about by the JJ Act, several challenges
persist:
1. Awareness and Accessibility: There remains a lack of awareness about
the JJ Act’s provisions, particularly in rural areas. Enhancing outreach and
education can bridge this knowledge gap.
2. Implementation and Bureaucratic Delays: The adoption process under
the JJ Act is often criticized for being time-consuming and bureaucratically
cumbersome. Streamlining procedures and increasing administrative
efficiency could mitigate these delays.
3. Social Stigma and Cultural Barriers: Cultural prejudices, especially
regarding single-parent adoption and inter-religious adoptions, continue to
hinder the adoption process. Societal change through advocacy and
education is essential to overcome these barriers.
4. Legal Harmonization: While the JJ Act offers a comprehensive
framework, harmonizing it with personal laws like HAMA can create a more
unified and efficient adoption system, reducing legal ambiguities and
inconsistencies.
Conclusion
The comparative study of HAMA and the JJ Act underscores the evolution
of adoption laws in India from a religion-specific framework to a more
inclusive and regulated system. While HAMA remains pertinent within the
Hindu community, the JJ Act represents a progressive shift towards
ensuring the welfare of all children, irrespective of their religious
backgrounds. The establishment of CARA and the incorporation of
stringent procedural safeguards under the JJ Act enhance the integrity and
transparency of the adoption process, aligning it with contemporary child
welfare standards. However, addressing the existing challenges through
increased awareness, streamlined procedures, and societal acceptance is
imperative to fully realize the Act’s potential. Ultimately, the coexistence of
HAMA and the JJ Act reflects India’s pluralistic ethos, providing diverse
pathways for adoption while striving to prioritize the best interests of the
child.
References
1. Hindu Adoption and Maintenance Act, 1956.
2. Juvenile Justice (Care and Protection of Children) Act, 2015.
3. Baldeo Pujari vs. Babulal (2001) 6 SCC 251.
4. M.C. Mehta vs. Union of India (2017) 4 SCC 411.
5. Baby Manji Yamada vs. Union of India (2008) 4 SCC 433.
6. Central Adoption Resource Authority (CARA) – Official Website.
7. Supreme Court of India Judgments and Legal Commentaries.
