Adoption as a concept has gone through many radical changes from the time it emerged till the modern age. It’s an inherent concept to continue the family lineage among Hindus but is unknown to non-Hindu religions. Post-independence reforms were brought and the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as HAMA) was enacted which allowed any person who comes under the definition of Hindu under Section 2 to be eligible for adoption. It has gone into further changes regarding gender equality.
The concept of adoption is still unknown and unrecognised to the personal law of Muslims, Christians etc. Under these religions, the idea of guardianship is recognised instead of adopting someone’s else child as their own i.e. becoming his/her parents. But later, to fill the deficient holes another step was taken by the government by introducing a reformative law known as the Juvenile Justice Act, 2015 repealing the Act of 2000 where any person belonging to any religion can apply for the adoption of an orphan, abandoned or surrendered child.
All three laws serve different purposes and are enforceable. Let’s discuss each law separately and the purpose it serves i.e. why was it introduced and when does it come into the picture. In this blog, we’ll also cover the status of inheritance rights under the aforesaid mentioned laws.
A. Hindu Adoption and Maintenance Act, 1956 (HAMA):
- It provides Hindus with the right to legally adopt a child. HAMA is the only personal law that recognises adoption in India.
- It governs the adoption of a Hindu child by the adoptive parents who are also Hindus.
- It gives full status to the child that of a natural child. It means that under this law, the adopted child holds the same rights as that of a biological child.
- The only restriction in HAMA is that parents can’t adopt a child of a particular sex if they already have a child of sex either biologically or through adoption.
- The age of the child should be below 15 years and the child shouldn’t have been taken for adoption priorly.
- Consent of both husband and wife is required.
Inheritance Rights: The child adopted under this Act has been given the status of a biological child and possess equal inheritance rights in his adoptive family, though, he can not inherit from his biological family once adopted.
B. Guardianship and Wards Act, 1890 (GAWA):
- Among non-Hindu religions, complete adoption is not recognised, so if a person wants to adopt a child, he/she can take guardianship of that child under this Act.
- Only a minor i.e. a person who hasn’t completed the age of 18 years can be adopted.
- Under Muslim personal law, the closest approach to adoption is ‘acknowledgement of paternity, therefore even after adoption, the relationship status is not that of a parent and child.
- Christians can also adopt a child for foster care.
- Under GAWA, the relationship that gets established after the adoption is that of a guardian and a ward.
- The major fact is that when the child attains the age of 21, he/she no longer remains a ward but instead assumes his/her individual identity.
- A guardian under this act can be of a person or property or both. This implies that this Act is solely not restricted to the purpose of adoption only but also affirms guardianship of a minor.
- Any person appointed as a guardian through Will is given prior preference and the court shall not appoint any other person as a guardian unless the aforementioned person ceases to be a guardian under the law.
Inheritance Rights: Under this Act, since the parent-child relationship is not established, the ward does not have any inherent right of succession to his/her parents' properties but through a Will, such inheritance right can be given. The only thing is that it could be challenged by a blood relative.
C. Juvenile Justice Act, 2015 (JJ Act):
- Since the above laws have their own restrictions and lack in identifying the adoption of orphan, abandoned and surrendered children, another codified law was required to make adoption an equal opportunity for everyone.
- JJ Act is designed for the care, protection, development and rehabilitation of juveniles in conflict with the law and children in need of care and protection. It is applicable to all citizens of India irrespective of their religion. It is a uniform legal framework allowing everyone to adopt a child.
- Unlike HAMA, this Act allows parents to adopt a child of the same sex, there are no restrictions as such. Nothing in this act applies to HAMA.
- Under this Act, a child can be adopted up to 18 years of age.
- CARA is a statutory body under the ministry of women and child development, Government of India. It functions as the central or nodal body of the adoption of Indian children and monitors in-country and inter-country adoptions.
- The following are the rules for adoption under JJ Act:
- The prospective parents should be mentally sound and physically fit and they should be fully prepared to adopt the child and also should be ready to provide a good upbringing.
- In the case of married couples, both spouses' consent is required.
- A single male is not eligible to adopt a girl child.
- No child shall be given to any couple until they have at least two years of stable a.martial relationships.
- The minimum age difference between the adoptive child and the parents should not be less than twenty-five years.
- Under this Act, once the court issues the decree, the adoption is finalised.
Inheritance Rights: The child adopted under this Act has been given the status of a biological child and possess equal inheritance rights.
Where does the problem arise?
- Adoption cases under HAMA usually get challenged especially in the cases of second marriage or adoption of a child who lost his/her parents when it comes to the succession lineage of the adoptive parent.
- If you’re a guardian of a minor under GAWA, since the relationship of parent-child is not established, it is very easy to take that person out of the succession lineage, as no legal heir relation gets established.
- Under JJ Act, no such problem arises but sometimes legal disputes are created to have a share in the property whereas the reality is that an adopted child under this Act is given the status of a biological child only.
To ensure that the inheritance rights of the adopted children are protected, make sure you write a Will because it is one such document which overlooks religion, relationship etc. and anyone can be a beneficiary.
AasaanWill. Zaroori Hai!