CHAPTER 3

LEGAL PERSPECTIVE
IN
CHILD ADOPTION:
A CLARION CALL TO
SECULARISM

CHAPTER 3
LEGAL PERSPECTIVE IN CHILD ADOPTION:
A CLARION CALL TO SECULARISM
The objects of adoption are twofold : the first is religious, to secure
spiritual or religious benefit to the adopter and his ancestors by having a
son for the purpose of offering funeral cakes and libations of waters to the
soul of adopter and his ancestors. The second is secular, to secure an heir
and perpetuate the adopters name. Under the light of that it is significant
to trace historical perspective of child adoption not only in India but in
western/foreign countries and also Islamic countries.
3.1

TRACING
THE
ADOPTION
HISTORY
REFERENCE FROM WESTERN WORLD

WITH

SPECIAL

Historical Adoption has been a known feature even in western countries.

Adoption

has

been

called

the

quintessential

American

institution,

embodying faith in social engineering and mobility. While it is true that

the modern form emerged in the United States, civilization has a long
history of the practice of adoption. A legal process, adoption in the United
States creates the status of parent and child between individuals who are
not each others parent or child. In simpler words, there is no biological
relationship between the two.

3.1.1 SPECIAL
SPECIFIC
CODES
RESPONSIBLE
FOR
THE
DEVELOPMENT OF CHILD ADOPTION: CODE OF HAMMURABI
The Code of Hammurabi, for example, details the rights of adopters and
the responsibilities of adopted individuals at length while the practice of
36

adoption in ancient Rome is well documented in the Codex Justinianus.

Markedly different from the modern period, ancient adoption practices put
emphasis on the interest of the adopter providing a legal tool that
strengthened political ties between wealthy families and creating male
heirs to manage estates. The use of adoption by the aristocracy is well
documented; many of Rome's emperors were adopted sons14.
3.1.2 EMERGENCE AND EFFECTS OF INDUSTRIAL REVOLUTION ON
ADOPTION SYSTEM ACROSS THE WORLD
Industrial revolution marks substantial change in human history. This was
the period from the 18th to the 19th century where major changes in
agriculture, manufacturing, mining, transport, and technology had a
profound effect on the socioeconomic and cultural conditions starting in
the United Kingdom, and then subsequently spreading throughout Europe,
North America, and eventually the world.
Modern American adoption laws evolved during the latter half of the 19th
century, prompted by changes due to the Industrial Revolution, large
numbers of immigrant children who were often in need of care, and a
growing concern for child welfare. Because of the poor health conditions
in the tenements of large cities, many children were left on their own at
early

ages.

These

dependent

children

were

sometimes

placed

in

almshouses with the mentally ill, and sometimes in foundling homes

plagued by high mortality rates.

14

http://www.wsu.edu/~dee/MESO/CODE.HTM as visited on 15 Dec 2010

37

In the 1850s the Children's Aid Society of New York City began to move
dependent children out of city institutions. Between 1854 and 1904
orphan trains carried an estimated 100,000 children to the farms of the
Midwest where they were placed with families and generally expected to
help with farm work in exchange for care15. The Orphan Train Movement
lasted from 1853 to the early 1900s and more than 120,000 children were
placed. This ambitious, unusual and controversial social experiment is
now recognized as the beginning of the foster care concept in the United
States. The Orphan Train Movement and the success of other Children's
Aid initiatives led to a host of child welfare reforms, including child labour
laws, adoption and the establishment of foster care services, public
education, the provision of health care and nutrition and vocational
training16.
Massachusetts became the first state to pass legislation mandating
judicial supervision of adoptions in 1851, and by 1929 all states had
passed some type of adoption legislation.17 During the early part of the
20th century it was standard practice to conduct adoptions in secret and
with records sealed, in part to protect the parties involved from the social
stigma of illegitimate biological.

15

The Childrens Aid Society, Newyork, An estimated 30,000 children were homeless in
New York City in the 1850s.
16
New-York Historical Society, Guide to the Records of the Children's Aid Society 18362006 (bulk 1853-1947) MS 111
17
http://dlib.nyu.edu/findingads/html/nyhs/childrensaidsociety_at.html
38

3.2 AFTERMATH
RESULTS
World

War

II,

or

OF

WORLD

the Second

WAR IIWorld

War

REPERCUSSIONS
was

AND

global military

conflict lasting from 1939 to 1945, which involved most of the world's
nations. After WWII two factors combined to increase interest in the
adoption of infants. In America the development of formula feeding
allowed for the raising of infants without a ready supply of breast milk,
and psychological theory and research about the relative importance of
training and conditioning in child rearing eased the concerns of childless
couples about potential "bad seeds." Because of the burgeoning interest
in infant adoptions, many states legislated investigations of prospective
adoptive parents and court approval prior to finalization of the adoption.
Americans began adopting orphan children from Japan and European
countries. Additional war time conflicts in Greece, Korea and Vietnam
increased inter-country adoptions. Social upheaval and poverty were the
reasons for the increase in international adoptions.18 Latin America, China
and Eastern European Countries all have a large amount of inter-country
adoptions on a yearly basis. This scenario can be discussed as in 1945s
post WWII and post 1970s with special reference to America.
3.2.1 SCENERIO AFTER 1945s
Until about mid-century the balance of infant supply and parent demand
was roughly equal in United States of America. However during the 1950s
the demand for healthy white infants began to outweigh the supply.
18

International Adoption Facts, http://www.livestrong.com/article/87467-internationaladoption/

39

Agencies began to establish matching criteria in an attempt to provide the

best fit between characteristics of the child or biological parents and the
adoptive parents, matching on items such as appearance, ethnicity,
education, and religious affiliation.

3.2.2 SCENERIO AFTER 1970s

By the 1970s in America, it was not uncommon for parents to wait 3-5
years after their initial application to a private adoption agency before
they had a healthy infant placed with them. These trends resulted from a
decrease in the numbers of infants surrendered for adoption following the
increased availability of biological control, the legalization of abortion, and
the increasingly common decision of unmarried mothers to keep their
infants. In response to this dearth of healthy, same-race infants,
prospective adoptive parents turned increasingly to international and
transracial adoptions.
Children from Japan and Europe began to be placed with American
families by agencies after WWII, and since the 1950s Korea has been the
major source of international adoptions (except in 1991 with the influx of
Romanian children). The one child policy of the Chinese government has
provided a new source of infants to American families, and recently many
adoptees have come from Peru, Colombia, El Salvador, Mexico, the
Philippines, and India.

40

The Civil Rights Movement of the 1960s was accompanied by an increase

in the number of transracial adoptions involving black children and white
parents. These adoptions peaked in 1971, and one year later the National
Association of Black Social Workers issued a statement opposing
transracial adoption. They argued that white families were unable to
foster the growth of psychological and cultural identity in black children.
Transracial adoptions now account for a small percentage of all adoptions
and these most frequently involve Korean born children and white
American families.
3.2.3 USA UNDER THE IMPACT OF THE 1960S AND 1970s
REVOLUTIONS ON CURRENT ADOPTION PRACTICES
There was Liberation movements on womens liberation, civil rights
movement, sexual revolution, adoptees liberty movement (ALMA, 1971),
biological fathers rights. Biological control methods were used to reduce
the number of unplanned pregnancies. The legalization of abortion or
termination of pregnancy gave women a choice in whether or not to carry
an unplanned pregnancy to term. Normalization of single parenthood in
the dominant culture allowed women to choose whether to place a child
for adoption or raise the child alone. Support of this choice was provided
by increased welfare aids for unmarried females and head of household
tax relief, as well as increased job opportunities. Introduction of The
Indian Child Welfare Act, (ICWA-1978). Normalization of step, blended, or
other family types which are not connected by blood. Social workers were
encouraged to modify their role into one of educators for adoptive parents

41

in order to help them recognize and cope with the differences in raising
adopted children vs. raising biological children. Biological Parents and
adult adoptees began to speak out about their experiences, their rights
and their needs. Adoptive parents demanded more information on the
children whose futures were entrusted to them19.
While healthy infants have been much in demand for adoption during the
last 50 years, the number of other children waiting for adoptive homes
has grown. In response, the U.S. Congress passed the federal Adoption
Assistance Child Welfare Act in 1980, giving subsidies to families adopting
children with special needs that typically make a child hard to place.
Although individual states may define the specific parameters, these
characteristics include older age, medical disabilities, minority group
status, and certain physical, mental, or emotional needs.
3.3

TRACES OF CHILD ADOPTION AS OF ANCIENT TIMES IN

INDIA

In early 17th Century Dattaka-mmms20 by Nanda-Pandita was

considered to be the classical work on the topic of Adoption and
subsequently used by the British authorities as Hindu law. Later it was
translated by Sutherland in 1821. Another renowned work Dattakachandrika is attributed to Kuvera.

19

Rita Meiser, Esq. and Marcie Velen of Arizona Childrens Home Association
Sanskrit Text of Nanda Pandit's Dattaka Mimansa and its English translation; "Law,
Liberty and Social Justice" (Asia Publications)
20

42

The main points, according to the Dattaka-Chandrika, are as follows:

there are two motives in adopting a son; viz.
(i)

to perform obsequial rites is honour of the adoptive father and

his ancestors,

(ii)

to be the successor of the adoptive father. Any sonless man

may adopt a son; 'sonless' implies the absence of son,
grandson and great-grandson.

Except for a Sudra, one cannot adopt a daughter's son or a sister's son. A
person's single son cannot be given in adoption. A woman cannot give
away a son without the permission of her living husband. If the husband
is dead, she can do so in the absence of prohibition by the husband. An
adopted son is placed on equal footing with a natural son. In the
Commentaries and Digests, while the fathers power of giving in adoption
is universally recognized, the same power is denied or doubted to the
mother. The learned writer of the Dattaka Minansa quotes the following
text of Saunaka,
By one having an only son the gift of a son should not be
made; by one having many Sons the gift of a son should
anxiously be made, and comments since the masculine gender
is used in the compound word by one having many Sons the
gift of a son, by a woman is prohibited,

21

but on the basis of the text of Vasishtha except with the assent of her
husband he admits that the mother can give her child in adoption with the
21

In Hindu mythology he is one of the Saptarishis (Seven Great Sages Rishi)

43

assent of her husband curiously enough, Nand Pandit denies the power of
taking in adoption to a widow, but gives the power of giving in adoption
to a widow and maintains that in such cases assent must be presumed
inasmuch as Vedic instances indicate the legality of such gifts and
inasmuch as several texts of sages recognise independent power of the
mother to give in adoption.
Then, referring to text to Manu22, Baudhayana

23

, Yajnavalkaya and

Vasistha he laid down the following three propositions:

(i)

The competency of both parents united is the principal;

(ii)

That of the father alone independently of the mother is the

mediocre, and

(iii)

That of the mother, depending as it does on the assent of her

husband, is an inferior alternative.

Indian culture has its distinctive paradoxes. Indian mythology is full of

stories where babies were born in one place and brought up elsewhere by
non parents. The tenets of Hindu Law clearly state that 12 kinds of sons
were recognized and one of them was the Dattaka son, i.e, a son whom
his father or mother gives as a son affectionately in a time of distress to
one who is of the same caste. Some of the prominent examples are

22

Manu is a title accorded to the progenitor of mankind, and also the very first king to
rule this earth, who saved mankind from the universal flood. He was absolutely honest
which was why he was initially known as "Satyavrata", (One with the oath of truth)
23

Baudhayana Dharma Shastra: (Sanskrit) A book of laws associated with the Krishna
Yajur Veda and governing studentship, marriage, household rituals, civil law, etc. It is
followed by brahmins of Southwest India.
44

Goddess Sita from Ramayana and Lord Krishna from Mahabharata.

Other

characters

from

those

days

are

Daan

Veer

Karan

and

Shakuntala. These characters and admired even defied within the same
tradition, childless women are some time treated with contempt or petty
and denied certain ritual roles, especially in the upper caste groups. A
tress memory of this attitude still lingers in the collective unconscious of
our people.
It is often quoted as a narrative in which there is total acceptance of the
notion that an adoptive mother can love and care for non offsprings also
establishes the reciprocation of the love by the child.

The fact that

Krishna is referred as Yoshada Nandan appears very crucial to the

notion of adoption and entitlement24.

3.3.1 HINDU MYTHOLOGICAL TALES IN SPECIAL CONTEXT TO

CHILD ADOPTION
Mahabharata has more in common with the practice of adoption as it
existed today.

Karans story also portrays the intense loyalty of the

adoptee the adoptive parents. Karna was the son of Kunti from the Sun
God. The story is that Kunti, while still very young, had occasion to serve
Rishi (sage) Durvasha. She looked after him with great dedication.
Durvasha was highly pleased. He gave Kunti a mantra (chant) and said
that whichever God she would think of after reciting the mantra, would
appear before her and bless her with a son endowed with his own godly

24

Vinita Bhargava, Adoption in India, 2005, Sage Publications

45

qualities. Kunti got scared and wanted the Sun God to go away, but he
pleaded his helplessness against the power of mantra. Surya however
assured Kunti that even after being blessed with a son, she would still
remain a virgin and would not have to suffer any opprobrium. And so
Karna was born with kavach and kundal (armor which would make him
invincible). Kunti was nevertheless afraid of social stigma and therefore
she abandoned the child. She put Karna in a basket and placed the same
in the Ganges river, the basket was seen by Adhirath, a charioteer, who
had no issues. He picked up the baby and brought him up. That is why
Karna is also sometimes referred to as Sarathiputra. Radha adopts Karna
after his rescue from his famous basket ride down the river Ganges. She
names him Vasusena. This was his first adopted name as an infant,
whiles his name Karna, was a later name. Vasusena is the one, who in
later times became "The Mighty Surya" the Sun God and the Legendary
Karna.
There are several other tales in Hindu methodology that suggests that the
concept of raising a strangers child has always existed. Children were
brought up by sages or Rishis. Girl children were brought up and given in
marriage to prince and kings indicating a child centeredness in adoption.
The myth of Shakuntla and Andal assumed importance as examples of
female adoption.

Whereas it is known about Shakuntala that she was

born of the sage Vishwamitra and the Apsara Menaka. Menaka had come
at the behest of the King of the Gods, Indra, to distract the great

46

sage Vishwamitra from his deep meditations. She succeeded, and bore a
child by him. Vishwamitra, angered by the loss of the virtue gained
through his many hard years of strict asceticism, distanced himself from
the child and mother to return to his work. Realizing that she could not
leave the child with him, and having to return to the heavenly realms,
Menaka left the newborn Shakuntala in the forest. It was here that the
new born child was found by Kanva Rishi surrounded by birds. He thus
named her Shakuntala. Kanva Rishi took the child to his ashram, which
was known as "Kanva Ashram" on the banks of the Malini River which
rises in the Shivalik hills of Himalayas and lies about 10 km from the town
of Kotdwara in the state of Uttarakhand, India. This fact is corroborated
by Kalidas in his famous epic Abhighyan Shankuntalam in which he has
described the ashram of the Kanva Rishi on the banks of river Malini25.
Goddess Andal was found by devout Brahmin named Vishnucitta lived in
Villiputtur, a town near Madurai while he was performing his daily prayers
and collecting flowers he found one baby girl lying under tulsi plant.
Having no family of his own, Vishnucitta felt it was God's grace that gave
him this child and named her Godai, or "gift of Mother Earth." Filled
with joy, he took her home and raised her as his own. She is was a great
devotee of Lord Krishna and later was famously known as "Andal", the
girl who "ruled" over the Lord. Andal and Shakuntala both were
considered as goddess, earths gift to their respective parents.

25

http//:Wikipedia
47

3.3.2 DEVELOPMENT OF CODIFY LAW: PRE CONDITIONS FOR

ADOPTION
Under Indian law there is no specific law for child adoption but due to
judicial activism there are lot of cases which have set precedents for the
contiguous issues and other complexities in child adoption. Like under,
Andhya alias Supriya Kulkarni & another v. The Union of India &
another26, they have questioned the validity thereof on the ground of
violation of Articles 14 and 21 of the Constitution of India. The Hindu
Adoption & Maintenance Act, 1956 - Sections 11(i) and (ii) provisions
read thus:
"In every adoption, the following conditions must be complied
with
(i)

if the adoption is of a son, the adoptive father or

mother by whom the adoption is made must not have a

Hindu

son,

son's

son

or

son's

son

(whether

by

legitimate blood relationship or by adoption),

(ii)

if the adoption is of a daughter, the adoptive

father or mother by whom the adoption is made must

not have a Hindu daughter or son's daughter (whether
by legitimate blood relationship or by adoption) living at
the time of adoption"
Thus, the impugned provisions injunct a person from having second son
or daughter by adoption. The main challenge put forth is that the Right to
Life under Article 21 as explored through various judicial pronouncements
has numerous dimensions. Life with human dignity is one such. The right
26

AIR 1998 Bom 228

48

to have size of a family according to one's own choice is comprehended

within the concept of human dignity. Since the impugned provisions
prevent such right, they are violative of the Constitutional guarantee.
Ancient Hindu law alone rendered recognition therefore, that too was
limited to as male child by an issueless parent. During one's lifetime,
there could not be adoption of another male child. Adoption of a female
child was not at all recognized. Predominant mythological design was to
have a son, even by adoption, to perform last rites so that deceased could
avail Moksha i.e. Eternal Bliss and also to continue the generation of
adoptive parent.
In some part of the country, the dancing girl could adopt a female child.
This was more a customary and perhaps with a view to perpetuate the
traditional avocation of dancing. This could not, however, be a part of
Hindu law. The Orissa High Court in Krushna Kahali v. Narana Khali27,
held such custom as invalid.
Hindu Adoptions & Maintenance Act, 1956, herein after written as HAMA,
codified the practices as prevailing under Ancient Hindu in relation to
adoption. By way of an amendment, the Act incorporated a significant
feature of adoption of a female child which was unknown to the Ancient
law. This being the personal law, the adoption was confined by and to
Hindu parents and that too of a Hindu child.

27

AIR 1991 Ori 134

49

The HAMA abrogates

all

pre-Act customs

and

usages

pertaining

to

adoption except in two areas, where custom is preserved:

(i)

A married child can be adopted, if custom permits such an

adoption,

(ii)

A child of fifteen years or above can be adopted if custom

permits such an adoption.

If in the natural family some property was vested in the child before
adoption,

that

will

remain

in

him

and

he

cannot

be

divested of it just because he has gone out to another family of adoption.

Further, the child retains sapinda relationship and degrees of prohibited
relationship in his natural family for the purpose of marriage28.
The Hindu Adoptions & Maintenance Act, 1956, amending Act, 45 of 1962
brought a revolution. Amended sections which threw light upon vital
issues were as follows:
i.

To provide adoption and congenial home for an abandoned

child.

ii.

To authorize manage of Fondling or Remand Homes to give

abandoned children in adoption, with the permission of the
Court.

iii.

To include a child, legitimate or illegitimate, who has been

abandoned by both of his parents or whose parentage is not
known, but who, in either case is brought up as Hindu to be a
Hindu by religion.

28

Legalpundits International Services

50

Indian Law as far as child adoption is concerned is religion-specific in,

although it is a very conservative approach from the law point of view. It
toughened practices that were unjust to children and hindered the
formation of a Uniform Civil Code.
According to Article 44 of the Constitution of India:
The State shall endeavour to secure for the citizens a
Uniform Civil Code throughout the territory of India.
Over the years several attempts were made to formulate a general
secular law on adoption. The attempts of Parliament in this direction did
not bear fruit, all these went in vain on account of a number of reasons.
The history of all such efforts does not bring credit to the secular
credentials of the Indian polity.
The Adoption of Children Bill, 1972 was not approved as the Muslims
opposed it. The Adoption of Children Bill, 1980, aiming to provide for an
enabling law of adoption applicable to all communities other than the
Muslim community, was opposed by the Bombay Zoroastrian Jashan
Committee, which formed a special committee to exempt Parsis from the
bill. The National Adoption Bill, tabled twice in Parliament in the seventies,
has yet to enter the statute books. The history of attempt to bring in the
concept of secular adoption into our system of laws narrates a sad tale of
inaction and action without conviction on the part of the legislature.

51

3.3.3

MUSLIM ADOPTION AND PRACTICE IN INDIA

Post independence there was no change in adoption laws. But there was
always a need for uniform law governing adoption. GAWA - is Guardians
And Wards Act, 1890. Does not give adopted child same legal rights a
biological child. Parents are just the guardians of the adopted child and
such an adoption can by revoked by the child after the age of 18. Legally
it was only a Hindu citizen who, under the Hindu Adoption and
Maintenance Act (HAMA), 1956, could adopt a child. The closest that nonHindus, that is, Muslims, Christians, Parsis and Jews, could come to
adoption was through procedures under the Guardians and Wards Act,
one that is hardly a substitute for a full-fledged adoption law. There was a
undeniable need for a civil law governing adoption, or failing that, an
enabling adoption code which adoptive parents who are non-Hindus, or do
not wish to adopt under HAMA, could take recourse to. The religionspecific nature of adoption laws was a very conservative step and
claustrophobic in nature for the society where people from religion are
treated differently in the eyes of law. Like In 1980, India passed The
Adoption of Children Bill, 1980, that allowed non-Hindus to adopt children
(prior to that time, only Hindus could adopt). However, Muslims believed
that the Quran does not allow adoption. They tried to block the law.

52

In Martha Nussbaums29 Sex and Social Justice, she cites Tariq

Mahmood, a professor at the University of Delhi, on this issue.

Even if it is accepted that Islamic law prohibits adoption, how

can the Muslims prevent enactment of a secular law of
adoption which will be applicable only to those who wish to
adopt a child? If Islamic law does not permit adoption, the
Muslims need not make use of the Indian adoption law. That
law will certainly not impose on any person a duty to
adopt.If Islam does not recognize a social or economic
concept, the state cannot compel every Muslim to keep away
from it. If that were possible, our banking laws should not be
available to any Muslim, since Islam does prohibit interest on
money30
It is a defence of classical liberalism, feminism and humanism, providing
support for an understanding of humanity that allows for criticism of other
cultures without Western condescension. Nussbaum tackles the relativism
of postmodern feminism, and its inability to give women true freedom in
countries were genital mutilation is practiced, women are kept from
education, etc. It has been asserted that adoption in technical sense is
not allowed in Muslim law.
The intention of the Prophet was that if a man called another's son "his
son" it might create complication with natural and normal relationship if

29

Martha Nussbaum (born Martha Craven on May 6, 1947) is an American philosopher with a particular interest in ancient Greek and Roman philosophy, political philosophy and ethics.
30

http://arbitrarymarks.com/wordpress/2007/03/
53

taken too literally. The idea of the Prophet was to convey that the real son
is a real son and adopted son is not a real son.
To treat an adopted son, as a real son if one has no real son is not a
mistake as what counts is the intention of the heart. Even if according to
this verse, the adopted sons are to be called by the name of their father
and if their father's name is not known then to call them as mulla or
brother, this verse nowhere says that if any adoptions made by a man
who has no son of his own, it will be against the dictates of Allah. If
according to the Prophet if a slave whose father's name is not known is to
be treated as brother then is it not permissible for an issueless person to
treat a boy as his (adopted) son. If you will recognize a man by the name
of his natural father it will be more Just in the sight of Allah. But if you
call him as your own son it will not be unjust nor Allah will be displeased,
'the Prophet has not barred adoption in absolute terms. What is intended
is erecting of false relationship to the detriment or loss of true blood
relation. The believers should follow him rather than their lathers,
mothers or brothers where there is conflict of duty. The doctrine
advanced by the Prophet is based on the situation where there is already
a natural born son to a father. There can be situations where there is no
son to a man so in that situation that man can or cannot adopt a son for
himself and treat him like a son. It may be noted that the Prophet has
envisaged that in case of slaves, they should be known by their father's
name.

54

The custom of adoption is valid amongst Mohammedans, and Shariat law

does not prohibit such custom of adoption. It cannot, therefore, be said
that the Holy Quran prohibits adoption. If the above verse is interpreted
to mean that the prophet has prohibited adoption, it cannot be assumed
that what is prohibited by the Holy Quran can be permissible by custom
and usage.
3.3.4 THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT,
1937 AND ITS EFFECT ON ADOPTION
Yet, another question connected with adoption is application of the
Muslim Personal Law (Shariat) Application Act, 1937. It may be pointed
out that in 1937 this Act was promulgated to make provision for
application of Muslim Personal Law (Shariat) to Muslims. Section 2 of this
Act provides as under:
Notwithstanding any customs or usage to the contrary, in all
questions

(save

questions

relating

to

agricultural

land)

regarding intestate succession, special property of females,

including personal property inherited or obtained under
contract or gift or any other provision of Personal Law,
marriage, dissolution of marriage, including talaq ila zihar,
lian, khula and mubaraat, maintenance, dower, guardianship,
gifts, trusts and trust properties, and wakfs (other than
charities

and

charitable

institutions

and

charitable

and

religious endowments) the rule of decision in cases where the

parties are Muslims shall be the Muslim Personal Law
(Shariat).

55

It may be seen that this section specially enumerates the subjects which
are to be governed by Muslim Personal Law notwithstanding any custom
or usage to the contrary. The matters enumerated in this section do not
include adoption. For the interpretation of this section of the Shariat Act,
reference can be made to two division bench judgments of the Madras
High Court in Puthiya Purahil Abdurahiman Kurnavan v. Thuyath
Kancheentavida Avoomma31 and Maulvi Mohd. v. Mahboob Begam,32
where it has been held that the non mention of other subjects such as
adoption in respect of which a valid custom could govern and be binding
on the parties does not mean that it is not permissible for the parties to
rely on such a valid custom, if there is one. The Mysore High Court has
also followed the above mentioned view of the Madras High Court in
Hajee Abdul Sattar Sait v. Controller of Estate Duty.33 It cannot be said
that The Holy Quran prohibits adoption amongst Mohammedans in
absolute terms. And the custom of adoption amongst Mohammedans has
been held also the valid. Muslim Personal Law (Shariat) Application Act,
1937 does not abrogate the custom of adoption prevailing amongst
Mohammedans. The conclusion, therefore, is that the Holy Quran
nowhere prohibits adoption.

31

AIR 1956 Mad 244

AIR 1984 Mad 7
33 69 ITR 45. Reference may also be made to a Supreme Court's decision in Mohd.
Yunus v. Syed Unnisa,MR 1961 SC 809 wherein the apex court has considered the scope
of s. 2 of the Shariat Act.
32

56

In the landmark case of Abdul Hakim & others V. Gappu Khan,34 the
Rajasthan High Court has interestingly observed, that:
Besides the above decisions, which cover a period of 50
years, there is overwhelming oral evidence in support of the
custom of adoption among the Mahawats, which remains
unrebutted, and the several instances mentioned by the
defendants' witnesses were not negatived by the evidence led
by the plaintiffs.
Even in another case that of, Nenoo Khan v. Mst. Sugani35 it was held
by the same high court that by virtue of custom, Mohammedans might
also have system of adoption. In Mst. Bibi v. Syed Ali,36 the same high
court has considered the matter in detail and has come to the following
findings:

(i)

Adoption is, as a rule, not unknown to Muslim law.

(ii)

By virtue of custom Mohammedans may also have the system

of adoption.

(iii)

A Muslim who alleges that by custom he is subject of adoption

must prove it.

Thus, there is an overwhelming number decision to support the

contention that Mohammedan law recognizes adoption by custom.

34 SB CSA No. 115/1950 decided on 22.12 1954

35 1974 WLN (DC) 8.
36 S.B. SA No. 132/1990, decided on 12.9.1997.
57

3.3.5 UNDER MUSLIM LAW- DOCTRINE OF ACKNOWLEDGEMENT

OR IQROR
Putative or presumed father is not recognised under Muslim Law. It firmly
believes in the concept of filius nullis, which means, a son of nobody or
an illegitimate son who has no legal rights as a son in respect to the
inheritance of property. However, the doctrine of acknowledgement can
be used to establish legitimacy only when real paternity is possible. It is a
tool used under Muslim law to give legal status to the relationship. Thus
the acknowledged child must be at least 12 years 6 months younger than
the acknowledger. This represents minimum period of gestation added to
the minimum period of puberty.37
A father can acknowledge paternity if the following two conditions are:
(1)

child is of unknown paternity,

(2)

there is no definite proof that the child is the offspring of

whom

These principles are clearly rules of substance. In the Indian and Pakistani
context, therefore, the rules have not in any way been affected by the
Indian Evidence Act. The leading case is Muhammad Allahdad Khan v.
Muhammad Ismail Khan, where in the parties were Sunni Muslims.
Muhammad Allahdad Khan and his alienee Musammat Hakim-un-Nissa
brought a suit against Muhammad [small Khan. his three sisters, and
others, for a declaration of right to and possession of two shares in

37

A textbook on Muslim personal law By David Pear

58

villages left by one Ghulam Ghaus Khan, who was the father of
Muhammad Ismail Khan and his three sisters. Muhammad Allahdad Khan
asserted that he was the eldest son of Ghulam Ghaus Khan; thus he was
entitled

ID

shares in the estate in accordance with the Islamic laws of

inheritance. In reply, Ismail Khan and the three sisters contended that
Allatiadad Khan was no more than a step-son of Ghulam Ghaus.
According to Muhammad Allahdad Khan, even if he failed to prove that he
was the full son of Ghulam Ghaus, he argued that nonetheless Ghulam
Ghaus had acknowledged him as his child, which gave him the status of a
legitimate child. The latter argument found favour with the judge,
Mahmood J. A child born of zina (illicit sexual relations) can never be
legitimated, and is barred from inheriting from the father. Illegitimacy, in
those circumstances, is a proved and established fact, and no amount of
acknowledgement of the child can change the situation. Mahmood J
expressed the rule in the following manner.
The doctrine [of acknowledgement] applies only to cases of uncertainty as
to legitimacy, and in such cases acknowledgement has its effect, but that
effect always proceeds upon the assumption of a lawful union between
the parents of an acknowledged child. On (the basis of the facts in
Muhammad Aitohdad Khan's case, Mahmood J was able to hold that
the case presented all the conditions to which (acknowledgement is most
appropriately applicable; thus Allahdad Khan could inherit together with
the brother and the three sisters.

59

3.4

ISLAM ON EMERGENCE OF CHILD ADOPTION LAWS AND

TOLERANCE TOWARDS THE PRACTICE

Islamic regulations regarding adoption are distinct from western practices

and customs of adoption. Contrary to what happens in the western world,
a child does not formally leave his or her family to enter the one that
raises them. While raising someone elses child is allowed and even
encouraged in case of an orphan, the child does not become a child of the
new parents. This form of adoption where children retain membership to
their original family is called, in Arabic kafala. This implies for example
that the new father cannot name the son after him, and that the child is
counted as a non-Mahram. This can be sidestepped by having the child
suckling the adoptive mother in the first two years of life. An important
fact to keep in mind is that Muhammad himself was an adopted child;
Muhammad himself was fed by an adoptive mother during the first two
years of his life.
3.4.1 INTER-COUNTRY
CHILD ADOPTION: RESTRICTIONS
ISLAMIC COUNTRIES ACROSS THE WORLD

BY

As observed Islamic countries have restriction in child adoption. There are

countries like Afghanistan which does not recognise adoption altogether.
It is interesting to see that Iraq does not deem inter-country adoption at
all. Distinctive features of these countries are given under, as follows;
1.

AFGHANISTAN:

Islamic

law

does

adoption (Art. 228 of civil Code of 1980)

60

not

recognize

2.

BANGLADESH: Primarily Muslim country. Does not

permit adoptions of Muslims. Under Hindu law, Hindus
may adopt Hindu children. In order to obtain legal
custody of an abandoned child delivered to an adoption
agency, prospective adopting parents must apply to
District Judge under Section 8 of the Guardian and
Wards Act, 1890.

3.

IRAQ: Iraq does not permit the adoption of its

nationals by foreigners.

4.

ISRAEL:

Adoptions

are

strictly

controlled

by

the

Ministry of Social Welfare and the District Courts. Few

children are available to foreigners. The adoptive
parent(s) must be of the same religion as the child and
work through a licensed adoption agency.
5.
3.5

KUWAIT: Kuwaiti law has no provisions for adoption.

PAKISTANS LEGAL OBSERVATION ON CHILD ADOPTION

LAWS:

It will be recalled that Sun XXXIII, verse 37 abolished the pre-Islamic

custom of adoption whereby an adopted child could be assimilated in a
legal

sense

into

another

family,

it

can

be

suggested

that

the

acknowledgement of family of a person of unknown origin amounts, in a

way, to a form of adoption38 Moreover, there are some Muslim scholars
who argue that Sura XXXIII, verse 37 does not prohibit adoption, but
merely classifies it into the category of acts known as mubah - the acts
towards which religion is indifferent. Such arguments have not found
38

See for example the argument by J. Schacht. An introduction to Islamic Law (Oxford,
1964 reprinted Oxford, 1982) p. 166.
61

favour with the legislators in the by Moselle presumably under the

provisions of the Dissolution of Muslim Marriages An 1939.
Custody of the children was given to the petitioner. The husband,
however, kidnapped the children and took them to Karachi in Pakistan.
Contempt proceedings were drawn up in the Calcutta High Court against
Ahmad and he was sentenced in absentia and committed to prison.
Moselle then travelled to Pakistan, instituted a criminal proceedings under
Section 368 of the Pakistan Penal Code, and in addition. Filed a petition
for a writ of habeas corpus praying that the two children be brought
before the court and dealt with according the law. Although the petition
was not filed under the Guardian and Wards Act. The principles applied by
the court relate to the jurisdiction under the Guardian and Wards Act. For
in the result the court held that it was "improper to give the custody of
the two Muslim children to a Jewess mother who is an Indian national and
is residing in India".39 The preliminary problem was not raised by the
court. In Jewish law, children are presumed to follow the religion of the
mother. In Muslim law, the children are presumed to follow the religion of
the father.40 In Pakistan, the personal law governing the father is
certainly applied on grounds of public policy, but there is no reason why
in India, where the mother was both domiciled and a national, the law of
the father should be preferred to the law of the mother.

39 1957 PLD (WP) Karachi at p. 52.

40 Atia Varis v. Sultan Ahmad Khan 1959 PLD (WP) Lah 205 at p. 215. Under the law,
the minor must be presumed to have the fathers religion and corresponding civil and
social status.
62

3.6

CHILD ADOPTION LAWS PREVELANT

ENACTMENTS, RULINGS AND DECISIONS

IN

INDIA-

ACT,

1.

The Guardians and Wards Act, 1890

2.

The Hindu Adoption and Maintenance Act, 195

3.

The Constitution of India

4.

India ratified, The UN Convention on the Rights of Child,

1989, in 1992.

5.

Juvenile Justice Care and Protection of Children Act 2000

6.

Supreme Court issued guidelines in Landmark cases, like

Laxmikant Pandy.

3.6.1 THE GUARDIAN & WARDS ACT 1890 (GAWA)

Salient features of The Guardian & Wards Act 1890, herein after referred
as GAWA are as follows:

Applicable to Christians, Muslims, Parsis, Jews

Under GAWA, the relationship between the adoptive parents and the
adopted child is that of guardian and ward respectively.

Unlike HAMA, adoption under GAWA is not irrevocable and doest not
confer status of the child on the adopted child.

All the inter-country adoptions are processed in India under the

GAWA

Personal laws of Muslims, Christians, Parsis and Jews do not recognise

complete adoption. As non-Hindus do not have an enabling law to adopt
a child legally, the people belonging to these religions who are desirous of

63

adopting a child can only take the child in 'guardianship' under the
provisions of The Guardians and Wards Act, 1890. The statute does not
deal with adoption as such but mainly with guardianship. The process
makes the child a ward, not an adopted child. Under this law, when
children turn 21 years of age, they no longer remain wards and assume
individual identities. They do not have an automatic right of inheritance.
Adoptive parents have to leave whatever they wish to bequeath to their
children through a will, which can be contested by any `blood' relative.
The aforesaid enactments remain silent about the orphan, abandoned and
surrendered children. There was no codified legislation dealing with
the adoption of the children of these categories. As a result, several
misconceptions or irregularities appeared in respect of the custody,
guardianship or adoption of these types of children, which were prejudicial
to the interest of the children.
3.6.2 THE HINDU ADOPTIONS AND MAINTENANCE ACT (HAMA)
1956
There is no uniform Law in India that provides for the adoption by people
belonging to all religions. The only existing law on Adoption is The
Hindu Adoptions and Maintenance Act (HAMA) 1956, which provides for
adoption by Hindus only.
In the case of non- Hindus, the Guardians and Wards Act (GAWA) 1890 is
invoked to confer guardianship of children. Under this legislation, there is
no safeguard to the child's legal rights. And it does not provide the child

64

the same status as that of the child born to the family. This act confers
only a guardian-ward relationship. The reality is such that once the child
is 18, he/she can either walk out on the parents or vice versa. Such a
situation can have serious repercussions.
According to the Juvenile Justice Act, all States should formulate rules for
adoption and set up Child Welfare Committees41 to examine cases and
give "Legally free for adoption" clearance certificates, which alone can
authorize agencies currently nurturing children to endorse adoption
requests. Some other brief details about the law are as follows:

Applicable to Hindus, Jain, Buddhists and Sikhs.

Under Hindu Adoption & Maintenance Act, the adoption is

irrevocable and confers the full status of a child, including the
right to inherit on the adopted child.

Under HAMA, only one child of each sex can be adopted.

Parents cannot adopt child of a particular sex, it they already
have a or adopted child of the same sex.

3.6.3 CONSTITUTION OF INDIA

The Government of India is fully sensitized and committed to the rights
and welfare of children. The Constitution of India provides Fundamental
Rights

under

Chapter

III. These

41

rights

are

guaranteed

by

The primary objective of the Child Welfare Committee is to inquire into child rights violations, and care and protection of children. It is also vested with the responsibility of
issuing certificate of adoption to the Adoption Board.

65

the constitution. One of these rights is provided under Article 21 which

reads as follows:
No person shall be deprived of his life or personal liberty
except according to procedure established by law.

The main object of Article 21 is that before a person is deprived of his life
or personal liberty by the State, the procedure established by law must be
strictly followed. Right to Life means the right to lead meaningful,
complete and dignified life. It does not have restricted meaning. Thus
article 21 gives every child to live with dignity.
The Constitution of India under Article 24- Chapter on Fundamental
Rights of the Citizens provides the right against exploitation of the
children below 14 years.
Article 44 of the Constitution declares that:
The State shall endeavour to secure for the citizens a
Uniform Civil Code throughout the territory of India.
Therefore, religion specific nature of adoption laws should be scraped and
formation of a Uniform Civil Code should take place.
Article 45 of the Directive Principles of the State Policy in the Indian
Constitution envisages for free and compulsory education of children.
At the International level, India has ratified the Convention on the Rights
of Child and the Hague Convention on inter- country adoption of Children.

66

At national level, India has prepared a National Policy for children in 1974
under which Ministry of Social Justice and Empowerment (now known as
Ministry of Women and Child Development) has got the mandate to enact
laws regarding welfare of children.
The Juvenile Justice (Care and Protection of Children) Act 2000 is
a landmark in this regard.
In the Indian Constitution, there is a chapter entitled "Directive
Principles of State Policy," which sets out certain fundamental
obligations of the State. While they are fundamental in the governance of
the country, the provisions are not judicially enforceable. When the Indian
Constitution was drafted, the Constitution makers were aware of the
Universal Declaration of Human Rights, which contains certain civil and
political rights and, also social, economic and cultural rights.
By and large, the civil and political rights were incorporated in a chapter
of Fundamental Rights, which could be enforced judicially, while the
social, economic cultural rights were included in Directive Principles,
which are not judicially enforceable.
The following are the Directive Principles of State Policy to be
followed by the State for the welfare of the children:
Article 39 specifically requires the State to direct its policy:

67

To protect the health and strength of children and, to ensure that

they are not forced by economic necessity to enter vocations,
unsuited to their age or strength.

To ensure that children are given opportunities and facilities to

develop in a healthy manner and, in conditions of freedom and
dignity and, that their childhood and youth are protected against
exploitation and, against moral and material abandonment.

Article 45 requires the State to make provision for free and compulsory
education for all children until they complete the age of 14 years.
Adoption provides a very important function in Indian society. India has
long tradition of child adoption. In olden 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. What Government of India and State
Governments is providing necessary support and guidance through its
policies and programmes, the Non- Governmental Organizations (NGOs)
provide necessary delivery system for the process of adoption which is
above board and transparent.
The laws, ideals, and procedures governing inter-country adoption in
India, in terms of that nations role as a country of origin or sending
nation, are impressive. These laws, principles, and procedures are
generally consistent with the Hague Convention, even though India only

68

recently ratified the Convention, which entered into force on October 1,

2003.
3.6.4

THE JUVENILE JUSTICE

CHILDREN) ACT 2000

(CARE

&

PROTECTION

OF

The Juvenile Justice (Care & Protection of Children) Act 2000, hereinafter
referred as JJ, Act. Its salient features are as follows;

Applicable to all Indian Citizen

Allow adoption of two children of the same sex

Confers status of parents & child and not guardian and ward

Confers rights available to child on the adopted child.

The Juvenile Justice (Care & Protection of Children) Amendment

Act 2006
Juvenile Justice (Care and Protection of Children) Act 2000
The Juvenile Justice (Care and Protection of Children) Act 2000 is
designed for the care, protection, development and rehabilitation of
juvenile in conflict with law and child in need of care and protection, as
well as the adjudication and disposition of certain matters related to
them. This Act was enacted by Parliament to replace the J.J. Act 1986. It
provides a uniform legal framework of justice across the country, so as to
ensure that no child under any circumstances is lodged in jail or police
lock-up.
The Act covers children up to 18 years. The Act spells out the machinery
and infrastructure required for the care, protection, development and
rehabilitation of children.

Such machinery includes Juvenile Justice

69

Boards for the screening of juvenile in conflict with law and Child Welfare
Committees for the care and protection and treatment of child in need of
care and protection. Mention is also made of the need for development of
appropriate linkages between the formal system and voluntary agencies
to assist in implementing a diverse approach towards the recover, reeducation and rehabilitation of juveniles. The Act enables the competent
authority a wide range of disposition alternatives with preference to
family/community based placements.
3.6.5 IMPACT OF INTERNATIONAL CONVENTIONS ON CARA
It

is

generally

considered

progressive

law

in

accordance

with

international principles, such as the United Nations Convention on the

Rights of the child, to which India Government became a signatory in
1992. In signing the Convention, the Government accepted obligations to
bring all state laws and policies in the line with the main principles of
childrens rights, namely best interest, non-discrimination and childs
voice. Furthermore, in relation to the Administration of Juvenile Justice
system, Article 40 of the Child Rights Convention States. State Parties
recognize the right of every child alleged as accused of or recognized as
having infringed the penal law to be treated in a manner consistent with
the promotion of the childs sense of dignity and worth, which reinforces
the childs respect for the human rights and fundamental freedoms of
others and which takes into account, the childs age and the desirability to

70

promoting

the

childs

reintegration

and

the

childs

assuming

constructive role in society.

This Act has incorporated the provision of adoption of child as an
alternative to institutional care. Before the introduction of JJ Act, there
was no codified legislation dealing with the adoption of the children. Thus,
several misconceptions or irregularities appeared in respect of the
custody, guardianship or adoption of children, which were detrimental to
the interest of the children. Though at the initial stage the Juvenile Justice
(Care and Protection of Children) Act, 2000 did not contain these factors,
these are introduced in Juvenile Justice (Care and Protection of Children)
Amendment Act, 2006. The concept of adoption has been well defined in
Sec.2 (aa) of the said Act, which is as follows:

Adoption means

the

process

through

which

the

adopted child is permanently separated from his biological

parents and becomes the legitimate child of his adoptive
parents with all rights, privileges and responsibilities that are
attached to the relationship.

The Act introduced an expression child in need of care and protection

and it has been defined in Sec. 2 (d) of the Act. This definition covers
what is meant by orphan, abandoned and surrendered children.

71

3.6.6 REHABILITATION & SOCIAL REINTEGRATION FOR ORPHAN,

ABANDONED OR SURRENDERED CHILDREN:
The chapter IV of the Act deals with rehabilitation and social reintegration of children. The primary aim of rehabilitation and social
reintegration is to help children in restoring their dignity and self-worth
and mainstream them through rehabilitation within the family where
possible, or otherwise, through alternative care programmes and long
term institutional care shall be of last resort.
Sec. 40 of the J.J.Act provides that the rehabilitation and social
reintegration of a child shall begin during the stay of the child in childrens
home or special home, but as the family is the best option to provide care
and

protection

rehabilitation

for

and

children, adoption is
social

reintegration

the
of

first

orphan,

alternative
abandoned

for
or

surrendered children.
On implementation of JJ Amendment Act-2006 and its State Rules, all
cases of orphan, abandoned and surrendered children have to be
processed under the Act so that unrelated children have adequate
safeguards in their placement.
1.

Sishu Greh Scheme

The Scheme of Assistance to Homes for Children (Sishu Greh) to

Promote In-country Adoption has been in operation since 1992-93 to
promote

in-country adoption. The

72

Scheme

was revised w.e.f. 1st

April,2001 with the objective of bringing State Govt.-run-institutions

within its ambit so that all institutionalized children who are legally free
for adoption can find families within the country.
2.

ICPS

Integrated Child Protection Scheme of Ministry of Women and Child

Development is an intervention of holistic approach towards child
protection and rehabilitation.
3.

Legislation/Guidelines/directives
for adoption of
abandoned or surrendered children:

orphan

The following legislation, guidelines or directives are to be complied with

in respect of adoption of orphan, abandoned or surrendered children.
1.

Guidelines issued by Central Adoption Resource Authority time to

time based on the judgment of the Supreme Court on intercountry adoption in

Laxmikant Pandey v. Union of India &

others42 and subsequent judgments.

2.

Hague Convention on Inter-country adoption ratified by India in

2003.

3.

Juvenile Justice (Care & Protection of Children) Act, 2000 and

Central Model Rules promulgated under this Act.

Relevant provisions for Adoption under JJ Act, 2000 & Rules:

Sec.41 of J.J. Act, 2000 read with Rule 33(1) of Central Rules expresses
the following aspects of adoption:
42

[W.P. (Crl.) No. 1171/1982]

73

The primary aim of adoption is to provide a child who cant

be cared for by his biological parents with a permanent
substitute family. The family of a child has the primary
responsibility to provide him care and protection. Orphan,
abandoned or surrendered children can be adopted for their
rehabilitation through such mechanism as may be prescribed.
Such children may be given in adoption by a Court in keeping
with the provisions of several guidelines regarding adoption
issued by the State Govt. Central Adoption Resource Authority
and notified by the Central Govt. But the Court should be
satisfied with the investigation having carried out which are
required for giving such children in adoption. For placement
of

the

orphan,

abandoned

or

surrendered

children

for adoption in accordance with the said guidelines, the State

Govt. shall recognize in each district one or more institutions
or voluntary organizations as specialized adoption agencies.
The Childrens Homes and institutions run by the State Govt. or voluntary
organizations for children in need of care and protection who are orphan,
abandoned or surrendered, should ensure that these children are declared
free for adoption by the Committee (Child Welfare Committee) and such
cases shall be referred to the adoption agency of that district for their
placement in adoption.
The guidelines issued by the CARA and notified by the Central Govt. U/s
41(3) of the Act, shall apply for all matters relating to adoption.
Now, it is necessary to understand what Child Welfare Committee is.

74

As per Sec.2 (f) of the Juvenile Justice Act, 2000 the expression
Committee means a Child Welfare Committee constituted U/s 29 of the
Act. Now it is necessary to ascertain the meaning of Child Welfare
Committee.
4.

Child Welfare Committee

Sec. 29 of the Juvenile Justice Act, 2000 provides for the Child Welfare
Committee. The Committee has the sole authority to declare the child in
need of care and protection who are orphan, abandoned or surrendered
free for adoption.
CWC

shall determine

legal

status

of all orphan,

abandoned and

surrendered children. Functions and powers of the Committee, procedure

in relation to the Committee, production of child before committee,
procedure for inquiry, procedure related to orphan and abandoned
children and procedure related to surrendered children shall be governed
as laid down in the Juvenile Justice Amendment Act 2006 and its Rules.
On clearance from CWC that a particular childs free for adoption, there
will be termination of parental right.
5.

Criteria for the Child to be adopted

Sec.41 (5) of Juvenile Justice (Care & Protection of Children) Act,

2000provides that a child shall be offered for adoption on fulfillment of
the following requirements:

75

1.

In case of abandoned child, if two members of the Committee

declare the child legally free for placement.

2.

In case of surrendered child, if the period two months for

reconsideration by the parents is lapsed.

3.

In case of a child who can understand and express his

consent, if his/her consent is obtained in this regard.

6.

Child for Adoption- legibility

Sec. 41 (6) Juvenile Justice (Care & Protection of Children) Act, 2000 that
the court is empowered by Sec.41 of the Act to allow a child to be given
in adoption to the following persons:
I.

A person irrespective of his/her marital status,

II.

The parents to adopt a child of the same sex irrespective of

the number of existing biological sons or daughters.

III.
7.

The childless couples.

Need for Separate adoption cell or court where matter can be

heard

Prior to the amendment of the J.J. Act, 2000 the Juvenile Justice Board
was placed instead of the Court for allowing the child to be given
in adoption. However, the legislature has consciously amended the
expression Board and replaced it with the word Court in the J.J.
(Amendment) Act, 2006. So in case of adoption under the Juvenile Justice
Act, the petitions should be filed U/s 41 of the Act before the Court.

76

Now it is necessary to understand which court is specifically meant by the

said Act to deal with the adoption matters of orphan, abandoned and
surrendered children. Since the J.J. Act does not define the expression
court,

the

Model

Rules

framed

by

the

Central

Govt.

relating

to adoption should be taken to consideration.

According to Rule 33 (5) of the Central Rules under the said Act, the
Court

implies

civil

court,

which

has

jurisdiction

in

matters

of adoption and guardianship and may include the court of District Judge,
Family Court and City Civil Court.
But the provision of the said Rules empowering the Family court has been
subjected to several criticisms by judiciary. In the case of Manuel
Theodore DSouza [II (200) DMC 292] the Bombay High Court also
observed that the right to adopt being a fundamental right must be
capable of enforcement through the civil court as it falls within the ambit
of Sec. 9 of Civil Procedure Code. It was also opined that the District
Court or the High Court has the jurisdiction to deal with the question
relating to adoption as this court normally deal with the disputes
regarding custody, guardianship etc. of children. It was also held that
such applications can be filed before the District Courts exercising powers
under the Guardians & Wards Act and such applications for adoption of
the child by a guardian must be reckoned as a miscellaneous application
in the petition in guardianship.

77

Similar conclusion has been drawn by the Honble High Court of Kerala in
the recent case of Andrew Mendez & others v. State of Kerala
(2008). It minutely interpreted the expression Court in J.J. Act as well
as the jurisdiction of the Family Court as mentioned in the Central Rules
under J.J. Act and the Family Courts Act. As per Sec.7 (1) (g) of the
Family Courts Act, the Family Court has the powers/jurisdiction to deal
with the question of guardianship. So the question arises whether claim
for adoption can be brought under any sub-clauses (a) to (g) of Sec.7 (1)
of the Family Courts Act so that the Family court must be the court for the
purpose of Sec.41 (6). Similar type of question arose in the case of Vinod
Krishnaan v. Missionaries of Charity [1997 (2) KLT 863] where the
Division Bench of Kerala High Court held that the Family Court cant be
clothed

by

the

stipulations

in

Sec.

7(1)

to

deal

with

claim

for adoption U/s 9(4) of Hindu Adoption & Maintenance Act.

It is only the District court having the jurisdiction to entertain such
application. Following this observation the Kerala High Court in Andrew
Mendezs case opined that Sec 7(1) (g) is not sufficient to clothe the
Family

Court

with

the

jurisdiction

to

consider

an

application

for adoption by reckoning the same as incidental to guardianship and

custody. Another important point was raised in this case, i.e., Sec. 7(2)
(b) of Family Courts Act declare that the Family court shall also have and
exercise such other jurisdiction as may be conferred on it by any other
enactment. Though J.J. Act is an enactment, it doesnt certainly states

78

that Family Court shall be the court for the purpose of Sec. 41(6). On the
contrary, the Central Rules promulgated U/s 68 of the J.J. Act confers
such jurisdiction on Family Court, but it does not fall within the ambit of
enactment as explained by the High Court in the aforesaid case.
Consequently it was concluded by the Kerala High Court that the Family
Court

does

not

have

jurisdiction

to

entertain

an

application

for adoption by a guardian U/s 41 (6) of J.J. Act and it cant be held to be
the court U/s 41(6). It is only the District Court, which can have
jurisdiction to entertain such application U/s 41(6) of Juvenile Justice Act,
200 read with Rule 33(5) of the Central Rules.
8.

Procedure for adoption

Procedure in case of orphaned and abandoned children:

The

Specialized Adoption Agencies

abandoned

children

who

shall

are

to

produce
be

all

declared

orphaned

and

legally

free

for adoption before the Committee within 24 hours of receiving such

children, excluding the time taken for journey. A copy of the report should
be filed with the police station in whose jurisdiction the child was found
abandoned.
A Child becomes

eligible

for adoption when

the

Committee

declares

the child legally free for adoption after completion of its inquiry. Such
inquiry should be conducted by the Probation Officer or Child Welfare

79

Officer, who shall produce report to the Committee containing the findings
within one month.
The Specialized adoption agency shall declare stating that there has been
no claimant for the child even after making notification in at least one
leading national newspaper and one regional language newspaper for
children below two years of age and for children above two years, an
additional television or radio announcement and notification to the
missing persons squad or bureau shall be made.
9.

Time stipulation

In case of abandoned child below two years, such a declaration shall be

done by CWC within a period of sixty days from the time the child is
found. For an abandoned child above two years of age, such a declaration
shall be done within the period of four months.
A child must be produced before the Committee at the time of declaring
him/her legally free for adoption. Subsequently, the child shall be placed
in a specialized adoption agency or recognized and certified childrens
home or in a pediatric unit of a Govt. hospital followed by production of
the child before the Committee within 24 hours.
No child above seven years of age who can understand and express his
opinion shall be declared free for adoption without his/her consent.
Procedure in case of surrendered children:

80

A surrendered child is one who has been declared as such after due
process of inquiry by the Committee and in order to be declared legally
free for adoption, a surrendered child shall be any of the following:
1.

Born as a consequence of non-consensual relationship

2.

Born of an unwed mother or out of wedlock

3.

Whose one of the biological parents is dead and the living

parent is incapacitated to take care

4.

A child whose

parents

or

guardians

are

compelled

to

relinquish him/her due to physical, emotional and social

factors beyond their control.
The Committee shall give effort for counseling of the parents, explaining
the consequences of adoption and exploring the possibilities of parents
retaining the child and if the parents are unwilling to retain, then such
children shall be kept initially in foster care or arranged for their
sponsorship.
If the surrender is inevitable, a deed of surrender shall be executed on a
non-judicial stamp in presence of the Committee.
Time

stipulation:

In

case

of

surrendered child,

two

months

reconsideration time shall be given to the biological parent or parents

after surrender before declaring the child legally free for adoption.

81

3.6.7 PROACTIVE ROLE OF JUDICIARY: CARA AND ITS FUNCTIONS

The foreign adoption system outlined by the Indian Supreme Court had
been largely based on those developed locally within certain parts of
India. Nonetheless, the Supreme Courts activism led to the development
and coordination of a national system for foreign adoption. The Central
Adoption Resource Agency (CARA), proposed by the Court, was created
on June 28, 1990, under the aegis of the Ministry of Welfare in
pursuance of Cabinet decision. CARA was designed to deal with all
matters concerning adoption, as in the Government of India all matters
related to adoption shall be dealt with in the Ministry of Welfare.The
directions of the Indian Supreme Court were codified into CARA
guidelines.

CARA perceives itself as having a principle aim is to

encourage in country adoption, while also being engaged in clearing

inter country adoption of Indian children.
Under CARA regulations, Indian agencies must receive recognition by
CARA in order to either give a child to foreign parents for the purpose of
adoption or to submit an application to an Indian court under the
Guardians and Wards Act, 1890, for declaring a foreigner as a guardian of
an Indian child. Indian agencies involved in foreign adoption also should
be licensed by the State under the provisions either of the Women and
Children Institutions (Licensing) Act, 1956 or

the Orphanages or

Charitable Institutions (Supervision and Control) Act, 1960. In addition,

Indian agencies applying for recognition from CARA should have the

82

recommendation of their state government for such work, although CARA

may override a States refusal to recommend.
CARA also grants enlistment of foreign agencies, and effectively
determines which foreign agencies may sponsor applications of foreign
adoptive parents for adopting an Indian child. Both foreign agencies and
Indian agencies should be run on a non-commercial, non-profitable
basis. CARA approves all foreign adoptions, as its regulations require the
recognized Indian agency to apply to CARA for getting a clearance for
the child. Approvals by CARA of specific placements are called No
Objection Certificates (NOC). Indian courts cannot grant guardianship
to foreign parents unless CARA has first granted the NOC, with the
possible exception of circumstances where CARA has failed to respond to
the application within the time limit specified in the guidelines.
In addition, CARA guidelines implement the Supreme Courts directions
for Voluntary Coordinating Agencies (VCA). Local VCAs are responsible
for promoting adoption within India, and for issuing an NOC when efforts
to place the child within India have been unsuccessful. The various local
VCAs are themselves required to

seek recognition from CARA by means

of an application which shall be routed through the State Government.

The VCA review and issuance of an NOC precedes CARA review, and
provides CARA with evidence that sufficient efforts to place a child within
India were made. CARA guidelines similarly reflect the Supreme Courts

83

instructions regarding scrutinising agencies. The scrutinising agency

is appointed by the local court reviewing the guardianship petition. The
Indian Council for Social Welfare and the Indian Council of Child Welfare
may serve as scrutinising agencies; local courts may also appoint other
entities as scrutinising agencies from those recognized by CARA for this
purpose. Scrutinising agencies should not be involved in the placement
of children in adoption.Scrutinising agencies review all facets of the case,
including issues pertaining to the voluntariness of the surrender of the
child and the accuracy of the child study form. Additionally, they ensure
that adoptive parents are really interested in accepting special needs
and older children and guard against illicit profiteering. Also, they ensure
proper clearances by VCA and CARA and determine whether the adoption
is in the best interests of the child. Scrutinising agencies may charge
for their review, with the ordinary rate. Although CARA plays a
comprehensive regulatory role in relation to the other actors in Indian
adoption, CARA has not fulfilled the Supreme Courts expressed wish that
it match prospective adoptive parents with Indian agencies and available
children. The Supreme Court of India had envisioned a system in which
foreign agencies initiated their contacts with CARA, who in turn matched
them with Indian agencies.

Instead, foreign agencies and prospective

adoptive parents generally make direct contact with Indian orphanages,

which subsequently seek CARA approval for specific placements.

This

direct contact between foreign and Indian agencies in arranging specific

adoptions

has

been

mixed

blessing,

84

simultaneously

creating

opportunities for initiative, efficiency, and corruption. A system in which

all placements were based on matches or referrals made by CARA could
have created a logjam at the centre of the system and would only have
avoided corruption if CARA itself had proven incorruptible.
A)

Programme
functions

Development

and

Monitoring

Cell

Major

The PDM Cell was established in 1998 with functions like implementation
and monitoring JJ Act, developing UNICEF assisted programme, their
implementation and monitoring, organization of seminars / workshops /
orientation training, policy development and programme formulation for
all

categories

of

children

developing

integrated

programme

for

rehabilitation of women in distress, providing help line, monitoring and

implementation of child right Conventions and extending child line
services to major cities.
Its Objectives:
1.

Conducting programme for street children.

2.

Setting up of regional level training center

3.

Computer installation in JJ institutions

4.

Setting up of child line in 9 districts

The Government of India has published the new juvenile justice (care and
protection of children) Act, 2000 w.e.f.1/4/2003 and its State Rules have
been published on 4/8/2003. As part of the implementation of J.J. Act the
Department is organizing various training/awareness programmes on JJ
Act and CRC Programmes for street children programme for trafficking

85

and commercial sexual exploitation of children, rehabilitation measures

/continuing education for Juvenile probationers and ex-pupils etc are
other programmes under PDMC.
B)

Major functions of the Cell are as follows:

1.

Implementation and monitoring of JJ, Act.

2.

National and state level programmes implementation and

monitoring.

3.

Developing UNICEF assistance programmes, implementation

and monitoring.

4.

Policy

development

categories

of

and

children,

programme
especially

formulation
children

in

for

all

difficult

circumstances children without family support.

5.

Programme development and support to state government for

formulation and effective implementation of programmes and
services for children.

6.

Creation of awareness programmes on JJ,Act & CRC.

7.

Organization of consultations/seminars/workshop/training.

8.

Conducting reviews on implementation of programmes by

central and state government and NGOs.

9.

Training

of

the

functionaries

such

as

judiciary,

police,

chairman and members of JJ Board, Child Welfare Committee,

Staff of JJ Institution Probation Officers, Social Workers and
NGOs.
10.

Implementation of Street Children Programme.

86

11.

Protection of children affected by violence and children

affected by cyber crimes.

12.

Care and protection of children affected by HIV and children of

HIV patients.

3.7

13.

Prevention of Child Begging.

14.

Implementation of child line programmes.

Agencies Providing Child Adoption Services

43

For safe guarding interest and welfare of child, Government of India has
recognized the following agencies for Adoption.

Indian Placement Agencies in different State

- 73

Foreign Placement Agencies Enlisted

- 254

Adoption Co-coordinating Agency in India

in different States

- 13

Scrutiny Agencies in different States

43

- 13

Child Adoption Policies in India- A Review Paper presented by A.S. Shenoy, Chair, International Relations Committee, Indian Council of Social Welfare, Mumbai - 1st International Conference on Inter- country Adoption organized by Child NGO Federation- Nepal
at Katmandu, Nepal on 10th, 11th and 12th March 2007.
87