Adoption is a legal process that creates a parent-child relationship between individuals who are not biologically related. In India, this process is governed by specific laws that cater to the cultural and religious diversity of the country. The Hindu Adoptions and Maintenance Act, 1956 (HAMA), is one such law that governs the adoption process for Hindus, while the Juvenile Justice (Care and Protection of Children) Act, 2015, applies more broadly. Despite the provisions of HAMA, there is a notable gap in its application to inter-country adoptions, which has been brought to light by a recent directive from the Delhi High Court.
Understanding the Hindu Adoptions and Maintenance Act, 1956
The Hindu Adoptions and Maintenance Act, 1956, is specific to individuals who follow Hinduism, including Buddhists, Jains, and Sikhs. This act outlines the legal framework for adoption within these communities and also details the obligations regarding the maintenance of family members. It establishes eligibility criteria for both adoptive parents and children, ensuring that adoptions occur in a manner that protects the welfare of the child. Under HAMA, adopted children have the same rights and duties as biological children, which includes inheritance rights.
Eligibility and Conditions for Adoption under HAMA
To adopt under HAMA, certain conditions must be met. An adoptive parent must be a Hindu and of legal age; if married, the consent of the spouse is generally required. Additionally, a man can adopt a female child only if there is an age difference of at least 21 years, and similarly, a woman can adopt a male child with the same age difference requirement. The act also stipulates that the child being adopted should be actually given and taken in adoption with the intent to transfer the child from the family of birth to the family of adoption.
Limits of HAMA in Inter-Country Adoption
Currently, HAMA does not have a permanent mechanism in place to facilitate direct inter-country adoptions. This means that non-resident Indians or individuals of Indian origin living abroad face challenges when seeking to adopt a child from India under the provisions of HAMA. The lack of a structured system for such adoptions has led to complications and delays, prompting the need for clear guidelines and processes.
Recent Developments and the Role of the Delhi High Court
The absence of a clear system for inter-country adoptions under HAMA was highlighted when the Delhi High Court took cognizance of the issue. The court directed the Ministry of Women and Child Development to look into the matter and report back within two months. Furthermore, the Central Adoption Resource Authority (CARA), which is the nodal body for regulating both in-country and inter-country adoptions in India, was ordered to act in accordance with the provisions of HAMA. This step by the judiciary indicates a move towards addressing the legal vacuum and establishing a more robust framework for inter-country adoptions for Hindus.
The Role of the Central Adoption Resource Authority (CARA)
CARA, an autonomous body under the Ministry of Women and Child Development, primarily operates under the guidelines and provisions of the Juvenile Justice Act. It oversees all adoption procedures and ensures they are carried out ethically and in the best interest of the child. With the Delhi High Court’s order, CARA is now expected to formulate or amend existing regulations to include HAMA-based inter-country adoptions. This development could streamline the process and provide clarity to prospective adoptive parents from the Hindu community living abroad.
The issue of inter-country adoption under HAMA is complex and requires careful consideration to balance the legal, cultural, and humanitarian aspects involved. The directive from the Delhi High Court is a significant step towards creating a more inclusive and functional adoption system for Hindus, both within India and internationally. As the Ministry of Women and Child Development and CARA work on this directive, the hope is that the outcome will facilitate smoother and more legally sound adoption processes for all parties involved.
