Right of Adoption to all religious communities: A Constitutional perspective

Post published:July 18, 2021
Post category:Blog
Reading time:9 mins read

Right of Adoption to all religious communities

Written By: Fiza Firdaus Ansari

Children are considered a bundle of joy and on whom the future of the country depends. While on one hand children born in India are being pampered, taken care of, and given all the necessaries for their all-rounder development, on the other hand, there are over 60000 children being abandoned but here in India in some cases, these children became victims of human trafficking and sexual violence. In fortunate cases, the abandoned children are taken to any adoption agency and may hope for a better life while waiting to get adopted.

Adoption In English Law

The English law started recognizing during the latter half of the nineteenth century. Legal adoption came into existence only during 1926. The purpose of this Adoption Act was to prevent the biological parents from claiming back their children. A more comprehensive Act was passed in 1950. This Act was modified in the year 1958.

English law of adoption is very similar to the Hindu Law of adoption inasmuch as that it lays down that the adopted child, for all intents and purposes, becomes like a natural child and the child’s ties with his natural family are severed.

The custom and practice of adoption in India date back to ancient times. Although the act of adoption remains the same, the objective with which this act is carried out has differed. It usually ranged from the humanitarian motive of caring and bringing up a neglected or destitute child, to a natural desire for a kid as an object of affection, a caretaker in old age, and an heir after death. But since adoption comes under the ambit of personal laws, there was has not been a scope in the Indian scenario to incorporate a uniform law among the different communities which consist of this melting pot.

Hence, this law is governed by various personal laws of different religions. Adoption is not permitted in the personal laws of Muslims, Christians, Paris’s and Jews in India. Hence, they usually opt for guardianship of a child through the guardian’s and wards Act, 1890.

Indian Citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a child. The adoption is under the Hindu Adoption and Maintenance Act of 1956 that was enacted in India as a part of the Hindu Adoption and Maintenance Act of 1956 that was enacted in India as a part of the Hindu Code Bills. It brought about a few reforms that liberalized the institution on adoption.

Hindu Law And Adoption

Hindu law is the only law in India that treat and a doctor Jain as being equal to a natural-born child. The reason for this is mostly because of the belief that a son was indispensable for the spiritual as well as material welfare of the family but it is significant to note here that this role as a “deliverer of hell” was only limited to the son.

Under the old Hindu law, only a male could be adopted and often could not be adopted the even if that mail was to be adopted restrictions what imposed based on caste and good run a female child could not be adopted under the Hindu law. Under the old Hindu law, only the male has a right to adopt and the consent or dissent of his wife to the proposed adoption was immaterial. But such restrictions have changed in the course of time said gender biases have been minimized in today’s modern society. Under the more than in do law every Hindu male or female has the capacity To make an adoption provided he or she has attained majority and are of sound mind most of these laws rules and regulations have been enumerated in the Hindu adoption and maintenance act of 1956.

Hindu Adoption And Maintenance Act, 1956

The Hindu adoption and maintenance Act was passed after independence as part of modernizing and codifying Hindu law. The act to some extent the flecked the principles of equality and social justice by removing several thoughts, not all gender b’s discriminatory provisions. This Act deals with topics such as the capacity to adapt, the capacity to give in adoption, the effect of adoption, gender bias, and such others.

Capacity to Adopt: In this app, it is said that any adult in does male who is Of sound mind and adopt a child. If the said man is married, the consent of the device is necessary. likewise, a female adult Hindu of sound mind could adopt a child if she:-

Unmarried
Divorced
Widowed or
Her husband suffers from certain disabilities
Cased to be a Hindu
Has renounced the world
Has been declared to be of unsound mind by the court.

Capacity to give in adoption:- Section 9 of this act States that only the father, the mother, or the guardian can make the decision of giving a child adoption. The father can give the child in adoption only with the consent of the mother, unless the mother has ceased to be a Hindu, has renounced the world, or is of unsound mind. The mother may give the child adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

Effect of adoption:- When once a child has been adopted that child severs all ties with his natural family. All the rights and obligations of natural bond children fall on him. The wife of a Hindu mail, who adopts is deemed to be the adoptive mother. Where adoption is made with the consent of more than one wife, the senior-most in marriage is deemed to be the adoptive mother and the rest are given the title of stepmothers. All laws relating to the adoptive parents and/or stepparents can be seen in sections 12, 13, and 14 of the Hindu maintenance and adoption act of 1956.