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Adoption can be defined as an act by a person through which he takes a child from his biological family or natural parents or an orphan to his family and treats him as his own. Adoption as a concept has been in practice since ancient times and exists in various legal systems and personal laws.

ADOPTION UNDER VARIOUS RELIGIONS

·       HINDU LAW

Under the ancient Hindu Law, adoption was considered a sacrament. The presence of a son was crucial for the attainment of moksha by the male members. Thus, ancient Hindu law only allowed of adoption of males.

In present time, adoption under Hindu law is governed by Hindu Adoption and Maintenance Act, 1956. This act applies to all Hindus as defined by Section-2 of it. This Act provides for conditions for valid adoption-

1.     Person adopting is capable of adoption

2.     Person giving for adoption is capable of giving for adoption

3.     The person given for adoption is capable of being adopted

A Hindu male is capable to adopt if he is of sound mind, a major and capable of taking a son or daughter in adoption. If he has a wife, then the consent of the wife is important for adoption. However, the consent of the wife is not required if she is mentally unsound or has given up the world or given up Hinduism as a religion.

A Hindu female is capable of adoption on the same conditions as a Hindu male, provided that she is unmarried. However, if she is married then she cannot adopt only her husband can adopt. As an exception, she can adopt a child if she is married if her husband is mentally unsound or if he has given up the world or given up Hinduism as a religion.

A father, mother or guardian of a child can give him/her up for adoption. The parents cannot give the child for adoption without the consent of each other unless the other is mentally unsound or has given up the world or given up Hinduism as a religion.

The court while granting permission for adoption will ensure that there is no pecuniary benefit in exchange for adoption.

No one can be adopted unless they are either:

1.     Hindus;

2.     Not already adopted

3.     He or she has never been married, unless the parties are subject to a tradition or usage that allows married people to be adopted;

4.     Unless there is a tradition or usage that applies to the parties and allows people who have reached the age of fifteen to be adopted in adoption, the child has not attained the age of fifteen years.

Other prerequisites for a legal adoption have to be met, that are-.

a)     If a son is being adopted, the adoptive parent who is making the adoption must not have a Hindu son, son's son, or son who was alive at the time of adoption of son

b)    If the adoption involves a female, neither the adoptive father nor the adoptive mother may be the living parent of a Hindu daughter or son's daughter at the time of the adoption;

c)     If the adoptive father is a man and the adoptee is also a man, the adoptive father is at least 21 years older than the adoptee;

d)    The adoptive mother must be at least twenty-one years older than the adoptee if the adoption is between a female and a male;

e)     A child cannot be adopted by two or more parents at the same time.

·       MUSLIM LAW

The Muslim Law does not recognize adoption in any aspect. There exists only the concept of acknowledgment under Muslim Law. However, Muslims can adopt a child from the orphanage after taking permission from the court under the Guardians and Wards Act, 1890.

·       PARSI AND CHRISTIAN LAW

The personal law of these religions also does not recognize adoption. The adoption under these religions is also governed by the Guardians and Wards Act, 1890.

THE GUARDIAN AND WARDS ACT, 1890.

This legislation is a secular law for Non-Hindus i.e. Muslims, Christians, Parsis and Jews. This act does not give a child into adoption but creates a Guardian-Ward relationship between the child and them. This relationship ceases to exist after the child attains the age of 21 years. Unlike the Hindu Adoption and Maintenance Act of 1956 this act does not deem the child to be biologically born in the family of adoption. This means the child is not entitled to inheritance or taking the Family name.

This act also allows Foreigners to adopt children from India. They assume legal guardianship of the child under this act on the condition that they will legally adopt the child according to the law of their country within 2 years of guardianship.

INTERNATIONAL LAW RELATED TO ADOPTION

·       The Massachusetts Adoption of Children Act, 1851

·       New Zealand’s Adoption of Children Act, 1881.

·       UN Convention on the Protection of Children and Cooperation in Respect of Inter-Country Adoption.

These are some of the earliest enactments that dealt with adoption in different countries.

RECENT DEVELOPMENTS REALTED TO ADOPTION

The National Commission on Women in India has recently emphasised the importance of a standard adoption law. Because the Guardians and Wards Act of 1890 establishes the father's right as preceding the mother's in guardianship, the commission focused on this specific issue. There is also a need for a Secular Law that will allow adoption under all religions of all children irrespective of their religion. The Juvenile Justice Care and Protection Act, 2000 provides for adoption but in a different context as compared to Hindu Adoption and Maintenance Act, 1956.

SHABNAM HASHMI v. UNION OF INDIA (2014) 4 SCC 1

According to the ruling in the case, the Supreme Court of India decided that all national laws and religious regulations would not have any bearing on a person's ability to adopt a child in accordance with the Juvenile Justice Act's provisions. However, the three-judge panel, which was comprised of Chief Justice P. Sathasivam, Justice Ranjan Gogoi, and Shiv Kirti Singh, insisted that until the goal of a Uniform Civil Code is realised, any person who chooses to submit himself would be subject to personal laws. The Honorable Court added that no one was required to adopt or adopt a child and that adoption was a personal decision. The Juvenile Justice Act of 2002, as it stands, defines adoption in section 2(aa). This law grants the adoptive parents and child the rights, advantages, and obligations associated with a typical parent-child relationship.

CONCLUSION

With the passage of time, adoption has undergone numerous transformations as a social institution. The idea of adoption and its goals have frequently undergone significant alteration. Prior to recent changes, adoption in Hindu law had a religious motivation. The Hindu Law is the sole personal law that permits adoption in India. If a person other than Hindu wants to adopt then he has to apply to the court for adoption in accordance with the Guardians and Wards Act of 1890 because other personal laws, such as Muslim Law and Christian Law, do not contain adoption provisions.