Definition
Legal process of taking another person's child as one's own.
Creation of a legal parent-child relationship between the adoptive parent and adopted child with full legal consequences.
Statutory Definition
Hindu Adoptions and Maintenance Act, 1956; Juvenile Justice (Care and Protection of Children) Act, 2015 (secular adoption).
Etymology & Origin
From Latin 'adoptio' (a choosing to be one's own — from 'adoptare', to choose for oneself, adopt — 'ad', to, and 'optare', to choose, wish). 'Adoption' is literally a 'choosing' — the deliberate act of choosing to make another person's child one's own, as if by birth.
Full Legal Analysis
Adoption is the legal process by which a person (the adoptive parent) takes a child who is not biologically their own and creates a legal parent-child relationship with full legal consequences — the adopted child becomes the adoptive parent's legal heir, loses all rights in the biological family of origin, and is treated in law as if born to the adoptive parent. In India, adoption is governed by different laws depending on religion: (1) Hindus, Buddhists, Jains, and Sikhs — governed by the Hindu Adoptions and Maintenance Act, 1956 (HAMA); (2) Persons of all religions seeking to adopt from Government-recognised child welfare institutions — governed by the Juvenile Justice (Care and Protection of Children) Act, 2015 read with the Adoption Regulations, 2017 (CARA framework); and (3) Muslims, Christians, and Parsis — do not have a personal adoption law; they may only 'foster' a child or adopt under the JJ Act framework.
Four conditions for a valid adoption under HAMA 1956: (1) The person giving in adoption must be legally capable of doing so (Section 9 — father, mother, or guardian); (2) The person adopting must have the capacity and the right to adopt (Section 7 — Hindu male; Section 8 — Hindu female); (3) The person adopted must be capable of being adopted (Section 10 — child not already adopted, under 15 years of age for boys and girls under 15 unless custom permits, Hindu); and (4) There must be an actual giving and taking in adoption — a formal ceremony.
The Supreme Court held that the JJ Act's adoption framework (now the JJ Act 2015 and CARA Adoption Regulations) provides a secular and inclusive adoption mechanism available to all persons regardless of religion, including Muslims, Christians, and Parsis. The Court held that the right to adopt and the right to be adopted are facets of the right to life under Article 21 of the Constitution. However, the Court stopped short of declaring a universal right to adopt for all religions, making the JJ Act route available but leaving personal law unchanged. Muslims can adopt through the JJ Act even though Muslim personal law does not recognise adoption.
Effect of adoption: the adopted child becomes a full legal member of the adoptive family — inheriting from the adoptive family and losing inheritance rights in the biological family (Section 12 HAMA). The child's ties with the biological family are severed — except for the prohibition on marriage within degrees of prohibited relationship with biological family members (blood relationships are maintained for the purpose of the incest prohibition). The adoptive parent has all the duties of a parent including maintenance, education, and guardianship.
For advocates, adoption matters involve: (1) HAMA adoption disputes — validity challenges (capacity of adopter, conditions met?); (2) CARA adoption proceedings — for inter-country adoption or adoption from child welfare institutions; (3) guardianship vs adoption — clarifying the legal effect of a GWA guardianship order vs a HAMA adoption; (4) inheritance disputes — where the validity of an adoption is challenged by biological family members of the adoptive parent; and (5) immigration — where a person has adopted a child under Indian law and seeks to sponsor the child's immigration to another country, the validity of the adoption under HAMA or the JJ Act framework must be established.
This Term in Indian Statutes
Hindu Adoptions and Maintenance Act, 1956, 1956
"An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family."
Shabnam Hashmi: JJ Act secular adoption available to Muslims; four HAMA conditions; Section 12 severs biological ties; guardianship vs adoption distinction; CARA framework for institutional adoption
