Adoption in India: Judicial and Non-Judicial Processes

Q: What are the main differences between HAMA and JJ Act adoption?

The HAMA applies to Hindus, Buddhists, Jains, and Sikhs, allowing a non-judicial process using an adoption deed. It doesn’t require CARA registration or court intervention unless disputed. The JJ Act , on the other hand, is secular and requires judicial approval, CARA registration, and a home study assessment. HAMA allows adoption of specific gender-based preferences and children under 15 years, while the JJ Act allows adoption of children across age groups, provided they are legally free for adoption. The JJ Act ensures greater regulatory oversight, prioritizing orphaned, abandoned, or surrendered children’s welfare. Both ensure legal recognition of adoption.

Adoption is a life-changing process that allows individuals or couples to legally become the parents of a child. In India, the legal framework for adoption is primarily governed by two statutes: the Hindu Adoption and Maintenance Act, 1956 (HAMA), applicable to Hindus, and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), which applies to individuals from all other religions. These laws provide distinct pathways for adoption, either through judicial or non-judicial processes.

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Adoption Under the Hindu Adoption and Maintenance Act, 1956

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The HAMA is a personal law applicable to Hindus, Buddhists, Jains, and Sikhs. It allows adoption to be carried out through a non-judicial process, provided the requirements under the Act are fulfilled. Key provisions include:

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Eligibility of the Adopter: A Hindu male or female can adopt, provided they are of sound mind, are not minors, and fulfill specific marital requirements. A married man can adopt only with the consent of his wife unless she has renounced the world, is of unsound mind, or is deceased.
Eligibility of the Child: The child must be under 15 years of age, unmarried, and should not already be adopted.
Legal Formalities: The process involves executing an adoption deed, which must be registered. This deed ensures that all parties—adoptive parents, biological parents, and the child—agree to the adoption.
Irrevocable Adoption: Once completed, adoption under HAMA is final and irrevocable. The child gains all rights and responsibilities akin to a biological child of the adoptive family.

Adoption Under the Juvenile Justice Act, 2015

The JJ Act provides a judicial process for adoption that is open to individuals of all religions. This Act emphasizes the welfare and best interests of children who are orphaned, abandoned, or surrendered. The procedure under this Act involves the following steps:

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Eligibility of the Adopter: Prospective adoptive parents must meet age, marital, and financial stability criteria set by the Central Adoption Resource Authority (CARA).
Eligibility of the Child: Children declared legally free for adoption by the Child Welfare Committee (CWC) can be adopted under the JJ Act.
Registration: Prospective parents must register on CARA’s online platform and complete a home study assessment conducted by an authorized agency.
Referral and Matching: Based on the adopter’s preferences, CARA matches them with eligible children. After approval, the adoptive parents can proceed to court.
Judicial Procedure: Adoption is finalized through a court order, ensuring that all legal requirements have been met and the child’s welfare is prioritized.

Key Differences Between HAMA and JJ Act

Applicability: HAMA applies exclusively to Hindus, while the JJ Act is secular.
Process: HAMA allows non-judicial adoption through a deed, whereas the JJ Act requires judicial oversight.
Child Eligibility: Under HAMA, the child must be unmarried and below 15, but the JJ Act allows adoption of children across various age groups, provided they are declared free for adoption.

Conclusion

Adoption in India is a carefully regulated process aimed at safeguarding the welfare of children. Whether through HAMA or the JJ Act, the legal framework ensures the child’s best interests are met. While HAMA offers a straightforward non-judicial process for Hindus, the JJ Act provides a comprehensive judicial route for all, reflecting India’s commitment to creating nurturing homes for children in need.

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Frequently Asked Questions(FAQ'S)

Who can adopt under the Hindu Adoption and Maintenance Act, 1956?

Under HAMA, any Hindu, Buddhist, Jain, or Sikh of sound mind, not a minor, can adopt. A married man needs his wife’s consent unless she is deceased, of unsound mind, or has renounced the world. A woman can adopt if unmarried, widowed, divorced, or if her husband meets the above conditions. The adopter must have no prior child of the same gender unless adopting for a specific purpose, like extending the family lineage. The adoptive parent must comply with the law’s procedural requirements, such as executing a valid adoption deed and registering it to make the adoption legally binding.

What is the procedure for adoption under HAMA?

The process involves a non-judicial route, primarily executing an adoption deed between biological and adoptive parents. The deed must state mutual consent, adherence to legal conditions, and the welfare of the child. It is then registered to validate the adoption. There is no involvement of the court unless a dispute arises. The adopted child is treated as a biological child, gaining all rights, including inheritance, in the adoptive family. This simple process is exclusive to Hindus and does not require registration with CARA, unlike adoption under the Juvenile Justice Act.

Who is eligible to adopt under the Juvenile Justice Act, 2015?

The JJ Act permits individuals of any religion, whether married or single, to adopt, provided they meet criteria like age, marital status, and financial stability set by CARA. Single men can adopt boys but not girls, while single women can adopt children of either gender. Prospective parents must register on CARA’s online platform, complete a home study assessment, and follow the judicial process. The JJ Act emphasizes the best interests of the child and ensures adoptive parents are suitable through a stringent evaluation and approval process. This law applies to orphaned, abandoned, or surrendered children declared legally free for adoption.

How is adoption finalized under the JJ Act?

Adoption under the JJ Act is finalized through a judicial process. Once prospective parents register on CARA’s platform and are matched with a child, they apply for legal adoption through the appropriate court. The court reviews the adoption petition, ensuring all eligibility criteria, procedures, and safeguards are followed. A final adoption order is issued if the judge is satisfied that the adoption is in the child’s best interest. This order provides the adoptive parents with full parental rights and responsibilities, and the adopted child gains all legal rights, including inheritance, in the adoptive family.

What are the main differences between HAMA and JJ Act adoption?

The HAMA applies to Hindus, Buddhists, Jains, and Sikhs, allowing a non-judicial process using an adoption deed. It doesn’t require CARA registration or court intervention unless disputed. The JJ Act, on the other hand, is secular and requires judicial approval, CARA registration, and a home study assessment. HAMA allows adoption of specific gender-based preferences and children under 15 years, while the JJ Act allows adoption of children across age groups, provided they are legally free for adoption. The JJ Act ensures greater regulatory oversight, prioritizing orphaned, abandoned, or surrendered children’s welfare. Both ensure legal recognition of adoption.