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For a child without a family, adoption is more than just a legal process; it is the fulfillment of a fundamental human need—the right to a safe, permanent, and loving family. Chapter VIII of the Juvenile Justice Act, 2015, provides a comprehensive and secular legal framework for the Adoption under JJ Act 2015. It governs the adoption of orphaned, abandoned, and surrendered children, ensuring that the child’s best interests remain the paramount consideration throughout the journey to a new home.
This post will demystify the entire adoption process, from eligibility and procedures to the key authorities that make it happen.
1. The Legal Framework and Purpose of Adoption (Section 56)
Section 56 lays the foundation for adoption in India under this Act.
- Primary Purpose: The main goal of adoption is to secure the right to a family for every orphaned, abandoned, and surrendered (OAS) child.
- A Secular Law: The JJ Act is a secular legislation. This means that any Indian citizen, regardless of their religion, can adopt a child under its provisions.
- Relation to HAMA: This Act is distinct from the Hindu Adoption and Maintenance Act, 1956 (HAMA). Adoptions under HAMA are governed by Hindu personal law, while the JJ Act provides a uniform procedure for all Indians.
- Inter-Country Adoption: The Act mandates that all inter-country adoptions of Indian children must be conducted only as per its provisions and the regulations framed by the Central Adoption Resource Authority (CARA).
2. Who Can Adopt? Eligibility of Prospective Adoptive Parents (Section 57)
The Act sets clear criteria to ensure that a child is placed in a suitable and capable home. Prospective Adoptive Parents (PAPs) must be:
- Physically fit.
- Financially sound.
- Mentally alert.
- Highly motivated to provide a good upbringing to a child.
Other key eligibility rules include:
- Couples: The consent of both spouses is mandatory.
- Single Persons: A single or divorced person can also adopt.
- Key Restriction: A single male is not eligible to adopt a girl child.
- Other Criteria: More detailed criteria related to age difference, marital status, and health are specified in the Adoption Regulations framed by CARA.
3. Procedure for Adoption by Indian Parents (Section 58)
The process for in-country adoption is systematic and designed to protect both the child and the adoptive parents.
- Step 1: Application: PAPs apply to a Specialised Adoption Agency (SAA).
- Step 2: Home Study Report (HSR): The SAA conducts a detailed social investigation and prepares a Home Study Report to assess the PAPs’ suitability.
- Step 3: Referral: Once found eligible, the SAA refers a child who is legally free for adoption to the PAPs, providing them with the child’s study and medical reports.
- Step 4: Acceptance & Foster Care: The PAPs accept the child, who is then placed with them in pre-adoption foster care.
- Step 5: Final Adoption Order: The SAA files an application before the District Magistrate (DM). After being satisfied that the adoption is for the child’s welfare, the DM passes the final adoption order.
Important Update: The Juvenile Justice Amendment Act, 2021, transferred the power to issue final adoption orders from civil courts to the District Magistrate to expedite the process.
4. Procedure for Inter-Country Adoption (Section 59)
This process is more complex and involves international coordination.
A child becomes eligible for inter-country adoption only if they could not be placed with an Indian or NRI family within
60 days of being declared legally free for adoption.
- Step 1: Application Abroad: Foreign PAPs apply to an Authorised Foreign Adoption Agency (AFAA) in their country.
- Step 2: Referral to CARA: The AFAA forwards the application and HSR to the Central Adoption Resource Authority (CARA) in India.
- Step 3: Referral to SAA: CARA examines the application and refers it to an Indian SAA where a suitable child is available.
- Step 4: Matching and Acceptance: The SAA matches a child with the PAPs, who then formally accept the child.
- Step 5: Adoption Order from DM: The SAA obtains the legal adoption order from the District Magistrate.
- Step 6: NOC and Travel: CARA issues a No-Objection Certificate (NOC), and the SAA secures a passport for the child, allowing them to travel to their new home.
5. Key Authorities in the Adoption Ecosystem
The adoption process is managed by a three-tier system of specialized bodies.
- Specialised Adoption Agency (SAA): These are the primary, district-level agencies responsible for the care of OAS children and for processing adoption cases.
- State Adoption Resource Agency (SARA): This is the nodal body at the state level that promotes and monitors adoption within the state.
- Central Adoption Resource Authority (CARA): This is the apex statutory body of the Government of India. CARA frames regulations, monitors the entire system, and is the central authority for all inter-country adoptions.
6. Case Laws on Adoption
1. Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469
- Facts: A lawyer filed a PIL highlighting malpractices in inter-country adoptions, which risked becoming a channel for child trafficking.
- Judgment: This is the foundational case for Adoption under JJ Act 2015. The Supreme Court laid down comprehensive guidelines to regulate adoptions, prioritizing the child’s welfare above all else. It established the principle that every effort must be made to find a domestic home for a child before considering inter-country adoption. The judgment led to the creation of CARA and the entire regulatory framework we have today.
2. Shabnam Hashmi v. Union of India, (2014) 4 SCC 1
- Facts: The petitioner, a Muslim activist, challenged the fact that Muslim personal law did not recognize a formal right to adopt. She sought the right for all citizens to adopt under a secular law.
- Judgment: The Supreme Court held that the Juvenile Justice Act provides a secular route to adoption that is available to all Indian citizens, irrespective of their religion or personal law. It clarified that personal law cannot prevent any person from adopting a child under the enabling provisions of the JJ Act. This landmark ruling affirmed the Act as a truly universal adoption law for India.
3. In Re: Adoption of Payal @ Sharinee (2010)
- Facts: The Bombay High Court was dealing with a case where the biological mother had abandoned the child, and a foreign couple was seeking to adopt her. The court examined the procedural requirements and the child’s welfare.
- Judgment: The court took a deeply child-centric approach, stating that the “child’s welfare is the pole star” that guides all adoption proceedings. It emphasized that while procedural safeguards are vital, they should not become bureaucratic hurdles that deny a child their right to a family. The judgment is a powerful reminder that at the heart of the legal process is a child waiting for a home.
7. Exam Point of View 📝
- Secular Law: The JJ Act provides a secular adoption process, available to all Indians.
- Final Authority: The District Magistrate (DM) now issues the final adoption order.
- Eligibility: A single male cannot adopt a girl child.
- Key Authorities: Remember the hierarchy: SAA (District), SARA (State), and CARA (National/International).
- Legal Effect (Sec 63): Adoption severs all ties with the birth family and makes the child the lawful child of the adoptive parents for all purposes.
- Priority: Domestic adoption is always given priority over inter-country adoption.
Conclusion
The chapter on Adoption under JJ Act 2015 is one of the most hopeful and constructive parts of the legislation. It provides a robust, transparent, and child-focused procedure that transforms lives. By creating a secular and regulated framework, the Act ensures that the journey of an orphaned, abandoned, or surrendered child culminates in the security and love of a permanent family, which is the most effective form of rehabilitation.
