Who can adopt a child in India?
Up until as recently as the year 2000, adoption in India was the domain of personal laws under which non-Hindus(1) could not statutorily adopt a child. Hindus were able to adopt under the customary Hindu personal law prior to 1956, and under the Hindu Adoptions and Maintenance Act 1956 (HAMA) thereafter. However, the laws that existed earlier permitted non-Hindus to become guardians of minor children but did not accord them the status of parents.
The position changed with the enactment of the Juvenile Justice (Care and Protection of Children) Act in 2000. This law was religion-agnostic and applied to both Hindus and non-Hindus; for Hindus, it existed in parallel to the HAMA. It has since been replaced by the Juvenile Justice (Care and Protection of Children) Act 2015, read with allied rules and regulations such as the Adoption Regulations 2017 (the JJ Act).(2)
Following these legislative developments, there appears to be a greater willingness towards adoption in India in recent years, although the official adoption rates remain low. The reasons for this could include process-related delays and a lack of knowledge regarding the facets of the adoption law and process in India.
This article discusses the eligibility criteria and conditions applicable to persons who wish to adopt a child in India.
There are two distinct and parallel legal systems for adoption in India under the HAMA and the JJ Act. The two key differences between these laws are:
- The JJ Act is a secular legislation that legalises and facilitates adoptions for people of all religions (including Hindus), whereas the HAMA applies only to Hindus.
- The JJ Act provides for adoptions under the supervision of governmental agencies, whereas under the HAMA, Hindu parents can directly adopt a Hindu child without the intervention of a governmental agency (subject to certain conditions set out in the HAMA).
This article discusses who can adopt a child under both these legal systems.
Who can adopt a child in India?
Married couples who have no children
Under the HAMA, when adopting a child of the opposite sex, there must be an age gap of a minimum of 21 years between the adoptive parent and the adopted child. Apart from this, there are no conditions set out for adoption by married couples under the HAMA.
Under the JJ Act, married couples are eligible to adopt if they have been in a stable marital relationship for at least two years. Further, the following age-related restrictions should be borne in mind:
- the age of the child that can be adopted will depend on the composite age of both the prospective adoptive parents (PAP). For instance, a child that is younger than four years can be adopted only by a PAP couple whose composite age is below 90.
- there must be a minimum age gap of 25 years between the child and each PAP.
Such age-related restrictions are not applicable to adoptions by relatives or step-parents.
Married couples who have a child
Under the HAMA, a married couple can adopt a son only when they have no other son, son's son, or son's son's son and can adopt a daughter only if they do not have a daughter or a son's daughter living at the time of adoption. The references to "son" and "daughter" include both biological and previously adopted sons or daughters, respectively.
There is no such restriction under the JJ Act. However, couples with three or more children will not be considered for adoption except in cases of children with special needs, children who are hard to place (ie, children without any referrals for a long time) or where the adoption is made by a relative or step-parent.
Married person, without consent of their spouse
Under both the HAMA and the JJ Act, a married person, whether male or female, can adopt only with the consent of their spouse. This may be a practical hurdle where spouses are separated as their partner will still have to consent to the adoption.
Unmarried (single or divorced) person
The HAMA permits both unmarried men and women to adopt if they are adults and of sound mind. As noted above for married couples, when a Hindu adopts a child of the opposite sex, there must be an age gap of 21 years or more between the adoptive parent and the adopted child.
An unmarried person can also adopt under the JJ Act. However, while an unmarried female can adopt a child of any gender, an unmarried male is not permitted to adopt a girl.
The age of the child that can be adopted will depend on the age of the PAP; as noted above in the case of married couples, there must be a minimum age gap of 25 years between the child and the PAP. A single parent above the age of 55 cannot adopt. Such age-related restrictions are not applicable to adoptions by relatives or step-parents.
If an unmarried person already has a child, the aforementioned restrictions on adoption of a child by a married couple are applicable.
The HAMA does not expressly provide for adoption by same-sex couples. Under the JJ Act, a child cannot be adopted unless the couple has been in a stable marital relationship for at least two years. Since same-sex marriages are not yet legal in India, same-sex couples are currently ineligible to adopt a child as a couple. However, any one of the partners may consider adopting a child individually and the partners may raise the child together.
Couples in live-in relationships
As in the case of same-sex couples, heterosexual couples in a live-in relationship are not expressly permitted to adopt together under the HAMA or the JJ Act.
In 2018, the Central Adoption Resource Authority issued a circular to foreign adoption agencies that facilitate adoptions from India. The circular denied single persons in live-in relationships the right to adopt, stating that such individuals cannot be considered as part of a stable family. This circular was subsequently withdrawn. Irrespective of the withdrawn circular, the position under the JJ Act remains clear that a couple cannot adopt a child unless they have been in a stable marital relationship for at least two years, thereby implying that persons in live-in relationships cannot adopt as a couple. However, any one of the partners may consider adopting a child individually and the partners may raise the child together.
The JJ Act expressly permits step-parents to adopt a child of their spouse from an earlier marriage if such child is surrendered by the biological parent(s).
The HAMA does not contain similar provisions for adoption by step-parents, but such adoptions are not prohibited.
The procedure for adoption by a relative under the JJ Act is more liberal than that for adoption by a non-relative. Certain preconditions of age gaps and child limits are not applicable for PAPs who are relatives. The relatives recognised for this purpose are the child's paternal or maternal uncle or aunt and the child's paternal or maternal grandparent.
The HAMA does not contain similar provisions for adoption by relatives, but such adoptions are not prohibited.
The past year has seen posts on social media in India imploring people to adopt children orphaned or abandoned during the covid-19 pandemic. Although well intentioned, these posts can be misleading. The need for the adoption of children in India remains urgent, but the legal framework regarding who can adopt and who can be adopted – and the legal process involved – must be heeded to, lest the adoption be illegal. Naturally, adoption is a significant, life-altering event for both the adoptive parents and the adopted child, and adoption undertaken without consideration of the relevant legal framework may result in considerable emotional and legal hardships at a future date. For this reason, prospective adoptive parents are encouraged to consider adoption, but ensure that they comply with the legal framework, including the eligibility criteria.
For further information on this topic please contact Radhika Gaggar, Shaishavi Kadakia, Pratyush Khanna or Sachi Shah at Cyril Amarchand Mangaldas by telephone (+91 22 2496 4455) or email ([email protected], [email protected], [email protected] or [email protected]). The Cyril Amarchand Mangaldas website can be accessed at www.cyrilshroff.com.
(1) In this article, the term "Hindus" has been used broadly to include reference to Jains, Sikhs, and Buddhists, consistent with the usage of the term "Hindus" under the Hindu Adoptions and Maintenance Act 1956.
(2) The references to "JJ Act" in this article include the provisions of the Adoption Regulations 2017.