Report No. 153
Legislative Efforts on Adoption Law
3.1. In the past, efforts have been made to formulate a comprehensive law relating to adoption in India but on account of one or the other criticism the efforts could not succeed.1 The last attempt to codify the law, on the subject was made in December 1980, when Adoption of Children Bill was introduced in Lok Sabha. This did not apply to Muslims. This Bill too was criticised in some quarters and it also lapsed. Since then no efforts have been made to introduce the Adoption of Children Bill in order to reform and modernised law in our country.
1. A Bill on the subject was first introduced in Parliament by an independent member, Jayshree Raiji in 1955. It was withdrawn at that time as the then Law Minister wanted a smooth passage for the Hindu Adoptions and Maintenance Bill. Later on, two other Bills were introduced in 1967 and 1970, but both these bills also lapsed. Then the Adoption of Children Bill, 1972 was introduced in the Rajya Sabha and was withdrawn on account of the stormy opposition by the Muslim Members of the Parliament on the ground that it would off-set the tenets of their personal laws.
3.2. At this stage, it would be appropriate to briefly refer to the salient features of the 1980 Bill to the extent relevant for the purpose of this Report. The 1980 Bill proposed that-
(a) Any person who is below 18 years and who is not already adopted or married could legally be adopted by any person of sound mind who is at least 25 years old.
(b) An adoption order of the District Court or the City Civil Court could be necessary. Otherwise, the adoption would be illegal.
(c) A single person, or a married couple jointly, can adopt. There must be a difference of at least 21 years in the age of the child and the adopting, parent or parents unless the Court otherwise permits.
(d) An illegitimate child could be adopted by its parents, either alone or jointly with the spouse.
(e) A female cannot be adopted solely by a male unless he is her father or there are other 'special circumstances' which justify an adoption order.
(f) The consent of both parents or guardian or the persons managing the institution of the child care to be given in adoption is necessary. The consent of the father of an illegitimate child is not required. The consent can also be dispensed with by the Court if the parents or parent cannot be found or are or is guilty of neglect or ill-treatment of the child.
(g) The Court must be fully satisfied that the effect of the adoption order is understood by both sets of parents.
(h) The wishes of the child, if grown up enough to understand his interest, will be an important factor.
(i) The welfare of the child will be the paramount consideration.
(j) The Court can impose suitable conditions in the adoption order in the best interest of the child. The Court can intervene if an adopted child is ill-treated.
(k) Any person aggrieved by an adoption order can appeal to the High Court.
(l) The legal effect of an adoption order is to sever all the ties of the child in the family of its birth and give it the status of a child born in lawful wedlock to the adoptive parents.
(m) A licensing authority for adoption institution for each state is to be set up by law. One half members of such licensing authority will be women. No institution will be permitted to function without a licence from the authorities.
(n) The Bill contained two specific and material clauses 23 and 24 for adoption of an Indian child by a foreigner. These clauses will be discussed later.
3.3. It is significant to note that the 1980 Bill gave equal rights to a married woman to adopt a child jointly with her husband. It also required the consent of both parents and it further allowed an unmarried woman to adopt a child. The welfare of the child was the paramount consideration for adoption of a child under the 1980 Bill.
3.4. Incidentally it is relevant to note that the Law Commission1 had made recommendations, on the Removal of Discrimination Against Women in matters Relating to Guardianship and Custody of Minor Children and Elaboration of the Welfare Principle with a view to facilitate guardianship of an adopted son or daughter to 'erase the injustice to the woman' in obeisance to the letter and spirit of the Constitution. The report dealt with the Welfare principle and emphasised the welfare of minor should be the paramount consideration in the appointment of any person as guardian of a Hindu minor by a Court, be it a male or female.
1. 133rd Report, 1989 on Removal of Discrimination Against Women in matters Relating to Guardianship and Custody of Minor Children and Elaboration of the Welfare Principle.
3.5. We now proceed to discuss the principles contained in clauses 23 and 241 of the 1980 Bill as they are material provisions directly relevant for the purpose of regulating the inter-country adoption:
(a) Clause 23 makes the taking or sending of an Indian child outside India for purposes of adoption punishable except where the child is so sent or taken out under the authority of a provisional adoption order passed by a District Court under Clause 24.
(b) Clause 24 empowers the District Court to make a provisional adoption order permitting a person who is not domiciled in India and who wants to adopt under the law of the country of his domicile a child residing in India, to take the child out of India for the purpose. This introduces the element of 'provisional adoption order' as distinguished from 'adoption order'.
(c) Adoption being a legal fiction, the aforesaid clause introduced a deeming provision to the effect that a child in respect of whom an adoption order is made shall be deemed to be as the child born to that adopter or the adopters in lawful wedlock for all purposes and all the ties of the child in the family of his birth shall be deemed to be severed and replaced by those created by the adoption order in the adoptive family.
(d) In respect of a provisional adoption order, the elements present are-(1) an applicant, a person who is not domiciled in India, intends to adopt a child under the law of the country in which he is domiciled; (2) for the purpose of intended adoption the applicant desires to remove the child from India to his country; (3) he Court in this situation may make a provisional adoption order authorising the applicant to remove the child for intended adoption; (4) the Court gives the care and custody of fee child to the applicant pending his adoption in country of his domicile.
(e) A certificate by the Central Government to the effect-
(i) that the applicant is in its opinion a fit person to adopt the child;
(ii) that the welfare and interest of the child shall be safeguarded under the laws of the country of the domicile of the applicant; and
(iii) that the applicant has made proper provision to enable to the child to be repatriated to India, if necessary, is to be submitted before a pro visional adoption order is passed by the District Court.
(f) The child remains in custody of the applicant until eventual adoption within the foreign country of the applicant takes place.
1. Appendix 'B'.
3.6. In view of the above discussion, especially as there is no codified law on inter-country adoption, there is imminent necessity to have enactment regulating inter-country adoption.