How Does Adoption Work? Step-by-Step Guide

Adoption in India is primarily governed by the Hindu Adoptions and Maintenance Act, 1956 (HAMA) for Hindus, and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) for all other religions and for children declared legally free for adoption. The two systems operate independently and have different procedures, eligibility criteria, and legal effects.

Under HAMA, only a Hindu (including Buddhist, Jain, or Sikh) can adopt a child. The Act applies to any person who is a Hindu by religion, or who is not a Muslim, Christian, Parsi, or Jew unless they are governed by Hindu law. The adoption under HAMA is a direct legal transfer of parental rights from the biological parents to the adoptive parents, and it permanently severs all ties with the biological family.

The JJ Act, on the other hand, applies to all citizens regardless of religion. It governs the adoption of orphaned, abandoned, or surrendered children who are declared legally free for adoption by the Child Welfare Committee (CWC). The Central Adoption Resource Authority (CARA) is the nodal body that regulates all adoptions under the JJ Act. Prospective adoptive parents (PAPs) must register with CARA through the online portal and follow the prescribed procedure.

The process under the JJ Act is structured and monitored by CARA. The first step is registration on the CARA portal (www.cara.nic.in) by the prospective adoptive parents. After registration, the PAPs must upload required documents, including identity proof, address proof, income proof, medical certificates, and a marriage certificate (if applicable). A home study report is then prepared by a social worker from the Specialised Adoption Agency (SAA) within your district.

Once the home study is complete and approved, the PAPs are placed in the waiting list based on their preference for age, gender, and health status of the child. When a child is matched, the SAA presents the child's profile to the PAPs. If they accept, a referral is issued, and the PAPs must visit the child at the SAA. After a period of interaction, the PAPs can file a petition before the court for adoption.

The court, after verifying all documents and hearing the parties, passes an adoption order under Section 61 of the JJ Act. This order is final and creates a legal parent-child relationship. The adoptive parents then receive a birth certificate for the child with their names as parents. The entire process, from registration to final order, is tracked on the CARA portal.

Under HAMA, the adoption is a private arrangement between the biological parents and the adoptive parents. There is no requirement for court intervention unless the child is a minor and the biological parents are deceased or incapable. The key requirements under Section 7 and Section 8 of HAMA are:

• Capacity to take in adoption: Any male Hindu who is of sound mind and not a minor can adopt. A female Hindu who is of sound mind, not a minor, and is married can adopt with her husband's consent. An unmarried or widowed woman can adopt independently.
• Capacity to give in adoption: Only the biological father, mother, or guardian of the child can give the child in adoption. The father's consent is primary, but the mother's consent is also required if she is alive.
• Child's consent: If the child is above the age of five years, their consent is mandatory.
• Ceremony: A valid adoption requires a giving and taking ceremony (datta homam) where the child is physically handed over by the biological parent to the adoptive parent. This ceremony is essential under Section 11 of HAMA.

After the ceremony, the adoptive parents must execute a registered adoption deed to create a legal record. While registration is not mandatory under HAMA, it is strongly recommended as it serves as proof of adoption. The deed should be registered with the Sub-Registrar of Assurances under the Registration Act, 1908.

Under personal law, Muslims, Christians, Parsis, and Jews do not have a statutory right to adopt. However, they can adopt under the Juvenile Justice (Care and Protection of Children) Act, 2015, which is a secular law applicable to all citizens. Alternatively, they can take a child under guardianship under the Guardians and Wards Act, 1890.

Under guardianship, the child does not become the legal child of the guardian. The guardian has custody and control but the child retains their biological parentage and inheritance rights. The guardian can apply to the court for a guardianship order, which is valid until the child attains the age of 21 years. After that, the guardianship automatically ends.

For Muslims, the Muslim Personal Law (Shariat) Application Act, 1937 does not recognise adoption. However, the concept of kafala (guardianship) is recognised, where a child is taken into care but does not inherit from the guardian. The guardian can make a will or gift property to the child, but the child does not have a legal right to inheritance.

For adoption under the JJ Act, the following documents are typically required:

• Identity proof (Aadhaar, Voter ID, Passport)
• Address proof
• Income proof (salary slips, IT returns)
• Medical certificates (physical and mental fitness)
• Marriage certificate (if applicable)
• Photographs of the family and home
• Consent letter from spouse (if married)
• Two reference letters from non-relatives

For adoption under HAMA, the documents include:

• Adoption deed (registered)
• Proof of giving and taking ceremony (affidavit or photographs)
• Consent of biological parents (if alive)
• Consent of the child (if above five years)
• Identity proof of adoptive parents
• Proof of relationship (if adopting a relative's child)

It is important to note that under HAMA, the biological parents must be Hindus. If the child is from a different religion, the adoption may not be valid under HAMA, and the JJ Act route must be followed.

Adoption is a life-changing decision with significant legal consequences. Whether you choose the HAMA route or the JJ Act route, you must consult a family-law advocate who can guide you through the documentation, court procedures, and compliance requirements. Do not proceed without legal advice, as an invalid adoption can create complications for the child's inheritance, citizenship, and future rights.

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This page provides preliminary legal information about India Law. It is not legal advice and does not create an advocate-client relationship. For your matter, book a consultation with a licensed advocate.