07 March 2009
In which act/law is it explicitly stated that direct adoption between birth parents and adoptive parents is allowed?
Or on the reverse side, is there an act/law that explicitly states that direct adoption between birth parents and adoptive parents is illegal?
CARA's website lists direct adoption as a "don't" but it is not explicit in stating that adoption directly from birth parents is illegal while it does explicitly state that adopting directly from hospitals is illegal.
A few days ago I contacted CARA to try to understand this. I have yet to hear back from CARA so your input is appreciated.
09 March 2009
Dear Monica, Direct adoption between birth parents to the adoptive parents as well as other adoptions(by lawful guardian)have got legal sanctity UNDER THE Hindu adoption and Maintenance Act. i am reproducing the said provisions for your perusal.Please go through section 9 sub section (1).
Section 9. Persons capable of giving in adoption (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provisions of 3[sub-section(3) and sub-section(4)], the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
(3) The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
3[(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.]
(5) Before granting permission to a guardian under sub-section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.
Explanation: For the purposes of this section-
(i) the expression "father" and "mother" do not include an adoptive father and an adoptive mother; 1[***]
2[(ia) "guardian" means a person having the care of the person of a child or of both his person and property and includes-
(a) a guardian appointed by the will of the child's father or mother; and
(b) a guardian appointed or declared by a court; and]
(ii) "court" means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.
10. Persons who may be adopted No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely,-
(i) he or she is Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.
11. Other conditions for a valid adoption In every adoption, the following conditions must be complied with:
(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;