Adoption and Guardianship

Custody Guide

Adoption and Guardianship – Guide

Adoption and guardianship are means to gain custody or legal responsibility of a child that is not one’s biological offspring. The diverse religious makeup of a country like India warrants religion-specific laws around adoption and guardianship. 

These are enumerated in the following Acts:

ADOPTION

  1. The Hindu Adoptions and Maintenance Act, 1956 (HAMA)
  2. The Juvenile Justice Act, 2000

GUARDIANSHIP

  1. The Guardianship and Wards Act, 1890 (GAWA)
  2. The Hindu Minority and Guardianship Act, 1956

Adoption

HIndu Law

Hindu Adoptions and Maintenance Act, 1956:

Under the Hindu Adoptions and Maintenance Act, 1956:

Capacity to adopt

  • Any Hindu male of sound mind is eligible to adopt a minor; if married, he must obtain consent from his wife. (Section 7)
  • Any Hindu female of sound mind is eligible to adopt a minor if she is unmarried, divorced, widowed, her husband suffers from certain disabilities (ceased to be a Hindu, renounced the World, declared to be of unsound mind by the court) (Section 8)

Capacity to give up to adoption:

  • No person except the father, mother or guardian of the child has the capacity to give them up for adoption. (Section 9)
  • The father has the sole right to give the child up for adoption, albeit with the consent of the mother unless she suffers from certain disabilities (ceased to be a Hindu, renounced the World, declared to be of unsound mind by the court) (Section 9, subsection 2)
  • The mother has the right to give the child up for adoption, albeit only if she is widowed or the father suffers from certain disabilities (ceased to be a Hindu, renounced the World, declared to be of unsound mind by the court) (Section 9, subsection 3)
  • The guardian has the right to give the child up for adoption, albeit only if both the parents have died, abandoned the child, been declared by a court of competent jurisdiction to be of unsound mind, or where the parentage of the child is unknown. 

Eligibility to be adopted:

  • The person must be Hindu
  • The person must not have already been adopted 
  • The person is not married, unless custom dictates so
  • The person is below the age of 15, unless custom dictates so

Additional eligibility to be adopted:

  • If the adoption is of a son, the adoptive family must not have a son for the following three generations, alive at the time of adoption
  • If the adoption is of a daughter, the adoptive family must not have a daughter for the following three generations, alive at the time of adoption
  • If a man wishes to adopt a daughter, he must be at least 21 years older than the child
  • If a woman wishes to adopt a son, she must be at least 21 years older than the child
  • The same child may not be simultaneously adopted by 2 or more people
  • The act of adoption must be done with the intention to transfer the child from the family of birth, if known

Muslim Law

Islam does not recognise the act of adoption. The adoptive son is seen as a gift from his natural parents to his adoptive parents. However, one can apply for adoptions from orphanages under the Guardianship and Wards Act, 1890. 

Christian and Parsi Law

Just like Muslim Law, the personal laws of these communities prohibit them from adopting children, and one can apply for adoptions from orphanages under the Guardianship and Wards Act, 1890.  

It is important to note that even under GAWA, children adopted by Christians are merely placed under foster care, and are free to break all ties with their adoptive family once they attain majority. Further, they are not eligible for inheritance. 

Guardianship

There are various types of guardians: natural guardian, testamentary guardian, guardian appointed by the Court. Two things have to be accounted for when deciding guardianship: the person of the minor, and that of their person; often, the same person is not entrusted with both things. 

hindu law

The Hindu Minority and Guardianship Act, 1956

In addition to the aforementioned types of guardianship, there is an additional type of guardianship recognised under Hindu law: de facto guardians. 

Natural Guardian: a person that has responsibility for, and a right to the person and/or property of a minor in the absence of their birth parents. 

  • The father is the natural guardian of a minor above the age of 5 years, and unmarried daughters. 
  • The mother is the natural guardian for minors below the age of 5 years. 
  • In the case of an illegitimate child, the mother is the natural guardian rather than the putative father. 
  • This particular Act makes no distinction between the person of the minor and their property. 

It is also important to note that a natural guardian as the following rights with respect to minors:

Custody, determining the religion of the child, education, movement, reasonable chastisement.

Testamentary Guardian: a person who has been appointed as a minor’s guardian in a deceased parent’s will. 

  • Both parents have the right to appoint a testamentary guardian; this appointment is ineffective if the other parent is alive. 
  • If both parents are deceased, the mother’s appointment prevails. 
  • For an illegitimate child, the power to appoint a testamentary guardian rests solely with the mother. 

Guardians appointed by the Court: A power conferred onto the courts by the Guardianship and Wards Act, 1890, it gives High Courts the inherent jurisdiction to appoint guardians. 

  • The welfare of the child is paramount in making this decision. 
  • These guardians have the right over the person and property of the child. 
  • They are known as certificated guardians, but they must make most decisions in consultation with the Court, under its supervision, guidance and control. 

De Facto guardian: A person who, without any authority under the law, takes continued interest in the welfare of a minor’s person and property. 

Muslim Law

  • The father is the natural guardian in most cases. 
  • There is a clear distinction between custody and guardianship. 
  • Sunnis: Order followed is father, executor, paternal grandfather
  • Shias: Order followed is father, paternal grandfather, executor
  • Even if the mother has custody, the father reserves the right of supervision and control.
  • Mother’s right of custody of minor children (Hizanat) is an absolute right 

Testamentary Guardian

  • Among Sunnis, the father has full power to appoint a testamentary guardian and in his absence, the paternal grandfather. 
  • Among Shias, the father’s testamentary appointment is valid only if the paternal grandfather is deceased.
  • In general, mothers can make testamentary appointments only under two conditions: if the father is deceased and appointed the mother as executrix of the will and consequently, she has made a testamentary appointment OR if the mother has made an executor with respect to her own property. 
  • Appointment of a non-Muslim mother is allowed among Sunnis, but not among Shias.

Guardian appointed by the Court: Same as Hindu guardianship. 

Christian Law

Guardianship under Christian Law follows the GAWA.

  • All decisions shall be taken keeping in mind the welfare of the minor
  • The Court shall take into consideration the age, religion, sex of the minor as well closeness of the guardian to the minor’s kin, and the deceased parents’ wishes, if any
  • If the minor is old enough to form intelligible preferences, those shall be taken into consideration as well

There are certain cases where the Court cannot appoint a minor:

  • The minor is a married female and her husband is fit to be a guardian 
  • The minor’s father is living and fit to be a guardian 
  • The minors’s property is under superintendence of a Court of Wards competent to appoint a guardian of the person of the minor

Parsi Law

Same as under Christian Law