The Government of India is planning to amend the Hindu Adoption and Maintenance Act, 1956 (HAMA) in order to overcome the difficulties in adoption due to the existence of personal laws and bring to under the purview of the Juvenile Justice (Care and Protection of Children) Act, 2015. The idea has been mooted by the Union Ministry of Women and Child Development which feels that the proposed amendment would contribute greatly to check child trafficking. This is seminally because the prevalence of parallel systems in cases of adoption makes it very difficult to monitor such instances of misuse, selling or trafficking of children. The Ministry had conducted a study which highlighted that among the adoptable 48000 children, only 2000 were linked to adoption agencies under the Juvenile Justice Act. It is also to be noted that the Central Adoption Resource Authority (CARA) has a waitlist of more than 17000 prospective parents. This has become extremely challenging for the Ministry.
The study also points out that there are over 9400 child care agencies across the country but over half of them are not registered with the CARA which was made mandatory under the Juvenile Justice (JJ) Act, 2015. The Ministry says that of the 2400 registered institutions only 1200 are linked to adoption agencies as per the JJ Act.
In lieu of the fact, the Ministry plans to issue an ultimatum to all child care institutions asking them to register under the JJ Act by 31 December 2017, else shut down operations. The Act intends to streamline the adoption procedures for orphan, abandoned and surrendered children, for which it has granted a statutory status to the CARA. A separate chapter VIII is included on adoption. Further, several rehabilitation and reintegration measures have been provided for children in need of care and protection.
In India, adoption is a legal affiliation of a child, it forms the subject matter of personal law. Muslims, Christians and Parsis have no adoption laws hence they need to approach the court under the Guardians and Wards Act, 1890. On the other hand, in HAMA under section 6 requisites of a valid adoption have been enshrined. It says, no adoption shall be valid unless:
- The person adopting has the capacity, and also the right, to take in adoption;
- The person giving in adoption has the capacity to do so;
- The person adopted is capable of being taken in adoption.
The Government of India notified Adoption Regulations 2017 framed by CARA as mandated under section 68(c) of the JJ Act, 2015 replacing the Adoption Guidelines, 2015. The Regulations, inter alia, include the following:
- Procedures related to adoption by relatives both within the country and abroad have been defined in the Regulations.
- Validity of Home Study Report has been increased from 2 to 3 years.
- District Child Protection Unit (DCPU) shall maintain a panel of professionally qualified or trained social workers.
- CARA shall be facilitating all adoptions under the JJ Act, 2015 through Child Adoption Information and Guidance System (CARINGS) and all kinds of adoptions, including adoptions by relatives shall be reported to CARA which would enable safeguards for all adopted children by maintaining their record and ensuring post adoption follow up.
As regards maintenance, Section 3 (b) defines it as a right to get necessities which are reasonable and it includes (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment, (ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage, (c) ‘minor’ means a person who has not completed his or her age of 18 years.
The proposed amendment is expected that the agencies would appoint dedicated and service oriented people having clear cut knowledge of child rearing so that they would be able to foster natural mothering care with love and affection. It is also expected that it would contribute to create a congenial social environment for adoption. Similarly, by ensuring effective maintenance it would also help reduce gender discrimination in India.