Requisites of a valid adoption
According to the Adoption of Children Bill, 1995, an adoption will be valid only if:
1. The person adopting is competent to adopt;
2. The person giving in adoption is competent to do so;
3. The person adopted is capable of being taken in adoption;
4. Consent where necessary is obtained.
5. The adoption is made in accordance with the other provisions of this bill and rules framed therein.
- Any person above 25 years of age and of either sex may adopt a child, provided each of the adopters is at least eighteen and at the most fifty years older than the child.
- If the person wishing to adopt is married, s/he should be living with the spouse and should have been married for at least five years. In this case, the adoption would be by both the spouses. However, this condition can be waived in the best interests of the child.
- Persons who are not spouses cannot jointly adopt a child. This condition will be waived only if the spouse is living in an unknown place or is of unsound mind. As an exception, one person can adopt the spouse’s child as his or her own child.
- If a widow/widower has an adopted child from the previous marriage, the new spouse occupies the same position as if he/she has adopted the child.
- A person will have the right to adopt more than one child of the same sex, even if the person already has a child of that sex.
- A person who is eighteen years old can also adopt a child, if the child is his/hers or that of a spouse or such an adoption is in the best interests of the child.
- If a husband or wife adopts a child of the other spouse, the child obtains the legal status of a mutual legitimate child of the spouses.
- The court will not allow a male to be the sole applicant for adoption of a female child unless it is satisfied that the circumstances demand that an exception be made.
Not everyone is allowed to give a child for adoption.
i) In the case of a child born to unmarried parents, only the mother.
ii) When both the biological parents are living together, they must jointly give the child in adoption, unless the court is satisfied that it is in the interest of the child that only one of them gives the child in adoption.
iii) Only one biological parent can give a child in adoption if the other biological parent is dead, missing, or of unsound mind and it is in the interest of the child, that the consent of the other biological parent is dispensed with.
iv) Legal guardian(s) of the child if the parents are dead or they cannot be traced in spite of best efforts.
v) The recognized institution to which the child is surrendered.
Apart from these, the consent of certain persons needs to be obtained.
1) In the absence of a surviving parent, any relative of the child who has demonstrated a settled intention for the welfare of the child.
2) Any recognised institution or social welfare agency having legal custody of the child by court order if the parental rights have been judicially terminated because the parents are declared ‘unfit persons’ of unsound mind and mentally deficient in accordance with Section 16 of the Juvenile Justice Act, 1986.
3) The recognised institution or agency in which any abandoned child from a public place or a hospital/nursing home has been referred to and the mother is absconding. Certain conditions, however, need to be fulfilled.
i) The case must be immediately registered at the nearest police station.
ii) The institution has made every effort to trace the parents or guardians of the child within six months of the date on which the child came into their custody.
iii) Six months have passed from the date when the child had been referred to the agency.
iv) If upon the date of the entry of the decree, the child to be adopted has reached the age of ten years, the adoption may be made after taking into consideration his/her wishes.
This consent should not have been obtained through fraud, duress, coercion or undue influence.