Procedure to be observed for adoption

The physical act of giving and taking the child is an absolute necessity for the validity of adoption. This power to give the child may be empowered by the mother, father or guardian of the child to someone else; and the same holds for the adopter. If the father or the mother have to give a child in adoption, no prior permission of the court is required. However, in case the guardian wants to give the child in adoption, the prior permission of the court is required. No court will accord permission unless it finds that the proposed adoption is for the welfare of the child.

There is no legal requirement for any documentation, but as a matter of practice, an adoption deed is executed.

Registration of adoption is not compulsory under Indian Law. However, it would be advisable to register an adoption deed, as the law creates a presumption in favour of the person, producing documentation, which certifies the validity of the adoption.

Legal position of Adoption

An adoption, once made, is irrevocable. The adopted child shall be deemed to be the child of the adoptive parents for all purposes, with effect from the date of adoption. On the date of adoption, all the ties of the child’s family of birth shall be deemed to be severed and be replaced by that of the adoptive family.

However, there are certain conditions:

  • The child cannot marry any person, whom she or he could not have married if he or she has carried on living in the family of his/her birth;
  • Any property that vested in the adopted child, before the adoption, shall continue to vest in such person, subject to the obligation if any;
  • The adopted child shall not divest any person of any estate, which vested in him or her, before the adoption.

Any consideration in the form of a payment or reward for adoption is strictly prohibited by the Hindu Minority and Maintenance Act. This amounts to trafficking in children. Such giving and receiving of consideration is a penal offence, punishable with imprisonment, which may extend to six months or with fine or with both.