Adopting a child in India: the two legal routes

What it is

Adoption is the legal process by which a child permanently stops being the legal child of their birth parents and becomes the child of the adoptive parents, with all the rights of a child born to them (Juvenile Justice Act, 2015, Section 2). Once it is done:

• the child is the adoptive parents' child for all purposes, including inheritance;
• the child's legal ties with the birth family are severed;
• property the child already owned stays with the child (Juvenile Justice Act, Section 63; Hindu Adoptions and Maintenance Act, Section 12).

An adoption is valid only if the procedure the law sets is followed. Under the Hindu law, an adoption that breaks its rules is void — it has no legal effect at all (Section 5).

When it applies: the two routes

1. The Juvenile Justice (Care and Protection of Children) Act, 2015 — for everyone. Indian citizens living in India, whatever their religion, can adopt an orphan, abandoned or surrendered child through this Act (Section 58). A relative's child can also be adopted under it, whatever the religion (Section 56(2)); a relative here means the child's paternal or maternal uncle or aunt, or grandparent (Section 2). Adoptions by people living abroad go through this Act too (Sections 59 and 60).

2. The Hindu Adoptions and Maintenance Act, 1956 — for Hindus, Buddhists, Jains and Sikhs (Section 2). Typically used when a child's own parents give the child to a family, often within the wider family.

Some terms:

• Specialised Adoption Agency — an institution recognised by the state government in each district to care for children and place them for adoption (Juvenile Justice Act, Section 65).
• Central Adoption Resource Authority (CARA) — the national body that promotes and regulates adoption and frames the adoption regulations, the detailed rules for every step (Section 68).
• Child Welfare Committee — the body that declares an orphan, abandoned or surrendered child legally free for adoption after an inquiry (Section 38). Only such a child can be placed with you through an agency.

The steps: Juvenile Justice Act route

1. Check that you are eligible. You must be physically fit, financially sound, mentally alert and motivated to give the child a good upbringing. A couple needs both spouses' consent. A single or divorced person can adopt, but a single man cannot adopt a girl. The adoption regulations add further criteria (Section 57), such as age limits, which you should check before applying.

2. Apply. You apply to a Specialised Adoption Agency in the manner the adoption regulations set (Section 58). CARA runs the registration process; it frames the regulations and tracks every case.

3. Home study. The agency prepares a home study report — an assessment of you and your home — and, if you are found eligible, refers a child who has been declared legally free for adoption, with the child's study report and medical report (Section 58).

4. Accepting the child. If you accept, you sign the child's reports. The agency places the child with you in pre-adoption foster care — the child lives with you while the order is obtained.

5. The adoption order. The agency files an application before the District Magistrate (Section 58). Before making the order, the District Magistrate must be satisfied that the adoption is for the child's welfare, that the child's wishes have been considered according to the child's age and understanding, and that no payment has been made for the adoption beyond the fees the regulations allow. The proceedings are private, and the District Magistrate should decide within two months of filing (Section 61).

6. After the order. The agency sends you a certified copy of the order. The child's progress in your family is followed up as the regulations set out (Section 58).

Timelines in the Act. A child up to two years old should be declared legally free within two months of being brought before the Committee, an older child within four months (Section 38). Parents who surrender a child have two months to reconsider (Section 35). The agency should complete a case within four months of receiving the application (Section 62).

The steps: Hindu law route

1. Check the conditions. Under Sections 6 to 11 of the Hindu Adoptions and Maintenance Act:

• The person adopting must be an adult Hindu of sound mind. A married person needs the spouse's consent (Sections 7 and 8).
• The person giving must be the child's father or mother, each with the other's consent. Where both parents have died, have abandoned the child, have completely renounced the world or have been declared of unsound mind by a court, or where the parents are not known, a guardian can give the child, but only with the court's prior permission (Section 9).
• The child must be a Hindu, not already adopted, unmarried and under 15, unless a custom applicable to the parties allows otherwise (Section 10).
• You cannot adopt a son if you already have a Hindu son, grandson or great-grandson living, or a daughter if you already have a Hindu daughter or son's daughter living. A man adopting a girl, or a woman adopting a boy, must be at least 21 years older than the child. The same child cannot be adopted by two or more people at the same time (Section 11).

2. The giving and taking. The child must actually be given by the parent or guardian and taken by the adoptive parent, with the intention of moving the child into the new family (Section 11). No religious ceremony is required.

3. Record it. Prepare an adoption deed, signed by the person giving and the person taking the child, and register it. If a registered document recording the adoption is produced in court, the court presumes the adoption was valid unless someone proves otherwise (Section 16).

4. Update records. Use the deed to update the child's documents. Your advocate will tell you what each office asks for.

What never to do

• Do not pay or accept money for a child. It is an offence under the Hindu law (Section 17) and under the Juvenile Justice Act, which punishes selling or buying a child for any purpose (Section 81).
• Do not take an orphan, abandoned or surrendered child informally, from a hospital, an individual or an unrecognised home. Giving or receiving such a child for adoption without following the Act is punishable with imprisonment of up to three years, a fine, or both (Section 80).
• Do not take or send a child abroad, or arrange for a child to be cared for by someone abroad, without a valid order from the District Magistrate. It is punishable under Section 80 (Section 56).

Documents needed

What you need depends on the route; the adoption regulations list the exact set for the Juvenile Justice Act route. Expect:

• Proof of identity, age and address for each adoptive parent.
• Marriage certificate, or divorce decree or a spouse's death certificate, as applicable.
• Proof of income, and a medical certificate of fitness.
• Recent photographs, and the written consent of your spouse.
• For the Hindu law route: the birth parents' identity documents and consent, the child's birth certificate, and the court's permission where a guardian gives the child.
• For a relative adoption: proof of the relationship.

Typical cost

The fees for the agency route are set by the adoption regulations; the Act allows only the adoption fees or charges that the regulations permit (Section 61). Registration of a deed carries a fee set by your state. If you engage an advocate, they quote their own fee before you pay anything; eMunshi does not set it.

What the advocate does

• Tells you which law applies to your family and the child, and whether you meet its conditions.
• Explains the agency process and the documents for your case.
• For the Hindu law route, drafts the adoption deed, checks the consents, and arranges registration.
• Applies to the court for a guardian's permission to give a child, where needed.
• Advises on relative and inter-country adoption, and on inheritance and records afterwards.

The self-serve document that comes before it

There is no self-serve document for an adoption; each step must fit the law that applies to you. If what you need is legal authority to look after a child without adopting, see Guardianship. A 30-minute call with an independent advocate from our panel starts at ₹999; talk to an advocate.