In contemporary India, adoption is governed by several laws, reflecting the country’s diverse religious and cultural fabric:

Hindu Adoption and Maintenance Act, 1956 (HAMA): 

This act applies to Hindus, Buddhists, Jains, and Sikhs. It sets out clear guidelines for adoption, including the eligibility of adoptive parents and children, and ensures the welfare of the adopted child.

Section 2 (bb) of the Act says, “any child, legitimate or illegitimate, who has been abandoned both by his father and mother or whose parentage is not known and who is either case is brought up as a Hindu, Buddhist, Jaina or Sikh” can be adopted under this act. Furthermore, section 2 (c), application of the act is applicable to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Section 2 (c), explanation of the act further elaborates the scope of the applicability of the act by including, any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh, religion.

Persons who are Muslim, Christian, Parsi or Jew by religion do not adopt a child, rather they go for guardianship as prescribed in Guardians and Wards Act, 1890.

Guardians and Wards Act, 1890:

This act primarily deals with guardianship rather than adoption but is sometimes used for adoption purposes by non-Hindus, as it allows for the legal guardianship of a child.

In Islam, adoption is not seen as a means of creating a legal parent-child relationship. Under Muslim Personal Law, any person, including a single parent, can adopt a child. However, the adopted child does not take the name of the adoptive parent and retains their original family name. In addition, the adopted child does not inherit from the adoptive parent or their family unless specified in a will.

It is important to note that adoption under Muslim Personal Law is not considered equivalent to adoption under secular law in India. Muslim Personal Law recognizes only “kafala,” which is a form of legal guardianship, rather than full adoption. As a result, the adopted child does not have the same legal status and rights as a biological child.

Under the Indian Christian Marriage Act, of 1872, adoption is not recognized as a legal means of creating a parent-child relationship. However, Christians in India can still adopt a child through the Guardians and Wards Act, of 1890. The Act allows any person, including a single parent, to apply to become the legal guardian of a child. The legal guardian has the same rights and duties as a natural guardian, except that they cannot act against the best interests of the child.Parsis in India follow the Parsi Marriage and Divorce Act, of 1936. According to the Act, any Parsi who is of sound mind and has not attained the age of 45 years (for males) or 40 years (for females) is eligible to adopt a child. The Act also allows Parsi to adopt a child of the same sex as themselves. However, the Parsi Adoption and Maintenance Act, of 1952, prohibits a single person from adopting a child. The Act only allows a married couple to adopt a child. It is important to note that regardless of personal laws, adoption in India is also governed by the Juvenile Justice (Care and Protection of Children) Act, 2015.

Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act): 

Adoptions which are not covered by HAMA, 56 are governed by J J Act, 2015. J J Act provides a secular framework for adoption and applies to all Indian citizens, irrespective of religion. It introduced the concept of “prospective adoptive parents” and centralized the adoption process through the Central Adoption Resource Authority (CARA).

As par section 2(2) of the chapter, I of this act, “adoption” means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.

Section 56 (1) of the J J Act gives emphasis to adoption and says, “Adoption shall be resorted to for ensuring right to family for the orphan, abandoned and surrendered children, as per the provisions of this Act, the rules made thereunder and the adoption regulations framed by the Authority.

However, section 56 (3) of the J J Act clarifies that Nothing in this Act (J J Act) shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act, 1956 (78 of 1956) and thus, making HAMA adoptions independent of this act.

In response of a PIL [WP (civil) 1003 of 2021] filed by the non-profit organisation, The Temple of Healing, in honourable supreme court of India, honourable judges have observed,” as regards to HAMA, 1956; during course of hearing, both Ms. Aishwarya Bhati, Additional Solicitor General and Dr Jagannath Pat, Director, CARA, have categorically stated before the court that process of adoption under HAMA is independent of the regulations of 2022 which have been framed under the J J Act, 2015.”

Note: Please refer to the website of Honourable Supreme Court. Go to the case tab and search WP (civil) 1003 of 2021; the temple of healing through Dr Piyush Saxena vs. Union of India. Download the copy of order dated November 20, 2023 and refer page 12 of the same.