This article on ‘Property Rights of an Adopted Child in India‘ was written by Monika Yadav, an intern at Legal Upanishad.
An adopted child acquires all of the rights, benefits, or even obligations of a biological child through the legal process of adoption, which makes him or her a legal child of the adoptive parents. It is a fantastic social organization that fulfills the needs of both parents and children. Every civilized culture ought to support adoption as a way to build human connections. Adoption is a difficult process in India because there is no common rule. To serve a child’s best interests and secure secrecy on the side of the authorities, a healthier sociocultural environment is of utmost importance.
In this article, we will learn the concept of adoption in India. Later on, we will be discussing the property rights of an adopted child which will be seen with some landmark rulings as well as we will see the adoption concept under Muslim law. In the end, we conclude our article with a few suggestions and a conclusion.
Indian adoption regulations
Central Adoption Resource Authority (CARA)
Adoption is governed by the Central Adoption Resource Authority under the Ministry of Women & Children using the following criteria:
- The prospective adoptive parents have to be willing, able, and financially secure as well as mentally, emotionally, and physically sound before they can adopt a child. Additionally, they must not have any serious medical conditions.
- No matter their marital situation or whether they already have a biological son or daughter, any eligible adoptive parent may adopt a kid.
- A child from any gender could be adopted by any single female:
- A single male person cannot adopt a female kid;
- For a couple, the approval of both partners is a must;
- A couple must be wedded until at minimum two years before a child is given to them for adoption;
- The potential adoptive parents’ ages as of the registration period will be utilized to establish their qualifications and capacity to adapt to children of various ages.
- When considering a pair, it is important to take their combined age into account.
- There must be at least a 25-year age difference between the kid and one of the prospective adoptive parents.
- In circumstances of linked adoptive families and adoptions via stepparents, the age restrictions for prospective adoptive parents do not necessarily apply.
- Parents with 3 or more children just aren’t eligible for adoption, except for special needs children as defined in sub-regulation (21) under regulation 2 and children who are hard to place as outlined in regulation 50.
Hindu Adoption and Maintenance Act
According to The Hindu Adoptions and Maintenance Act, of 1956, the following requirements should meet before adoption can take place:
- Any male Hindu, with a sound mind and a major is eligible to adopt either son or daughter, including Buddhists, Jainists, and Sikhs. However, if such a guy was still married while adopted, he can only do so with the prior permission of his wife (except she is incompetent in giving her consent as per the court).
- Any single Hindu woman, or if she is married, whose husband has passed away, whose union has broken up, or whose husband is not competent according to court, is qualified for the adoption of a son or daughter.
Juvenile Justice (Care and Protection) Act
India’s first step toward secular adoption was the Juvenile Justice (Care and Protection Act) of 2000. The Central Adoption Resource Authority (CARA), which regulates it, establishes the protocols for both international and domestic transactions.
The Child Welfare Committee considers orphaned and abandoned children who are under two years old eligible to be adopted within two months of the baby’s birth. A maximum of four months may pass if the youngster is older than two years old. When a kid is declared to have been surrendered, parents and legal guardians have two months to request a review. The Bombay High Court’s Nagpur Bench upheld the adoption conditions do not only apply to abandoned, orphaned, or relinquished children. The Juvenile Justice Act also permits adoptions from close family members.
Adoption In Other Faiths
Adoption is not recognized by the personal rules of any religion, including Islam, Christianity, and Parsi. The “guardianship” of a kid by one of these faiths is permitted, but it lasts only until the ward becomes 21 and has no legal right to an inheritance. Adoption is not permitted in Islam, according to the ruling in the famous case of Mohammed Allahabad Khan v. Mohammad Ismail. The Apex Court stated in Shabnam Hashmi v. Union of India that Islam does not recognise adoption but rather the idea of Kafala, which denotes guardianship lacking inheritance rights and a modification in the family name.
Furthermore, a three-judge panel, which was comprised of Chief Justice P. Sathasivam and Justices Ranjan Gogoi and Shiv Kirti Singh, argued that until the goal of a single civil code is realised, personal laws will remain in effect for everyone who decides to adhere.
In a similar vein, adoption is not recognised by Parsi law. However, they have the option of adopting a child from an orphanage under the Guardian and Ward Act of 1980. According to the 1980 Guardian and Ward Act, Christian couples who want an adoption may adopt an orphan with the prior permission of the court. After turning 21, the youngster is, nevertheless, free to live life as they see fit. Even Christianity forbids the legal inheritance of property, unlike Islam and Parsi.
Legal Situation regarding Property Inheritance
Son is not defined under the Hindu Succession Act of 1956. Therefore, in the same way, that it would have been the case if the adoptive parents had a biological child, it would be legal for an adopted child to inherit the adoptive parents’ assets. The act states that property will be distributed to Class 1 heirs, which includes adopted children, in the event of a man’s death without a will.
It should be stressed, nevertheless, that simply raising a stepchild does not constitute evidence of adoption. The Apex Court ruled in Ram Das v. Gandiabai, a property dispute case, that merely because the stepfather paid the stepson’s expenditures did not establish adoption. As a result, the son continue as a part of his father’s family and was entitled to inherit from it. A different ruling in the case of Prafulla Bala Mukherjee v. Satish Chandra Mukherjee sheds light on the fact that simply living together does not establish a relationship through adoption or give rise to a presumption.
The adoptive mother in the particular circumstances of the case claimed ownership of the possessions and assets her adopted son has acquired. The case’s circumstances were against adoption even though the deceased boy acknowledged his birth mother as his mother and named her the beneficiary of all insurance policies including money. The court found that his son’s consent enabling his adoptive mother could reside in her house did not grant her any ownership interests in his possessions.
According to the requirements of the Hindu Adoption and Maintenance Act, of 1956, Relationships between the adopted child and his birth family are dissolved, and the adoptive family takes their place. This suggests that once adopted, a child loses all co-ownership rights and loses ownership rights to the existing property. thereby obtaining the adopting parents’ property rights. However, depending on the circumstances and the personal relationships between the parties, a kid may be entitled to the property if such biological parents write a will voluntarily allocating assets to their biological child before passing away.
There are a few circumstances that act as an exception to the regulation, even if the laws promise that adopted children will have complete ownership of their adoptive parents’ possessions. Adoptions are deemed unlawful if the procedures outlined by several statutes are not properly followed. As a result, the adoptee loses all coparcenary claims toward the adopter’s assets. To qualify a child for property rights, all conditions and guidelines must be properly followed; otherwise, the court will not find it appropriate.
Adoptive parents who are ineligible to adopt may also be an exception to this rule. The adopted child forfeits their inheritance if the biological parents of the adoptive parents are no longer eligible to inherit. The adopted child in this situation is only eligible for maintenance payments. When an adoptive parent’s biological kid is born after the adoption, the property inheritance clauses also change. If a biological child is born after the adoption, they will each possess an equivalent ownership stake within the father’s estate.
The Hindu Succession Legislation’s Section 8 stipulates that Class 1 heirs, which includes a son who’d been legally adopted as this term “Son” has not been defined in the act, receive a father’s property. If the father passes away without leaving a will, an adopted child will receive an equal portion of the estate, just like the natural son.
The best thing for the birth and/or adoptive parents to do if they are concerned about their capacity to inherit from them is to get a legal will made with a lawyer that clearly states what is to inherit. But it’s also good practice for anyone who wants to make sure that their loved ones are taken care of after their death. Keeping that will be updated and having it include the contact information will be necessary to protect the rights of inheritance of an adoptee.
No matter what stage of life or if the family has been affected by adoption, keeping a current and concise will is a crucial precaution. It is not as difficult to inherit as an adoptee as it would appear.
There is a large enough group of children that are healthy in body and mind but lack good parenting because of broken regulations. According to Hindu law, an adoptee can’t be treated differently from a biological child in either way. Hindus’ inheritance rights have significantly improved over the past few decades. However, a standardized civil procedure is still required to secure legal adoption in cases involving different religions, particularly Muslims.
Adopted children’s inheritance rights are guaranteed by law, and if they are violated, the appropriate authorities will investigate. Equal and non-discriminatory property transfers to adopted children will promote social justice and assist to lessen inequality. Adopted children who inherit property develop a sense of responsibility toward their adoptive parents as well as a sense of belonging, filling the gap in their social lives.
- “About CARA”, Central Adoption Resource Authority, available at: cara.nic.in/about/about_cara.html
- “Juvenile Justice (Care and Protection of Children) Act, 2000”, Advocate Khoj, available at: https://www.advocatekhoj.com/library/bareacts/juvenile/index.php?Title=Juvenile%20Justice%20(Care%20and%20Protection%20of%20Children)%20Act,%202000
- “Property Rights of a Legally Adopted Child under Hindu Law”, Lawzilla, 30 September 2020, available at: lawzilla.in/world-of-law/real-estate-property/property-rights-of-a-legally-adopted-child-under-hindu-law/