Adoption And The Uniform Civil Code
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Category: Family & Personal Law
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ADOPTION AND THE UNIFORM CIVIL CODE
Sudhishna Bose, K.G. Harini & Muktaa Patil, Jindal Global Law School
ABSTRACT
India’s adoption regime is fragmented between religion-specific personal laws and secular statutes, producing unequal rights and procedural incoherence in terms of child welfare. This paper critically appraises the statutory framework governing adoption, principally the Hindu Adoption and Maintenance Act, 1956, the Guardians and Wards Act, 1890, and the Juvenile Justice (Care and Protection of Children) Act, 2015, and identifies constitutional and practical deficiencies of the pluralistic system. It situates adoption within the Uniform Civil Code debate, contending that a unified adoption statute would further equality, gender justice, and the best interests of the child, consistent with Articles 14, 15, 21, and 44 of the Constitution.
The paper scrutinises the Uttarakhand Uniform Civil Code, 2024, noting its omission of comprehensive adoption and guardianship provisions and arguing that this gap undermines substantive uniformity and perpetuates reliance on fragmented central laws. Drawing on comparative examples from France and Portugal, it concludes that any national UCC should adopt a comprehensive, secular, child‐centric adoption regime that ensures equal legal recognition for all adoptive families while upholding constitutional values and child welfare. Adoption in India has had a long standing history, with ancient Hindu texts like the Manusmriti prescribing rituals for the adoption of a male child, as a last resort for continuing the family line.
There existed barriers to this process, such as gender of the child (there exist no specific provisions for the adoption of girls as it was believed that the female child cannot liberate the souls of the deceased). During the British colonial rule in India, adoption laws underwent significant changes. The laws were based on pre-existing frameworks such as the Mitakshara and Dayabhaga schools of law that imposed restrictions on eligibility of who could adopt. Under these laws, a man with a natural or adopted son, grandson, or great-grandson was prohibited from adoption. Simultaneous adoption of multiple individuals was also deemed invalid. Landmark judgments and legislative acts further expanded this legal landscape. The Indian Majority Act, 1875, for example, effected unto law the age at which a person could adopt or authorize adoption. The Privy
Council, through decisions like Jamoona vs. Bamasoondri, provided insights into the legal complexities surrounding adoption, including the authority of minors to adopt. 1 India, post independence, saw of pivotal legislation aimed at regulating adoption practices come into effect with regards to Hindu families. The Hindu Adoption and Maintenance Act, 1956,2 (Hereinafter HAMA) alongside with other legislations like the Guardian and Wards Act, 1890,3(Hereinafter GAWA) the Hindu Minority and Guardianship Act, 1956, and the Hindu Succession Act, 1956, created a codified legal framework to govern adoption among Hindus. These laws laid down the rights and obligations of both adoptive parents and adopted children, ensuring legal validity of adoption, rights, inheritance, titles and protection.
It is also important to recognize that adoption laws in India are not solely restricted to Hindu families. Diverse groups within India, including Christians, Muslims, and Parsis, can adopt via specific legislation and legal provisions like the Guardianship and Wards Act, 1890. There also exist secular laws like the Juvenile Justice (Care and Protection of Children) Act,
20114 (Hereinafter JJ Act), which allows people from any community to
adopt. The establishment of the Central Adoption Resource Authority (Hereinafter CARA) reflects the broader efforts of the state to safeguard the welfare of all children, irrespective of religious affiliations.5 This essay will aim to look at current adoption laws in India, and move on to analyse adoption laws under the Uniform Civil Code (UCC) and how bringing the UCC into effect nationwide will impact said laws. It will also examine the provisions of the Uttarakhand Civil Code in regards to adoption and comment on the same. 1 “Historical Evolution and Contemporary Framework of Effect of Adoption Laws in India: A Comparative Analysis - The Amikus Qriae” (The Amikus Qriae, July 14, 2024)
2 Parliament of India, THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 (1956)
3 India, THE GUARDIANS AND WARDS ACT, 1890 (1890)
ND%20WARDS %20ACT,%201890%20ACT%20NO.%208%20OF>
4 Government of India, THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015
(ACT NO 2 OF 2016, 2015) 5 “Historical Evolution and Contemporary Framework of Effect of Adoption Laws in India: A Comparative Analysis - The Amikus Qriae”
Adoption under the existing legislation At present, India has no single overarching law governing adoption of children. This multitude of laws is primarily due to the fact that Hindu laws are the only ones that give full legitimacy to an adopted child. As such anyone from another faith who wants to adopt a child must adopt the child under the terms of The Guardians and Wards Act, 1890 , while Hindu adoption takes place under the Hindu Adoption and Maintenance Act, 19566. For the purpose of adoption the HAMA, also extends to Sikhs, Jains and Buddhists as they are not recognised as separate groups from Hindus. According to this law, the adoption is final and binding and grants the adopted child the same legal rights as a child who biologically belongs to the same family, including the right to receive property. The primary issue that this legislation faces is the presence of customs.
Parents who adopt a child under the HAMA are not required to register the adoption with the Central Adoption Resource Authority (Hereinafter CARA), the statutory body that regulates domestic and inter-country adoptions in India via a standard process. 7 This creates a serious issue with regards to keeping track of adoptions and creates gaps in the law for illegal adoptions, child trafficking and exploitation. Additionally it does not allow for couples who already have a child to adopt another child of the same sex nor does it allow for Hindu parents to adopt a non-Hindu child; this significantly narrows the scope of adoption. The GAWA differs here as it only creates a relationship of a ward and guardian, not parent and child. This essentially means that minors who turn 21 cease to be wards and take on separate individual identities.
The status of a ward does not entitle them to any specific legal rights, most glaringly the right to receive property. 8 The creations of the ‘ward’ and ‘guardian’ title also means that once the wards reach the age of majority they have no legal protection to ensure their future; the state will not recognise them as being affiliated with their guardian and their guardian’s family and thus they are stripped of any benefits, rights or titles they may have received if they were legally recognised as the adopted children of their guardians, creating a system of insecurity. More recently, India got its Juvenile Justice (Care and Protection of Children) Act, 2015 which 6 Negi V and Chadda M, “Adoption in India: The Deconstruction of the Evolving Jurisprudence” (International Journal of Law, 2023)
7 “Committee Reports” (PRS Legislative Research)
8 Negi V and Chadda M, “Adoption in India: The Deconstruction of the Evolving Jurisprudence”
acts as a secular law that allows anyone, regardless of religion, to adopt a child. CARA functions as the statutory body under the Ministry of Women and Child Development, and maintains a record of all adoptions that take place under this Act. The Act also mandated that all childcare institutes be registered with state governments. The process for adoption under the JJ Act is lengthy and cumbersome, and there exists a disparity between prospective parents and children who are free for adoption. As per the 2020 World Orphan Report, India has an estimated 3. 1 crore children who were orphans. But as of 2025, only 2652 children were legally free for adoption. As of 2025, there are 13 prospective parents for every child free for adoption.
9 The existing framework is a jumble of religious texts, colonial interventions and postindependence reforms that presents a compelling case for a singular, unified framework. This pluralistic legal landscape not only undermines the constitutional ideals of equality and nondiscrimination but also poses a direct challenge to the welfare of children. Adoption and the Uniform Civil Code: The Conceptual and Constitutional Dimension This pluralistic framework of adoption laws in India reveals a deeper constitutional tension between equality and religious autonomy10 . Although personal laws have been protected under the freedom of religion , this protection also results in unequal treatment of citizens who belong to different faiths11. The question of whether adoption should fall under a Uniform Civil Code arises not merely as a matter of legal reform but as a constitutional enquiry as well.
The origin of Uniform Civil Code is the Article 44 of the Indian Constitution that stipulates the state to make an endeavor toward the execution of the Uniform Civil Code (UCC) among all the citizens so as to bring into force one type of law to handle the personnel matters like marriage, divorce, and inheritance all over the nation. Article 44, however, will have to be interpreted conjointly with Articles 14 and 15 that provide equal treatment and no discrimination, as well as Articles 25-28, that provide the freedom of religion.
Adoption, deeply embedded in religious and cultural customs, becomes an arena of conflict 9 Rauscompass, “The Child Adoption Crisis in India - Rau's IAS” Compass by Rau’s IAS (August 2, 2025) 10 Kumari P, Mourya B and Kumari P, “Adoption Laws in India: An Urgent Need of Resolving Disparities,” vol 5(Raffles University, 2025) journal-article 11 ‘Legal Provisions of Adoption in India: A Critical Study with Special Reference to Statutory Framework and Gaps’ (2018), International Journal of Law https://www. lawjournals. org/assets/archives/2018/vol4issue3/4-3- 36-957. pdf
between universalistic ideals of equality and the communitarian rationale of religion. The constitutional directive, as foreseen under Article 44, is to reconcile the disparate frameworks without siding with one. The judiciary has shown a sort of strategy for slow and inclusive evolution, consonant with India's pluralistic tradition. Adoption, covering the realm of family, inheritance, and personality, is best suited for such a sensitive constitutional approach. The argument for the inclusion of adoption within a UCC is based on three ideals: equality, gender justice, and the welfare of the child. Substantive equality demands that similarly placed citizens have equal formal legal entitlements despite religion.
The existing regime, where Hindus may adopt under the provisions of the Hindu Adoption and Maintenance Act, 1956 (HAMA) with complete filial privileges, but Muslims, Christians, and Parsis are limited under the Guardians and Wards Act, 1890 (GWA), patently contravenes this principle. The gendered aspects of prevailing adoption laws similarly bring out structural inequalities. Previous constructions on HAMA invested adoption powers predominantly in the husband, an expression of patriarchal prejudices inconsistent with Articles 15(1), prohibiting discrimination, and Article 15(3), giving the State powers to make special provisions for the benefit of women's welfare12. Lastly, the welfare of the child, in the Juvenile Justice (Care and Protection of Children) Act, 2015, presents a secular, welfare-based framework oblivious to religious divisions13.
The Central Adoption Resource Authority under this Act is an example of how adoption regulation is possible on the lines of the constitutional values. Inclusion of adoption in a UCC would not only negate religious inequalities but also develop an equalitarian idea of parenthood from the perspective of dignity and compassion, constitutional values. The constitutional morality doctrine formulated by Navtej Singh Johar v. Union of India (2018), although asserts that the constitutional morality must prevail over traditional or religion-based morality. The same is to be extended to the adoption laws under personal law so that the laws are aligned with the constitutional values rather than the religion-based values. Similarly, the court, in the case Shayara Bano v.
Union of India (2017), set aside the practice of triple talaq by declaring that religion-based practices violating the fundamental rights are not immune from the provisions under the Constitution. The same is applicable to the case that the discriminatory adoption laws under the religion-based personal law are invalid where the adoption laws are inconsistent with the principle of equality and the best interests of the child.
12 L Narayan, ‘Uniform Civil Code, Uttarakhand, 2024’ (2024) SAGE Journals
https://journals.sagepub.com/doi/10.1177/26318318241279140
13 Supreme Court Gives Adoption Rights to Muslims India Today (19 February 2014)
https://www.indiatoday.in/india/story/supreme-court-gives-adoption-rights-to-muslims-181849-2014-02-19
By including adoption within the fold of a UCC, this is thus not so much a legislative reform but a constitutional imperative. It makes Article 44's vision come alive by making all citizens, all of whom regardless of religion, have equal entitlement to form families. Based on the values of equalitarian policy, gender justice, and the welfare of the child, a uniform adoption code is an example of constitutional morality in practice. Instead of obliterating religion-based diversity, such a code upholds India's secular promise of equal citizenship. Adoption in this sense is a personal act of love and also the Constitution’s promise to treat every citizen, parent and child with equal dignity. Commentary: The Uttarakhand Uniform Civil Code is a step towards legal unification. Its core achievement is the establishment of a single and secular law that supersedes the previous fragmented system.
By granting every individual the same legal capacity to adopt regardless of religious identity, the code directly addresses a historical inequality in Indian personal law. By extending equal legal right to adopt to every individual regardless of religious beliefs, it rectifies a historical injustice to Indian personal law. This legal clarity and the introduction of standardized procedures are substantial improvements for child welfare and administrative coherence. However, the code’s design invites clear scrutiny. While the intent is secular the code’s substantive legal architecture appears to draw heavily from Hindu Personal law. This creates a legitimate question of whether the state has created a universal law or has effectively universalized a majoritarian one.
Furthermore, by enacting this code only at the state level, the reform introduces a new form of legal disparity across India, potentially complicating interstate family matters rather than simplifying them. Thus, the final effectiveness of this law cannot be assessed based alone on its text. Its theoretical promise to bring equality and inclusivity is sound, but the effectiveness and fairness it achieves in real life will be a function of two essential factors: first, its operation, namely, if the administrative apparatus of the state can adequately sustain the new processes; and second, how Uttarakhand's various communities react to it, and it will be they who establish the law's social credibility. It's a venturesome code, but it will be a function of pragmatic implementation, and not merely legislative vision.
Adoption and Legislative Intent under the Uttarakhand Uniform Civil Code The Uniform Civil Code of Uttarakhand Act, 2024 (Hereinafter referred to as the “UCC”) is a
legislation that establishes uniform personal laws in the state of Uttarakhand . In Modern Indian history, it is the first comprehensive state-level codification of uniform personal laws. The UCC seeks to unify personal laws governing matters related to marriage, divorce, inheritance, and adoption. The objective is to, thereby, further the constitutional objective of equality and secularism provided by Articles 14 and 44 of the Constitution of India. The composition of the act is generally holistic. The provisions are observed to be covering several key laws related to spousal and live-in relationships, as well as inheritance. However, it is notable to observe that the aspect of adoption laws are minimally addressed, and have not been comprehensively codified to provide a uniform set of laws.
Inasmuch as the legislation results in the continued application of prior legislations, it is crucial to assess the impact of the omission upon the objectives envisioned by Article 44 of the Constitution. The Uttarakhand UCC Drafting Committee, formed in May 2022, was a five member expert committee, that was chaired by retired Supreme Court Justice Ranjana Prakash Desai14. The legislative intent of this committee was to establish a comprehensive code to unify personal laws across religious and cultural communities. The aspects to be focussed upon included marriage, divorce, live-in relationships, and inheritance. However, it is notable to observe that the act did not address nor establish reforms in matters of adoption and guardianship15.
In the present context, the laws related to adoption are governed by the Hindu Adoption and Maintenance Act, 1956, and the Juvenile Justice (Care and Protection of Children) Act, 2015. The former is applicable to selective religious groups following the Hindu faith. The code does not specifically provide any provisions related to adoption and guardianship, and is thereby not legally binding in matters related to the same16. According to the provisions of the HAMA, in matters related to adoption and guardianship, the decision of the father is given supremacy, which would be observed as arbitrary, thereby necessitating the requirement of a unified, gender-neutral code17.
Moreover, there have been several critiques regarding the scope and efficiency of the HAMA, especially with concerns regarding protecting the rights and interests of children, and preventing exploitation which has been observed as a consequence of
14 “About Us | Uniform Civil Code,”
15 “Communist Party of India (Marxist)”
16 Ashok Kumar and Abhishek Kumar, 'Exploring the Uniform Civil Code: From Historical Roots to the New Code in Uttarakhand' (2025) 8(4) Int J L Mgmt & Hum 1534 17 Parmar AS and Symbiosis Law School, Nagpur, “Uniform Civil Code of Uttarakhand and Marriage Laws,” vol 6 (2024)
legislative inefficiencies of the act18. The provisions of the JJ Act have been observed to be more comprehensive and holistic in nature, with an intent to prioritize the safety and wellbeing of children, in contingence with the principles of the United Nations Convention on the Rights of the Child19. Therefore, the dual system, whilst creating partial uniformity, may lead to overlaps in terms of operationality and consequently limiting the procedural efficacy. The plurality of adoption laws leads to the legislative omission more conspicuous, due to the fact that the laws for adoption were notably required to be codified in a harmonious nature. Legislative Omission and Policy Critique In the statutory provisions of the act, it is conspicuous that there is minimal deliberation upon the aspect of adoption, and the parameters and obligations related to the same.
The definitions of adoption and adoptive policies are not provided, and it is noteworthy that eligibility requirements and regulations are not provided in relation to procedures of adoption. The act simply recognizes adopted children within the ambit of the definition of “child” provided in Section 3(1)(a). There are plethorous implications of this legislative omission. Foremost, the citizens of Uttarakhand must refer to central laws, specifically the HAMA and JJ Acts, in matters of adoption. This, essentially, defeats the purpose of a set of common, codified laws across personal affiliations, as well as the ambition to unify the personal laws. Furthermore, this may lead to potential inconsistencies between the personal law reforms of the state and the central adoption frameworks that continue to be applied.
The omission of reforms related to adoption and guardianship effectively challenge the holistic application of the Uniform Civil Code, wherein the omission of a crucial institution of family may lead to limitations in regard to the constitutional legitimacy of the act. The Uttarakhand UCC has been widely critiqued in regard to issues pertinent to the constitutionality of the provisions. Several scholarly and editorial critiques posit that the UCC has failed to achieve the intended objective of uniformity, and is rather excessively reliant and biased towards Hindu personal laws. Through the criminalization of certain religious practices, such as Nikah Halala and Iddah, the response of minority communities, particularly the All
18 Goyal R, Mukherjee N and Goyal R, “Uttarakhand UCC Bill Does a Lot of Things. Achieving True
‘Uniformity’ Is Not One of Them” (ThePrint, March 1, 2025) 19 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) GA Res 44/25.
India Muslim Personal Law Board claiming the act to be “nothing more than political propaganda”, has questioned the constitutional validity of the act, alleging political motivation20. The religious sensitivity of matters related to adoption and guardianship may be a causal factor towards the legislative omission. Additionally, there may be hesitation in terms of potential administrative overlaps with the existing legislation. In totality, the fact that the law fails to address certain key institutions reflects the presence of inconsistencies within the framework of the legislation. Therefore, it is necessary for the law to include all relevant aspects in order to constitute a substantive reform.
Adoption in a Nationwide Uniform Civil Code Adoption is a fundamental institution of family law, and requires a comprehensive, well adapted set of laws to govern procedures and regulations related to it. Essentially, adoption implicates constitutional equality and child rights. The establishment of a unified, codified set of laws would optimize the legal equality and make the process of adoption accessible to communities that currently experience restrictions for the same. In addition, it would provide statutory clarity regarding the rights of adopted children, thereby protecting their interests and ensuring welfare. According to Section 6 of the HAMA Act, the “natural guardian” of a child is stated to be the father, which may be perceived as excessively conservative and arbitrary.
Along with reforming provisions such as the aforementioned, it is necessary for a UCC to prioritize the interest of the child21In conclusion, a uniform and secular legislative framework for adoption would rationalize the duality of the HAMA and JJ Acts, and provide a unified system that serves in the best interest of Children’s rights. On the other hand, a critical concern regarding the effective implementation of a UCC in relation to adoption is the religious sensitivities pertinent to adoption and legitimacy. The uniformization of personal laws may lead to potential infringement of religious practices and customs22. Consequently, this may lead to political and social consequences which would
20 Ziya Us Salam “AIMPLB calls Uttarakhand Uniform Civil Code a mere eyewash”, The Hindu, (online)
https://www.thehindu.com/news/national/aimplb-calls-uttarakhand-uniform-civil-code-a-mereeyewash/article67822525.ece 21 Faizan Mustafa “A progressive UCC must protect the child’s best interests”, The Hindu (Opinion / Lead, online) https://www.thehindu.com/opinion/lead/a-progressive-ucc-must-protect-the-childs-bestinterests/article67256595.ece 22 Anushree Yadav, Impact of UCC on Guardianship and Adoption Laws in India ( Volume V Issue II | ISSN: 2583-0538, IJIRL, March 2025) https://ijirl.com/wp-content/uploads/2025/03/IMPACT-OF-UCC-ON-GUARDIANSHIP-AND-ADOPTION- LAWS-IN-INDIA.p df
hinder the acceptance of the reformed laws across the nation. The nationwide implementation of such a legislative framework must be introduced through consultative reform, prioritizing an effective implementation strategy to adequately introduce adoption and guardianship within the ambit of the uniform code. Jurisdictional Comparison Within the Indian national framework surrounding adoption and guardianship laws, the two primary legislatures are the HAMA and JJ Acts. The former is based on religious laws and the latter is secular, applicable to persons of certain religions. In conclusion, the existing frameworks lack complete uniformity. The Uttarakhand UCC does not address adoption or guardianship, thereby limiting the relevance to Article 44 in the secular approach to family law.
In terms of global jurisdictions, France, which has followed a uniform civil code since the Napoleonic code, has implemented a recognized unified set of laws to govern adoption under The French Civil Code, Book I. of Persons, Title VIII. This set of laws is comprehensive in nature, and has been implemented to be accessible to all citizens, as compared to the Uttarakhand UCC which does not include Scheduled Tribes (ST). Another key example is Portugal, which follows the established Código Civil, which provides clear rules and eligibility criteria relating to adoption. Conclusively, a successful model of adoption rights should ideally prioritize child welfare. Thus, the UCC of Uttarakhand may benefit and improve towards substantive convergence through integrating comprehensive measures followed by the aforementioned jurisdictions.
Conclusion While the current system, comprising the three legislations, offers some avenues for adoption it is plagued by inconsistencies, delays and confusing procedures. HAMA grants complete filial rights, but is limited by custom, gender restrictions, and a lack of centralized registration, leading to potential exploitation. The GAWA, however, only serves to create a ward-guardian relationship, thus denying adopted children fundamental rights, including inheritance, and leaving them vulnerable upon reaching adulthood. The JJ Act offers a secular and welfareoriented approach, but suffers from a significant disparity between prospective parents and adoptable children, along with a long and cumbersome process. Article 44 of the Indian Constitution which provides the directive for a Uniform Civil Code,
finds a crucial application in the realm of adoption. A unified adoption law would address the inherent disparities that currently exist based on religious affiliation. It would ensure that Indian citizens have equal legal capacity to adopt and that all adopted children receive the same rights and protections, regardless of religious affiliation. The Uttarakhand Uniform Civil Code, while a step towards legal unification, highlights both the potential and the pitfalls of such reforms. Its intent to establish a single, secular law for adoption is commendable, as it offers administrative clarity and attempts to correct historical injustices. However, its perceived reliance on Hindu personal law as a guide to create adoption laws raises concerns about majoritarianism.
Furthermore, its implementation is restricted only to the state and thus creates new interstate disparities, potentially leading to complications in family matters. This further highlights the need for a national, well-drafted unified adoption law that genuinely transcends religious and cultural biases, focusing solely on the best interests of the child and the principles of equality and justice for all citizens. Implementing a single, unified adoption law across India would offer numerous benefits. Primarily, it would streamline the adoption process to become more efficient and transparent, thereby reducing the scope for illegal adoptions and child trafficking. Second, it would ensure uniform rights and obligations for both adoptive parents and adopted children, providing legal certainty and security for all involved.
This would include the essential right to inheritance, that the GAWA denied to non-Hindu adopted children. Most importantly, it would unequivocally prioritize the welfare of the child, aligning India's legal framework with international conventions such as the United Nations Convention on the Rights of the Child. Such a law would ensure that the personal act of love, that is adoption, is dignified and legally secure for every child and every family in India, and treats all the people involved fairly and equitably, regardless of their religious background.