Adoption Under The Juvenile Justice Act, 2015
Author: LawSphereX
Category: Criminal Law
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ADOPTION UNDER THE JUVENILE JUSTICE ACT, 2015
Disha Singhal, Symbiosis International University, Pune
ABSTRACT
The concept of adoption in India has evolved from a spiritual and lineagebased practice into a modern, secular legal process focused on child welfare. Historically rooted in Hindu customs and practices, adoption was initially confined to religious and familial duties, particularly ensuring the continuation of a male lineage. However, societal progress and legislative reforms paved the way for a broader and more inclusive understanding of adoption. The Juvenile Justice (Care and Protection of Children) Act, 2015 revolutionized adoption in India, ensuring uniformity across religions and aligning domestic laws with global standards like the United Nations Convention on the Rights of the Child.
This paper examines the JJ Act's provisions governing domestic and inter-country adoption, focusing on key procedural mechanisms such as the Child Adoption Resource Information and Guidance System (CARINGS) and the role of the Central Adoption Resource Authority (CARA). Landmark judicial pronouncements, such as Shabnam Hashmi v. Union of India and Laxmi Kant Pandey v. Union of India, further underscore the secular nature of adoption and the safeguards to protect children’s rights. Despite the legal advancements, challenges persist. Issues such as procedural delays, socio-cultural stigmas, and difficulties in inter-country adoptions highlight areas needing reform. This study critically analyzes these challenges while emphasizing the importance of transparency, accountability, and child-centric adoption practices under the JJ Act, 2015.
Keywords: Adoption, Child Welfare, Procedure, Orphaned and Surrendered Children, Secular Framework, Guardianship, Inter-country Adoption,
CARA
INTRODUCTION
The tradition of adoption among Hindus stemmed from the cultural significance placed on having a male child. Scriptures mandated that every Hindu should strive to have a biological child, with adoption being a secondary option. Natural-born children were considered the only representatives of a man, and adopting a secondary son was initially viewed as unacceptable. According to Hindu mythology, adoption historically focused on adopting a son to ensure the continuity of the lineage and the performance of funeral rites. This emphasis on adopting a male child is reflected in the Dharmasastras, which primarily address the qualifications for adopting a boy. Originally, adoption served both temporal and spiritual purposes, but in contemporary times, it also fulfills the emotional and parental desires of the adoptive parents.
In early Hindu philosophy, the practice of adopting females was not supported, as ancient scriptures prohibited wives or daughters from conducting funeral rites or reciting sacred texts. The prevailing belief was that only a male child had the power to release the deceased from suffering in the afterlife or redeem them from hell. In ancient India, the adoption ceremony (Dattahoma) held significant importance, requiring the presence of relatives for its validation. According to Smrtikaras, adopting a child entitles the adoptive parent to inherit the entire property, and the adopted child retains rights to the property even if a biological son is born later. 1 According to Manu, adoption is described as the act of taking a son to fill the void left by the absence of biological offspring.
It involves transferring a son from his birth family to another family, in the form of a gift by his natural parents. 2 In this process, the adopted son is considered to have been born into the new family, and he assumes all the rights associated with it, while his connections with his previous family are severed. Manu specifies that when parents give their son to another individual or family, provided that the recipient is of the same social class and shows affection, the son is legally considered as given away. The Juvenile Justice (Care and Protection of Children) Act, 2015”3 (hereinafter referred to as the JJ Act), came into effect in January 2016 that replaced the previous legislation known as the “Juvenile Justice (Care and Protection of Children) Act, 2000. ”4 This new Act was designed to consolidate and amend laws concerning children who are either in conflict with the law or
1 “Niraj Meena, Adoption Laws in India: Challenging Existing Law, (2017).”
2 “Samragyi Sajwan, Adoption in India: A Critical Analysis, 2 International Journal of Law (2018).”
3 “The Juvenile Justice (Care and Protection of Children) Act, 2015”
4 “The Juvenile Justice (Care and Protection of Children) Act, 2000”
in need of care and protection. It aimed to align with the standards outlined in The “Convention on the Rights of the Child”, which was adopted by the “General Assembly of the United Nations”. India became a signatory to this convention on December 11, 1992, emphasizing its commitment to safeguarding children's best interests. 5” In this particular assignment, the learner shall analyze various aspects of adoption under the JJ Act, 2015. According to Manu adoption is the “Taking of a son, as a substitute for the failure of a man issue”. Thus it is a transplantation of a son from the family in which he is born to another family where he is given by the natural parents by way of gift. The adopted son is thus taken as having been born in the new family. He acquires all the rights and status in the new family and his ties with the old family come to an end.
Manu says, “He whom his father and mother give to another as son, provided that the donee have no issue if required be of the same class, and affectionately disposed, is considered as a son given, the gift deed been confirmed by pouring water.
RESEARCH
OBJECTIVES
The objectives of this assignment are:
1. Investigate the historical context and colonial influences shaping the evolution of adoption
policies in India, focusing on legislative developments from the colonial era to independence.
2. Examine the legal framework governing adoption procedures and child welfare in India,
with a particular emphasis on changes in age criteria and treatment of juvenile offenders as per the Juvenile Justice (Care and Protection) Act, 2015.
3. Analyze the effectiveness and challenges of the Centralised Online Adoption System
introduced in 2015, assessing its impact on adoption rates, transparency, and the overall experience for prospective adoptive parents and children.6
RESEARCH
METHODOLOGY
This project draws extensively from a range of secondary sources, including government reports, scholarly journals, relevant literature, research papers, and articles. Additionally, it
5 “Gomati krishnanath Desai, An Overview of Child Adoption Laws in India, 4 GLOBAL JOURNAL FOR
RESEARCH
ANALYSIS (2015).”
6 “Juvenile Justice (Care and Protection of Children) Act, State of objects and reasons, No. 2,Acts of Parliament,
2016 (India).”
incorporates an analysis of pivotal cases and judgments handed down by both the Supreme Court and High Courts. Moreover, it synthesizes material gleaned from constitutional articles and Acts to conduct thorough legal research and analysis. HISTORICAL EVOLUTION OF THE JJ ACT The evolution of adoption policies and social reformation in India may have been influenced by the colonial rule under the British. The first legislation in India to address the differentiation of minors who committed offenses from adults was the Apprentices Act of 1850. The initial steps towards formalized care for children began with the enactment of the first Children’s Act in the Madras and Bombay Presidencies in 1920, which placed the responsibility of caring for destitute and neglected children on the state. The primary aim of this legislation was to ensure the welfare and protection of children.
However, the further uniform legislation on this matter was the Juvenile Justice Act of 1986. This Act was primarily based on the former act, which served as a model legislation for states and applied solely to Union territories. The Juvenile Justice Act of 1986 prohibited the use of police stations or jails for individuals covered under its provisions. It also introduced lighter punishments compared to those prescribed under the Indian Penal Code (IPC), such as counseling or community service, instead of incarceration. Under this Act, all girls under 18 years and boys under 16 years were considered 'juveniles. ' The disparity in treatment between genders was addressed by the Juvenile Justice (Care and Protection) Act of 2000, which standardized the cutoff age for all genders at 18 years.
This differential treatment was justified by the understanding that juveniles inherently differ from adults, possessing greater potential for rehabilitation and lesser comprehension of the consequences of their actions. These reforms had a positive impact on the development of adoption policies and broader social initiatives aimed at improving the welfare of children. THE JUVENILE JUSTICE ACT, 2000 AND THE AMENDMENT TO THE ACT “The amendment of the prior JJ Act of 2000 was chiefly driven by a rise in instances of rapes and murders committed by individuals between the ages of 16 and 18. Although the notorious Nirbhaya gang rape case7 was not directly tied to the JJ Act of 2015, it drew considerable attention to the issue of juvenile offenders participating in grave offenses.
One of the perpetrators in the Nirbhaya case, often cited as one of the most heinous, was a minor and received a sentence under the existing JJ Act. This event sparked extensive debates and conversations concerning the age at which individuals should be held criminally responsible in India, leading to the amendment and implementation of the JJ Act in 2015. 8 In response to public outcry, the amended Act allows for the trial of individuals aged 16 to 18 as adults if they are accused of committing "heinous crimes. " The decision to try such individuals as adults is determined by the Juvenile Justice Board (JJB), by the provisions of the Act. Under the amended Act, in cases where a child aged 16 or above is accused of a heinous offence, the Juvenile Justice Board is required to conduct a preliminary assessment.
This assessment evaluates the child's mental and physical capacity to commit the offence, their understanding of its consequences, and the circumstances surrounding the alleged offence. The JJ Act of 2015 prioritizes a child-centric approach in managing issues related to the welfare and rehabilitation of children. It brings forth several important provisions aimed at enhancing the legal framework, including a shift in terminology from “juvenile” to “child in conflict with the law” to remove the negative associations of the former term. 9 Additionally, it introduces new definitions such as orphaned, abandoned, and surrendered children, as well as distinctions between minor, serious, and severe offenses committed by children.
To further streamline adoption processes, the existing “Central Adoption Resource Authority” is upgraded to a statutory body, granting it enhanced authority to effectively carry out its functions. ADOPTION UNDER THE JJ ACT, 2015 “The JJ Act, 2015 applies to all Indian citizens and permits the adoption of two children of the same gender. It grants the status of parents and child, rather than guardian and ward, and extends the same rights available to biological children to adopted children. 10 This legislation is specifically designed to address the care, protection, development, and rehabilitation of juveniles in conflict with the law and children in need of care and protection.
Similar to the “Special Marriage Act 1954”,11 which allows individuals of any religion residing in India to marry under its provisions, the JJ Act provides a uniform and stable legal framework for justice across the country. It covers individuals up to the age of majority, i. e. 18 years.. ” 8 “BajpaiAsha, adoption Law and Justice to the child (Centre for child and Law, National law school of India University, Bangalore, 1996” 9 “Yash Arjariya, Adoption Under Juvenile Justice (Care and Protection of Children) Act, 2015, 3 International Journal of Law (2022). ” 10 “Bhargavi, A Critical Analysis of Laws on Adoption of Children, 2 Asian Journal of Multidisciplinary Research and Review (2021). ”
11 “The Special Marriage Act 1954”
“In the case of Shabnam Hashmi v. Union of India,12 the Supreme Court affirmed the right to adopt as a fundamental right protected under Part III of the Constitution. The court ruled that individuals seeking to adopt under the Juvenile Justice Act, 2000, have the right to do so regardless of their religion, caste, or creed. Additionally, the court noted that while Muslim law does not formally recognize adoption, it also does not prohibit couples from providing emotional and financial care for a child..” The objectives of this initiative are as follows:
1. To establish a comprehensive framework aimed at providing care, protection, treatment,
development, and rehabilitation for children requiring assistance and protection.
2. To safeguard the rights of children who find themselves in conflict with the law, ensuring
that they are treated with fairness, dignity, and opportunities for reform.
3. To facilitate the rehabilitation and successful reintroduction into society of children who
have engaged in unlawful behavior, with a focus on preventing recidivism.
4. To create specialized institutions and mechanisms, such as Child Welfare Committees
and Juvenile Justice systems, dedicated to addressing the needs of children in need of care and protection or those involved in criminal activities, thereby ensuring their proper care, treatment, and rehabilitation. The JJ Act 2015 is characterized by its secular nature, allowing individuals from various marital statuses—single, married, unmarried, divorced, or widowed—to adopt orphaned, abandoned, or surrendered children. Children who are reported missing are placed under the care of Child Welfare Committees and Child Care Institutions. An investigation, conducted jointly by the police and social workers, determines the legal eligibility of a child for adoption, with notices issued to ensure the child's social security. It established the Central Adoption Resource Authority (CARA) to oversee adoption procedures. WHO CAN ADOPT?
As per Section 57,13 the Prospective Adoptive Parents must demonstrate physical fitness, financial stability, mental alertness, and a genuine motivation to provide a healthy and nurturing environment for the child. Consent from both spouses is required for adoption. A minimum age
12 “M/S Shabnam Hashmi vs Union Of India & Ors (2014) 4 SCC 1”
13 “The Juvenile Justice (Care and Protection Of Children) Act § 57 (2015).”
difference of twenty-five years between the parent and the child is mandated. It necessitates the consent of both spouses if the adoption involves a married couple. However, single or divorced individuals are also eligible to adopt, provided they meet the required criteria and adhere to the regulations set forth by the adoption authority. It's important to note that single males are not permitted to adopt female children. Additionally, for any couple seeking adoption, a minimum of two years of stable marital relationship is required before they can be considered eligible to adopt a child. In the case of In Re: Adoption of Payal @ Sharinee Vinay,14 a petition was brought before the Court to determine whether a Hindu couple, already having a natural child of their own, could adopt a child of the same gender under the provisions of the Juvenile Justice Act of 2000 (JJ Act).
The Court concluded that the JJ Act specifically allowed for the adoption of certain children, namely those who were abandoned and in need of care and protection, constituting a distinct category of children for whom a procedure was established. While the Hindu Adoption Act imposed limitations on adopting a child of the same sex as the natural child, the Court emphasized the need to interpret the two Acts harmoniously. Consequently, the Court ruled that a Hindu couple could adopt a child under the JJ Act if the child met the criteria specified by the Act. In this particular case, the adoption was permitted as the child satisfied the requirements outlined in the JJ Act. presented before the Court concerning whether a Hindu couple, already having a biological child of their own, could legally adopt a child of the same gender under the provisions of the JJ Act.
The Court determined that the Act explicitly permitted the adoption of certain children, specifically those who were abandoned and in need of care and protection, forming a distinct category for whom a procedure was established. While the “Hindu Adoption and Maintenance Act, 1956”15 imposed restrictions on adopting a child of the same gender as the biological child, the Court stressed the importance of interpreting the two Acts in harmony. Consequently, the Court ruled that a Hindu couple could adopt a child under the JJ Act if the child met the criteria specified by the Act. In this specific instance, the adoption was sanctioned as the child fulfilled the requirements outlined in the JJ Act. A CHILD LEGALLY FREE FOR ADOPTION” As per Section 38,16 the process for declaring a child legally free for adoption is overseen by
14 “2010 (1) Bom CR 434”
15 “The Hindu Adoption and Maintenance Act, 1956”
16 “The Juvenile Justice (Care and Protection Of Children) Act § 38 (2015).”
the Child Welfare Committee (CWC) of the respective district. The procedure varies depending on the category of the child:
1 Orphan/Abandoned Child
Initially, the “Child Welfare Committee” endeavors to find the parents or guardians of the child. If it is verified that the child is indeed orphaned or abandoned, they are deemed legally eligible for adoption. This determination must be made within a period of two months if the child is up to two years old, or within four months if the child is older.
2 Surrendered Child
Parents or guardians who have voluntarily surrendered a child are provided with a two-month window to reassess their decision. If there is no change in decision within this timeframe, the child is officially declared legally available for adoption. PROCEDURE OF ADOPTION For parents residing in India-
1 Application Process
Prospective parents, regardless of their religion, must apply through a “Specialized Adoption Agency” via the “Child Adoption Resource Information and Guidance System”, submitting an online application form along with necessary documents. These institutions are responsible for ensuring that such children are placed for adoption in accordance with the provisions of the Act.
2 Home Study Report
The SAA conducts a home study report for the prospective parents, which is then posted on the “Child Adoption Resource Information and Guidance System”. This report serves as the basis for adoption and remains valid for three years.
3 Referral of Child
Prospective parents are referred to profiles of three children based on their preferences. They have 48 hours to select a child for adoption.
4 Pre-adoption Foster Care
After selecting a child, prospective parents sign necessary reports and the child is placed in pre-adoption foster care by the SAA.
5 Adoption Order and Birth Certificate
Upon court approval, an adoption order is issued, and the child's birth certificate is updated with the adoptive parents' names.
6 Follow-up
The SAA conducts post-adoption follow-up reports every six months for two years. For Parents Living Abroad-
1 Application Process
Prospective parents from Hague Adoption Convention signatory countries apply through an authorized Foreign Adoption Agency or Central Authority.
2 Referral of Child
Eligibility confirmation and completion of paperwork, prospective parents receive profiles of two children and have 96 hours to choose.
3 Pre-adoption Foster Care
Prospective parents may take the child into pre-adoption foster care in India with a No Objection Certificate while awaiting court approval.
4 Follow-up
Progress reports on the adopted child are submitted quarterly for the first year and semi-annually for the second year. In the case of Laxmi Kant Pandey v. Union of India,17 a letter written by an advocate raised concerns regarding malpractices by voluntary and social organizations involved in intercountry adoption, alleging that children were being subjected to poor conditions and exploitation, including forced beggary. The matter involved the adoption of children who were abandoned, destitute, and residing in child or social welfare homes. The SC recognized the issue as a matter of public interest and issued directives. As a result, the Court directed the establishment of a regulatory body called the “Central Adoption Resource Agency” to supervise the entire adoption process.
CARA was tasked with ensuring transparency, accountability, and the welfare of children involved in adoption procedures. For Adoption by Relatives-
1 Application Process
Biological parents’ consent or permission from the “Child Welfare Committee” is mandatorily needed, in addition to the child's consent if they are over five years old.
2 Court Application
Prospective adoptive relatives must file an application in court with necessary documents and parental consent.
3 Certified Order
After court approval, a certified adoption order is obtained and updated in the Child Adoption Resource Information and Guidance System. MINIMUM INCOME LEVEL FOR ADOPTION There is no specified minimum income requirement for parents to be eligible to adopt a child, according to the “Adoption Regulations 2017”.18 However, during the home study process, the prospective adoptive family's ability and willingness to provide adequate living standards for the child will be evaluated.
CONCLUSION
Adoption should not be viewed as a coercive measure by the government to impose children on unwilling parents. Instead, it should be seen as a voluntary decision made by eligible individuals to offer care, affection, and security to abandoned and homeless children. Regardless of religious beliefs, the love and bond towards these children should not be denied, as they are seen as gifts from the supreme power. The innocence and joy reflected in a child's smile exemplify the beauty of existence. “Adoption under the JJ Act, 201519 in India represents a significant legal framework aimed at providing care, protection, and rehabilitation for children in need. The JJ Act applies universally to all Indian citizens, granting the status of parents and child to adoptive families, thereby ensuring equal rights and opportunities for adopted children as for biological children.
The objectives of the JJ Act are multifaceted, aiming to establish a comprehensive framework for the care, protection, development, and rehabilitation of children in conflict with the law and those in need of care and protection. The Act seeks to safeguard the rights of children, ensure fair treatment and opportunities for reform, facilitate successful reintegration into society, and establish specialized institutions for their care and rehabilitation. The Act allows for adoption by individuals of various marital statuses, including single, married, unmarried, divorced, or widowed. However, certain restrictions apply, such as prohibiting single males from adopting female children and requiring a minimum age difference of twenty-five years between the parent and the child..
” The JJ Act also outlines procedures for declaring a child legally free for adoption, including the involvement of the “Child Welfare Committee” and specific timelines for different categories of children. Adoption procedures vary for parents residing in India and those living abroad, with detailed steps involving application, home study reports, referral of children, preadoption foster care, court approval, and follow-up reports. To address concerns regarding malpractices in adoption, the SC directed the establishment of the CARA to supervise the adoption process, ensuring transparency, accountability, and the welfare of children involved. CARA plays a crucial role in overseeing adoption procedures and ensuring the well-being of
19 “The Juvenile Justice (Care and Protection of Children) Act, 2015”
adopted children. With its comprehensive framework and emphasis on the benefit of children, the JJ Act serves as a cornerstone in promoting adoption as a means of providing loving and supportive families for children in need