• Private adoption by mutual consent

Dear Sir/Madam,

Me and my wife were contacted with a case of a 7 day old healthy baby born out of wedlock being put up for adoption. While we have good reference about the family and medical documents of the child, we are not sure if there are any legal issues with private adoption by mutual consent as per the CARA guidelines.

We are not related to the family in any way and are not currently listed in CARA as Prospective Adaptive Parents. Even the child is currently with the family and not surrendered to any orphanage. Is there a legal way for us to adopt this child as a private adoption by mutual consent? If yes, what should be the way to proceed in this case?

Thanks
Asked 4 years ago in Family Law
Religion: Hindu

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10 Answers

Hello,

The best way is to approach the CARA people and accordingly they will assist you with the same.

The adoption can be done from individuals.

The CARA people are very helpful and as such they will help you in the entire process of adoption as per the recent guidelines of 2017.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Biological parents can give child in adoption to you

2) there should be giving and taking ceremony

3) deed of adoption should be executed duly stamped and registered

Ajay Sethi
Advocate, Mumbai
87975 Answers
6207 Consultations

5.0 on 5.0

If the parents of the child to be given in adoption and the adoptive parents are Hindus by religions, then the adoption can take place under the provisions of the The Hindu Adoptions and Maintenance Act, 1956.

Assistance of CARA or the procedures therein need not be complied in this circumstance.

The Adoptions and Maintenance Act of 1956 dealt specifically with the legal process of adopting children by a Hindu adult, and with the legal obligations of a Hindu to provide "maintenance" to various family members including their wife or wives, parents, and in-laws.

Under this act only Hindus may adopt subject to their fulfilment of certain criteria.

The first of these asserts that the adopter has the legal right to (under this Act that would mean they are a Hindu).

Next, they have to have the capacity to be able to provide for the adopted child.

Thirdly the child must be capable of being adopted.

Lastly, compliance with all other specifications must be met to make the adoption valid.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

Dear Parents,

Your intention is very bonafide and smart but we must adhere to the rules. Your proposal may not be wise as it invites some problems in future. Any how such parents their child may be asked be listed by the CARA and then adopt the same child. The rules are as follows:

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Adoption – Procedure

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

Central Adoption Resource AuthorityMinistry of Women & Child DevelopmentGovernment of India

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Frequently Asked Questions (FAQ’s)

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http://www.cara.nic.in/PDF/faqs.pdf

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Child Adoption Procedure In India

Can I adopt if I already have a child?

Yes. The gender of the child becomes a factor here. The Hindu Adoption and Maintenance Act, 1956 (HAMA, under which Hindus, Jains, Sikhs, Buddhists and Arya Samaj adopt) allows you to only adopt a child of the opposite gender to the one you already have. There are no such diktats under the other 2 adoption laws, namely the Guardians and Wards Act, 1890 (GAWA) and the Juvenile Justice Act (JJA 2000, amended in 2006), which has enabled many Indians to adopt a child of the same gender. Your child, if old enough, will be asked to express her views on the adoption, in writing.

http://www.womensweb.in/articles/adoption-your-questions-answered/

Parents adopting a child under the Hindu Adoption and Maintenance Act (HAMA) could soon be required to mandatorily register the adoption with country’s apex adoption body as part of efforts to check trafficking, a senior government official said.

Prospective parents can adopt a child under the stringent Juvenile Justice (JJ) Act, 2015. Additionally, Hindus, Buddhists, Jains and Sikhs have the option of formalising an adoption through the 60 year-old HAMA.

Officials say that while the JJ Act has provisions for verifying the source of the child as well as a thorough background check of the prospective parents, these pre-requisites are missing from HAMA, thereby, allowing many to take advantage of its loopholes.

Draft Cabinet note

“The Ministry of Women and Child development has prepared a draft Cabinet note proposing an amendment to HAMA in order to make it compulsory for parents to register with the apex adoption body, Child Adoption Resource Authority (CARA),” a ministry spokesperson said.

The note is being circulated among the ministries of finance, home affairs and law and the Prime Minister’s Office, before it is taken up by the Union Cabinet, the official said.

“Adoption under HAMA is very simple and two Hindus can exchange a child after filing a deed. We did a sample check and discovered that the number of adoptions under HAMA is too high and we suspect that a lot of these involve trafficked children,” the spokesperson said.

The ministry has proposed changes to HAMA so that parents who adopt a child mandatorily register their deed of adoption on CARA’s web portal, following which they will be issued a certificate of adoption.

Need for a registery

CARA CEO Lt. Col. Deepak Kumar said that the move will allow it to maintain a ‘national adoption register’ which will compile data on adoptions under HAMA, in addition to those that take place through its web portal.

“HAMA is a big hole in our net. We need to widen our net so that we can monitor all adoptions. But first we need to record these by having a national adoption register,” Kumar told PTI.

The official explained that the adoption agency carried out a study where data from one of the total 22 sub-registrars in Delhi was collected, which showed that 145 adoption deeds were registered in the past three years.

He added that if this data is extrapolated, it can be assumed that over 3,000 children were adopted under HAMA in the past three years in Delhi alone.

“But these are only those adoptions that are actually legally formalised. We found out from the Collector of Stamps in Delhi that in 14 months there were 3,200 stamps sold for the purpose of adoption. If all these stamps are being used lawfully, we should have seen nearly 9,000 adoptions during these three years,” Kumar explained.

Changes and reforms

In a bid to reform the adoption procedure in the country and bring more transparency, the Union Ministry of Women and Child Development brought a new set of guidelines in August, 2015.

For the first time, the entire adoption procedure was transferred online, to be monitored by the Central Adoption Resource Authority, the nodal body regulating adoptions in India.

However, despite the new mechanism, CARA hasn’t seen an increase in adoption and recorded a mere 3,788 adoptions across the country in 2016, while there were four to five times the number of parents waiting to bring home a child.

Officials hope that once they have data on adoptions under HAMA, they will have a more realistic picture.

The Hindu Adoption and Maintenance Act, 1956, is applicable to Hindus, Jains, Buddhists, Sikhs and gives an adopted child all the rights enjoyed by a biological child.

Until the universal JJ Law came into existence, Muslims, Parsis, Christians and Jews had no adoption law and would have to approach the court under the Guardians and Wards Act, 1890, and get the guardianship of a child until he or she turned 18.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1) Contact nearest CARS who will explain u the procedure in detail.

2) There is no private adoption except only legal adoption.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

If both the parties are hindu the parents can give adoption under Hindu adoption and maimaintenaice act a child below 15 years of age with consent of both parents can be given into adoption by parents through valid adoption deed and giving ceremony wherein child can be adopted.

If otherwise the child is not hindu then under HAMA you cannot adopt privately you have to adopt through the CARA guidelines and you have to register before authority and seek adoption .

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You can do the following:

1. You may be aware about the adoption guidelines, please refer this: http://cara.nic.in/Parents/Guideline_RI.html ;

2. You may also need to go through the the Act: http://cara.nic.in/PDF/Regulation_english.pdf ;

3. You should not adopt my mutual consent;

4. You will need to execute a Adoption deed.

This is the legal process to adopt:

1. Prospective parents must register at a licensed adoption placement agency with the entire required document.

2. Then the worker from the agency will approach the parents for a home study.

3. After finding out a suitable child, the agency will call the prospective parents to meet the child.

4. If the parents approve, the agency may hand over the child once a foster care agreement is signed.

5. Meanwhile, the agency’s lawyer files a petition for adoption on behalf of the couple, either before the court or 6. Juvenile Justice Board, depending on the law under which the adoption will take place.

6. The agency representative and the parents register the adoption deed as a proof of completion of adoption.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Dear Querist

if the biological parents of the child are ready to give adoption to you and your spouse then execute an adoption deed which should be registered before the Sub-registrar of the area but all the parties should be Hindu.

there is no compulsion to registration under CARA.

Hindu Adoptions and Maintenance Act, 1956

7. Capacity of a male Hindu to take in adoption

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption:

PROVIDED that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

Explanation: If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.

11. Other conditions for a valid adoption

In every adoption, the following conditions must be complied with:

(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;

(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;

(v) the same child may not be adopted simultaneously by two or more persons;

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth 2[or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption:

PROVIDED that the performance of datta homam shall not be essential to the validity of adoption.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

Dear Client,

Why go for CARA, apply to sub registrar for adoption under Hindu Adoptions and Maintenance Act, 1956 by executing adoption deed. Nominal fees.

CARA is useful where any orphan or abandoned or surrendered child, here direct adoption from parents.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Cara rules are applicable to private adoption also.

Fresh guidelines are as hereunder

Adoption Procedure for Resident Indians

.Registration and home study of the prospective adoptive parents:

The Indian prospective adoptive parents irrespective of their religion, if interested to adopt an orphan or abandoned or surrendered child, shall apply for the same to Specialised Adoption Agencies through Child Adoption Resource Information and Guidance System by filling up the online application form, as provided in Schedule VI, and uploading the relevant documents thereby registering themselves as prospective adoptive parents.

The prospective adoptive parents shall opt for desired State or States by giving option for those particular States at the time of registration.

Registration on Child Adoption Resource Information and Guidance System would be a deemed registration in all Specialised Adoption Agencies of the State or States they have opted for.

The registration number of prospective adoptive parents shall be available with all the Specialised Adoption Agencies in those State or States, as the case may be.

The registration shall be complete and confirmed to the prospective adoptive parents immediately on receipt of the completed application form and requisite documents on Child Adoption Resource Information and Guidance System:

Provided that the documents shall be uploaded within a period of thirty days from the date of registration failing which the prospective adoptive parents have to register afresh.

The prospective adoptive parents shall get their registration number from the acknowledgement slip and use it for viewing the progress of their application.

The prospective adoptive parents shall select a Specialised Adoption Agency nearest to their residence for Home Study Report in their State of habitual residence.

The Home Study Report of the prospective adoptive parents shall be prepared through the social worker of selected Specialised Adoption Agency and in case they are unable to conduct Home Study Report within stipulated time, they shall take the assistance of a social worker from a panel maintained by the State Adoption Resource Agency or District Child Protection Unit, as the case may be.

The Specialised Adoption Agency or the empanelled social worker of the State Adoption Resource Agency or District Child Protection Unit shall counsel the prospective adoptive parents during the home study.

The Home Study Report shall be completed in the format given in Schedule VII, within thirty days from the date of submission of requisite documents and shall be shared with the prospective adoptive parents immediately, thereafter.

The Home Study Report shall be posted in the Child Adoption Resource Information and Guidance System by the Specialised Adoption Agency as soon as it is complete.

The Home Study Report shall remain valid for three years and shall be the basis for adoption of a child by the prospective adoptive parents from anywhere in the country.

The prospective adoptive parents shall be declared eligible and suitable by the Specialised Adoption Agency based upon the Home Study Report and supporting documents and in case any prospective adoptive parent is not declared eligible or suitable, the reasons for the same shall be recorded in the Child Adoption Resource Information and Guidance System.

The prospective adoptive parents may appeal against the decision of rejection to the Authority as provided regulation 59.

The appeal referred to in sub-regulation (14) shall be disposed of within a period of fifteen days and the decision of the Authority in this regard shall be binding.

The District Child Protection Unit shall facilitate online registration of application of prospective adoptive parents, uploading of their documents and also for addressing technical difficulties faced by the Specialised Adoption Agencies.

The adoption of a child by the prospective adoptive parents, after completion of their registration and Home Study Report, shall depend upon the availability of a suitable child.

10. Referral of a child from a Specialised Adoption Agency through Child Adoption Resource Information and Guidance System to prospective adoptive parents:

The seniority of the prospective adoptive parents for child referral shall be from the date of uploading of documents and completion of registration process in Child Adoption Resource Information and Guidance System.

On the basis of seniority, the prospective adoptive parents shall be referred online profile of three children which will include the photographs, Child Study Report and Medical Examination Report, in their preference category, if any, from one or more Specialised Adoption Agencies through the Child Adoption Resource Information and Guidance System in one or more referrals.

After viewing the profile of the child or children, the prospective adoptive parents may reserve one child within a period of forty-eight hours for possible adoption and the rest of the children would be released by Child Adoption Resource Information and Guidance System for other prospective adoptive parents in the waiting list.

The Specialised Adoption Agency shall get the details of the prospective adoptive parents through the Child Adoption Resource Information and Guidance System for fixing an appointment with the prospective adoptive parents for matching, to assess the suitability of the prospective adoptive parents by an Adoption Committee as defined in sub-regulation (2) of regulation 2 and the Adoption Committee shall prepare the minutes of the meeting as per format provided in Schedule XXVII.

The quorum of the Adoption Committee shall be two members and the quorum of the Adoption Committee in case of adoption from a Child Care Institution shall be three members, while the presence of one official from the District Child Protection Unit would be mandatory.

The Specialised Adoption Agency shall also organise a meeting of the prospective adoptive parents with the child.

The entire process of matching shall be completed within a maximum period of twenty days from the date of reserving the child.

The Specialised Adoption Agency shall counsel the prospective adoptive parents when they visit the agency for matching.

While accepting the child, the prospective adoptive parents shall sign the Child Study Report and Medical Examination Report which may be downloaded from the Child Adoption Resource Information and Guidance System, in the presence of the social worker or chief functionary of the Specialised Adoption Agency and the Specialised Adoption Agency shall record the acceptance by the prospective adoptive parents in the Child Adoption Resource Information and Guidance System.

In case the prospective adoptive parents are not selected for the child by the Adoption Committee, the reason for non-selection of the prospective adoptive parents shall be recorded in the Child Adoption Resource Information and Guidance System.

If grounds of rejection are found to be due to systemic error or on non-justifiable reasons, seniority of the prospective adoptive parents shall be retained.

In case the prospective adoptive parents do not accept the reserved child or the Adoption Committee does not find the prospective adoptive parents suitable, then the prospective adoptive parents shall be relegated to the bottom of the seniority list, as on that date, who may avail a fresh chance when the seniority becomes due and the same procedure shall be followed in the subsequent chances.

In all cases referred to in sub-regulations (12), the reasons for not considering the child have to be clearly stated in Child Adoption Resource Information and Guidance System.

The registration of prospective adoptive parents shall continue till child adoption, with revalidation of the Home Study Report in every three years.

The prospective adoptive parents may also get the Medical Examination Report of the child reviewed by a medical practitioner of their choice before giving their acceptance for adoption of the child.

11. Pre-adoption foster care:

The child shall be taken in pre-adoption foster care by the prospective adoptive parents within ten days from the date of matching, after signing the pre-adoption foster care undertaking in the format provided in Schedule VIII.

12. Legal procedure:

The Specialised Adoption Agency shall file an application in the court concerned, having jurisdiction over the place where the Specialised Adoption Agency is located, with relevant documents in original as specified in Schedule IX within ten working days from the date of matching of the child with the prospective adoptive parents and in case of inter-country adoption, from the date of receiving No Objection Certificate from the Authority, for obtaining the adoption order from court.

The Specialised Adoption Agency shall file an application in the given format as per Schedule XXVIII or XXIX, as applicable.

In case the child is from a Child Care Institution, which is not a Specialised Adoption Agency and is located in another district, the Specialised Adoption Agency shall file the application in the court concerned, in the district where the child or the Specialised Adoption Agency is located and in such a case, the Child Care Institution will be a co-petitioner along with the Specialised Adoption Agency and the Child Care Institution shall render necessary assistance to the Specialised Adoption Agency concerned.

In case of siblings or twins, the Specialised Adoption Agency shall file single application in the court.

Since an adoption case is non-adversarial in nature, the Specialised Adoption Agency shall not make any opposite party or respondent in the adoption application.

The court shall hold the adoption proceeding in-camera and dispose of the case within a period of two months from the date of filing of the adoption application by the Specialised Adoption Agency, as provided under sub-section (2) of section 61 of the Act.

The adoptive parents shall not be asked in the adoption order to execute any bond or make investment in the name of the child, considering the fact that their psycho-social profile and financial status have already been ascertained from the Home Study Report and other supporting documents.

The Specialised Adoption Agency shall obtain a certified copy of the adoption order from the court and shall forward it to the prospective adoptive parents within ten days and it shall also post a copy of the order and update the relevant entries in the Child Adoption Resource Information and Guidance System.

Registration of an adoption deed shall not be mandatory as per the Act.

The Specialised Adoption Agency shall apply to the birth certificate issuing authority for obtaining the birth certificate of the child within three working days from the date of issuance of adoption order, with the name of adoptive parents as parents, and date of birth as recorded in the adoption order and the same shall be issued by the issuing authority within five working days from the date of receipt of the application.

The Specialised Adoption Agency shall submit an affidavit to the court while filing a petition as provided in Schedule XXIII.

13. Follow-up of progress of adopted child:

The Specialised Adoption Agency which has prepared the Home Study Report, shall prepare the post-adoption follow-up report on six monthly basis for two years from the date of pre-adoption foster placement with the prospective adoptive parents, in the format as provided in Schedule XII and upload the same in Child Adoption Resource Information and Guidance System along with photographs of the child.

In case the adoptive parents relocate, they shall inform the agency which has conducted their home study and the District Child Protection Unit of the district where they relocate.

Prashant Nayak
Advocate, Mumbai
27291 Answers
88 Consultations

4.4 on 5.0

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