ADOPTION UNDER NON-HINDU LAWS

Adoption under Christian Law

Isabella Rossellini said, “Adoption has the dimension of connection, not only to your own tribe, but beyond, widening the scope of what constitutes love, ties and family. It is a larger embrace. By adopting, we stretch past our immediate circles and, by reaching out, find an unexpected sense of belonging with others.

Although adoption has existed since time immemorial, India did not have any codified law on adoption. The need was felt, as a result of which, a legal framework was established with a aim to protect the rights of the adopted child in India. The community of Hindus, Jains, Sikhs, and Buddhists can legally adopt a child under The Hindu Adoption & Maintenance Act, 1956. However, adoption in the normal sense is regulated according to the strict personal laws of Muslims, Christians, Parsis and Jews; hence, they can become guardians of a child through The Guardians & Wards Act, 1890. This blog will focus on the requirements of adoption and becoming a guardian for Muslims, Christians, Parsis and Jews in India.

The Guardians & Wards Act, 1890

Muslims, Christians, Parsis and Jews in India can only take a ‘guardianship’ under The Guardians & Wards Act, 1890 (“Act”). Guardianship is not equivalent to having a biological child, unlike adoption under The Hindu Adoption & Maintenance Act, 1956. Under the Act, a child who has not completed 18 years of age is considered a minor.

To become a child’s guardian, one has to apply to a court. The application should contain all the information, including information about the guardian and the reasons for seeking guardianship. Once the court admits the application, a date for a hearing would be set, and the relevant evidence is placed before the court. The court uses its discretionary power and considers the interests of the minor, age, sex, religion, compatibility with the guardian, the death of the parents, etc before allowing an applicant to become a guardian. The minor’s preference may also be taken into consideration. Unlike under The Hindu Adoption & Maintenance Act, 1956, this Act allows a minor and his property to have more than one guardian.

Guardianship under Muslim personal law 

Adoption in Muslim personal law is known as “kafala”. The practice is highly regulated by Islamic law. The adopter is a a “guardian” and the adoptee, a “ward”. It is unlawful to attribute one’s ward to oneself, as if there is a biological relationship. This is because Islam aims at safeguarding one’s biological lineage. There are a few rules in Islam regarding becoming a guardian to a ward:

  • A ward retains their own biological family name and does not change it to match that of the guardian’s family.
  • A ward inherits from his or her biological parents, but does not automatically inherit any property from the guardians.
  • If the ward is provided with property or wealth from the biological family, the guardians are responsible to take care of the property as though they are trustees of the ward. The guardians cannot coincide the ward’s property/wealth with their own. 

These rules emphasize that the guardians are not taking the place of the biological family; they are trustees and caretakers of the child. Their role is very clearly defined, but nevertheless very valued and important. 

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