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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Women and their rights to adopt

 

“The world may not change as a result of our adoption, but the child’s world will.”

The action of adopting anything as your own is known as adoption. Adoption is the judicial process of a being a parent to a child who is not biologically related to you. Adoption is not a charitable act. It’s about providing a child with the same quality of care and responsibility as a biological child when you offer them a stable family life.  Hindu Adoption and Maintenance Act of 1956 enshrines the provisions in relation to Hindu adoption. The Hindu Adoption and Maintenance Act, in addition to adoption, addresses the subject of child, parent, and dependent maintenance. This act is divided into four sections, each dealing with a different aspect of adoption and maintenance. Today, a large number of families are enrolling for adoption, and it’s not just because they can’t have children. In the fiscal year 2018-19, there were approximately 3374 domestic and 653 international adoptions and it’s astounding to know that a greater number of female children are being adopted. Although there has been a shift in cultural understanding, we still have a long way to go.

Under Hindu Law, there is a major concern about women’s rights when it comes to adoption. Chapter 2 of Hindu Adoption and Maintanance Act covers the matter of adoption under the ambit of section 5 to 17. A Hindu woman’s capacity to adopt a child is one such provision. The Hindu Adoption and Maintenance Act of 1956, Section 8, governs a Hindu woman’s ability to adopt a child. It lays down three requirements for a Hindu woman to be able to adopt a kid. She should be in good mental health, she must have the prospects to be a major, she should not marry, or if she is married, she should not marry someone whose marriage has been dissolved, whose spouse is deceased, or who has immediately and totally abandoned the world, or who has ceased to be a Hindu, or who is of unsound mind. Under the Hindu Adoption and Maintenance Act, 1956, a Hindu female can adopt a son or daughter if either of the aforementioned qualifications is met.

Condition for valid adoption by a female

Adoption by a female is subject to certain conditions.Adoption of a boy child by a woman is a common occurrence.If a Hindu woman wishes to adopt a malechild, she first must meet the standards set forth in Section 8 of the Hindu and Maintenance act and demonstrate that she is capable of doing so.She must also be 21 years old or older than the kid she desires to raise. When a son has been adopted, the adoptive mother must not already have another Hindu son, grandson, or great-grandson. Likewise for daughter under the provision of Section 11 of the Act.

If the Hindu woman is currently in a wed-lock, one of the following conditions must be met in order for her to be eligible to adopt: Either- A divorcee or widower, or whose spouse has given up the world, or whose husband has stopped being a Hindu, or whose husband is mentally ill.

It was stated in the case of Lalitha V. Union of India, A.I.R 1991 Karnataka, that Section 8 of the Hindu Adoption and Maintenance Act, 1956 exclusively protects the ability to adopt women who are single. Beyond that category, a married woman stands. She cannot complain of discrimination or a breach of Art. 14 of the Constitution because a woman in marital status falls into a separate class i.e., Section 7 of the act According to Section 7, a male Hindu of sound mind who is not a minor may adopt a son or daughter, provided that if he has a living wife, he must adopt only with her consent unless the wife has completely and permanently disavowed the world, has stopped to be a Hindu, or has been suffering from mental illness.

ShrinivasKrishnarao Kango v. Narayan Devji Kango, 1954 AIR 379 In this case, an adopted child filed a petition for a piece of his father’s joint undivided property. The respondents maintained that the adopted kid was only entitled to property that was ancestral in character, not self-acquired wealth. When a Hindu former wife or widow makes an adoption, the impact of the adoption is that it links back by making him suitable for all of the privileges of a son from the day of the dad’sdeath. The court determined that in circumstances when a kid is adopted, the effect of adoption creates a legal doctrine, and the child becomes the natural heir.

Another case, if the spouse agreed to his wife’s adoption of a son, it was held in the case of DashrathRamchandraKhairnar, 1976 that such adoption would be invalid because it would be in violation of section 8 of the Hindu Adoption and Maintenance Act, 1956.

Can a Single woman adopt a kid?

The answer to this question is YES.

Adoption is often misunderstood to imply that you must be married to adopt. If a single person wishes to add a baby to her life, she can adopt. A single woman can adopt kids of any sexual identity, but a single guy cannot adopt a daughter. In the event of a married relationship, both spouses must agree to the adoption. Adoptive parents should be physically, intellectually, and emotionally healthy, financially prepared, and free of any life-threatening medical conditions, regardless of their marital status.

Unmarried Women And their rights under Personal Laws

Adoptions for Hindus which includes Sikhs and Buddhist are up held by the Hindu’s adoption and maintenance act, 1956 says any female Hindu is eligible to adopted child wear in she may be unmarried and in case her husband is not living or her marriage has been dissolved by the court order husband is legally declared to be incompetent to take a child in adoption.


Adoptions in case of Muslims, the traditional Muhammad in lord do not recognise total adoption but Section 8 of the guardians and what act 1890 allows them to take up the guardianship of kid. But there are certain set of rules to mainly preserve the biological family line and not to confused with it. The Juvenile Justice act or the care and protection of children act 2000 legalizes Muslims to adopt too.

For Christians and Parsis if someone wants to adopt, he can approach the court and obtain certain legal permissions for aforesaid under the guardians and ward act 1890 since even they do not recognise full adoption.

Which children are up for adoption?

The kid could be a “orphan, abandoned, or surrendered child, proclaimed lawfully free for adoption by the Child Protection Committee,” or a “child or children of a previous marriage, relinquished by the natural parent(s) for parenthood by the step-parent.” Adoption of a relative’s child is also possible under Section 2 of the Juvenile Justice Act, 2015.

Procedures for adoption

According to CARA’s official website, parents who intend to adopt a child must first register online with CARA (Central adoption research authority), where they can indicate their preferences and provide papers. Following receipt of the registration, the parent can choose a Specialised Adoption Agency based on their location for a Home Report developed by a social worker. The report is valid for three years and validates the parent’ fitness to adopt children. Parents are provided referrals of children who are legally available for adoption after they have been judged to be eligible and suitable. Within 48 hours, prospective adoptive parents must reserve a child who has been referred to them. Following that, an arrangement is made with the agency’s adoption committee to match the PAP (Prospective Adoptive parent) with a suitable child.

Why do single women and men in India struggle to adopt a child despite a favourable law?

To make the process easier and more accessible. CARA issued new adoption standards in 2015 in order to streamline the process. There are no grounds of sexual orientation on an applicant’s marriage status under these standards, save that a single male cannot adopt a girl child. The legislation became quite beneficial for unmarried women over the age of 40 in July 2017. Their adoption wait time has been shortened by six months, compared to the two-year norm for prospective adoptive parents. This has resulted in an increase in the number of solo PAPs, particularly women, registering for parenthood over the previous four years. CARA had 412 single women register for adoption in 2015-16. By climax of the year, the total had roughly doubled to 817. Despite the fact that this was barely one-twentieth of the 18,000 registrations that year, the figures continue to rise.

Women given same right as men: Amendment

The bill of personal law, which amends the guardians and wards act of 1890 and the Hindu adoption and maintenance act of 1956, was enacted by Parliament. If a couple adopts a child, the man is the natural guardian, according to the Guardian and Ward Act, which applies to Christians, Muslims, Jews, and Parsis. The 120-year-old Act has been amended to allow both the mother and father to be nominated as guardians, making the process gender-neutral. Another change to the Hindu Adoption and Maintenance Act aims to make it easier for married women to adopt or give their children up for adoption. Unmarried and divorced women, as well as widows, were earlier permitted to adopt children, however women who have been separated from their husbands and are involved in a long divorce battle were not. Since the new amendment came into place it gives women the right to adopt with consent of her husband with whom she is involved in matter of divorce from a long time. The amendments that took place by far has always been in favour of woman and their rights. Males and females must be treated equally in all aspects of life, including employment, work, and income. The concept of equality does not exclude the continuation or adoption of policies that provide specific benefits to women who are unrepresentative. Now, women all across the nation get equal rights in adoption of a child as well as an individual say in guardianship.

Other associating grounds why women are accepted with this dynamic change,

It used to be a presumed fact that children should always stay with their mother following a divorce. In fact, there has been some states that has passed laws stating that there is no custody preference for women.
In spite of such a change the modern era, mothers are still more reluctant to get custody when parents do get divorced. Judgements pertaining in smaller quotes do vary from state to state. The fact that must be determined in custody arrangements is, that the best interests of the child matters in his/her new future not and not just favouring the pre-decided rule book. As most marriages are structured the factors court consider in discerning where those best interest slice are more likely to favour mothers.
Most parents would agree that their child’s best interest should prevail if the put rancour aside. But being on the male counterpart if one is trying to get joint physical custody soul custody or simply the most generous visitation with once child possible needs to be aware what the judge will be looking for at when deciding custody issues.

Even if there is an increasing chance of acceptance of the concept of single parenting, people aspiring to adopt face numerous obstacles from the parents, partners families and society at large. The ideas that of a child may prosper well in the ideal two parents’ setup compromising of a father and a mother in a loving, compatible relationship still holes impeccable. Parenting at once by one, would require a solid support system which can provide necessary help and relief with the times of crisis like medical care after school care job related travel and any other personal grievances. A break through regarding this problem would be hiring adoptive agencies, but can be biased towards single male and may scrutinize them on the contrary.

Problems arising Intercountry adoption
Whenever there is a inter-country adoption taking place, there are various possibilities of an adopted child becoming a target of human trafficking. A lot of cases have been pertaining over the country where they were passed on to human traffic cause in exchange of money. Also, in intercountry adoption follow up, gets difficult which can become a factor for negligence and abuse by adoptive parents and their food a lot of countries impose restrictions when you do come to a single parent regarding adoption.

The Psychological Impact of females with regards to single parenting

The Indian society in the modern era has been witnessing some dynamic changes. With the plethora of traditional biasness, one such favourable change has been experienced and accepted by the Indian society which is of single parent adoption. Of becoming single parents through adoption are on a study rise. This new vision towards life is sizeable for both the genders. The single mothers in this century have two primary challenges the most prevalent gap of them is lacking an adequate and meaningful support system for social and emotional support with them. This increased tendencies often bring isolation loneliness and unsupportiveness. The other ones who often act the financial safety which is to be decided via a financial heart shape and yet often make to money to receive financial assistance from community and government funded subsidy programs to fill in up these gaps.

Advantages of being a single mother

The entire authoritative parenting decisions rests on a single person while this may be intimidating in beginning but sooner a letter the realisation would stick that it is his principles that the child would bore.

Single parents might have a choice of how the monetary funds are to be exhausted for the children. Position to plan they are finances and understand and acknowledge their child regarding their financial needs increases in the case of single parenting.

While being a single parent it means to handle almost all of the work by the own self, which becomes observatory for the child and the asserting replay in the child’s character from a very young age.

Single parenting wood and hands the child being a team player and walk together is a team instead of making him or her realise on the parent for every little thing.

Sense of undivided motherly attention is something to be observed and shower over the child.

Relationships no matter social, financial, professional and personal, would be dealt more like a self-enriching bond would be try to look up on them as a balancing act. Approach decreases with time with essence of independence striking into the life for the woman.

 

Statistical Report of Women Parenting on their own

 

Accordingly report by the United Nations women of 2019-20, estimated that a percentage of 4.5 percent of Indian households that is of 13 million houses are run by single mothers. Report also threw a light on the significant numbers of lone parent families across the country which estimated to about 32 million families to be living in extended households. While in the global scenario data from about 89 countries show that out of all the loan parent households, single mothers had over 84 percent then depicting to 101.3 million.
The report steeply speaks about that because women and men around the globe are delaying marriage and more women are becoming enabled to complete the education and a establishing themselves into labour force can support themselves financially.
On another note, counting with the positives, the poverty rate of single mother households in India is about 38% which is significantly higher in comparison to dual parenting household that is only of 22.6% according to a report of democratic and health survey.
Various other solutions were offered by the report to which was to combat unstable income in families led by single mothers such as diverse and non-discriminatory family rules, accessible sexual and reproductive healthcare guaranteed access to adequate income of women and prevention and prompt reasons to domestic violence against women.

Anita Bhatia, the deputy executive director of UN Women quoted,

“While some progress is evident within the Asia-Pacific region, women and girls continue to be discriminated against and their contributions undervalued. Governments must renew their commitment to gender equality by identifying clear priorities and actions with set timelines and resources, in line with the 2030 agenda and Sustainable Development Goals.” 

Other reasons of adoption

Data from the National Survey of Family Growth

  • It is reported in US that nearly out of every 10 adult women 4 of them aged 18–44 in 2011–2015 had ever considered adopting a child, while less than 1% (0.7%) of women aged 18–44 had ever adopted a child.
  • Approximately one-half of women aged 18–44 with ongoing fertility problems (52.6%) had ever considered to adopt.
  • With ongoing age fertility issue arises, and therefore percentage of women who were currently seeking to adopt a child was higher among women aged 25–34 and 35–44 compared with women aged 18–24, and among women with current fertility problems compared with women without fertility problems.
  • Women aged 35–44 were more likely to have ever adopted compared with women of other age groups since this age group faces the highest amount of fertility issues.

 

There are various other reasons why people make choose to adopt especially women. Growing a family, fertility common legal acknowledgement of a parental relationship with a non-biological child any other humanitarian grounds. From 1973, the National Survey of Family Growth (NSFG) has collected information from women on adoption and adoption related topics. The report provides the most recent estimates on current adoption and adoption related behaviours among women between the age group of 18 to 44 in the United States in 2011 to 2015.



Conclusion

With the globe changing so rapidly society is changing at a greater pace. During the whole day is no one would have ever thought of a woman being a mother without any requirement of a father to exist but technology and changing needs if the society and the societal norms with the modern mindset have even made this possible. Maybe in numerous reasons behind such happenings, either because they are divorced or because they don’t want to get married due to several are the reasons but they want to have a child. With the help of In vitro fertilization where male donate the sperm and his identity is not to be disclose.

Technology taking its height have a greatly held in treating in fertility as aforesaid.
In the landmark judgement of Shalu Nigam and ANR vs The Regional Passport Officer and others, held that a mother’s name alone is sufficient in the passport as a single mother and becomes a natural garden of the child and the father’s name is not deemed to be compulsory.
In the present litigation of Kerala High Court was a mindful and innovative step towards holding high the rights of single mothers. It has setup president for the future judgments as well as pay the way for a better societal position of a mother not in a medical bond who must be treated with equality and her privacy and personal choice must be respected by all. It would not specifically be a compulsion of putting names of biological fathers to in such birth and death certificate of the child where even though the column demands it it can be completely optional.

Such judgments provide better entitlements for women following liberal interpretation and amendments according to the modern plethora family formation. These judgements presumably try to fix in the constructional loop holes and carve the society towards a more modernized future.

References,

1.      Should single parent surrogacy be allowed in India ?, Health News, ET HealthWorld (indiatimes.com)

2.      Adoption vs Abortion: An Angle You May Not Have Considered (hli.org)

3.      Women Rights in India: Comprehensive Guide» (thelegallock.com)

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Authored By –

·         Aastha Prakash (3rdyear law student, Ramaiah Institute of Legal Studies)

Aastha Prakash – Aastha has incredible writing and research skills and you will never miss a flow in her writings. She has a deep interest in studying procedural laws, constitutional law, Hindu law and human right laws. She always keeps an eye for new socio-political development happening around.

Co-author –

·         Shruti Tarafder (2ndyear law student, University of Engineering and Management, Kolkata)

Shruti Tarafder – A young learner with a deep liking towards statistical writing on the emerging fields of constitutional and family law.

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