Adoption in India — Hindu Adoptions and Maintenance Act, Juvenile Justice Act, and the CARA Process

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Overview

Adoption in India is not governed by a single, uniform statute. A Hindu prospective adoptive parent may complete a private adoption under the Hindu Adoptions and Maintenance Act, 1956 (HAMA), without any statutory authority’s involvement, provided the strict conditions of that Act are met. Persons of any religion — including Hindus who prefer not to use HAMA — may instead adopt under the secular route created by the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), read with the Adoption Regulations, 2022 framed by the Central Adoption Resource Authority (CARA). Muslims, Christians, Parsis, and Jews have no adoption recognised under their own personal law and, outside the JJ Act route, can only take a child into their care as a guardian under the Guardians and Wards Act, 1890. This article sets out each route, including the 2021 amendment that moved JJ Act adoption orders from courts to District Magistrates.

Adoption Under the Hindu Adoptions and Maintenance Act, 1956

HAMA applies to Hindus, Buddhists, Jains, and Sikhs, and permits a private adoption completed between the adopting parent(s), the person giving the child in adoption, and (where relevant) the child, without any court order or government agency being involved. Section 6 provides that no adoption is valid unless the person adopting has the capacity and right to take in adoption, the person giving in adoption has the capacity to do so, the person adopted is capable of being taken in adoption, and the adoption complies with the other conditions in the Act.

Capacity to Adopt and to Give in Adoption

Section 7 gives any male Hindu of sound mind who is not a minor the capacity to take a son or daughter in adoption; if he has a wife living, her consent is required (all wives’ consent, if more than one), unless she has completely renounced the world, ceased to be a Hindu, or been declared of unsound mind by a competent court. Section 8 gives the same capacity to a female Hindu of sound mind who is not a minor, subject to her husband’s consent on the same terms. Section 9 restricts the capacity to give a child in adoption to the father, the mother, or the guardian of the child — parents generally need each other’s mutual consent, subject to similar exceptions, and a guardian may give a child in adoption only with the prior permission of the court, on being satisfied that the adoption is for the child’s welfare.

Who May Be Adopted, and Other Conditions

Section 10 requires the child to be a Hindu, not already adopted, unmarried (absent an applicable custom permitting otherwise), and under fifteen years of age (again, absent an applicable custom). Section 11 adds further conditions: an adoptive parent must not already have a living son/son’s son/son’s son’s son when adopting a son, or a living daughter/son’s daughter when adopting a daughter; a male adopting a female child must be at least 21 years older than the child, and a female adopting a male child must be at least 21 years older; the same child cannot be adopted simultaneously by two or more persons; and the child must actually be given and taken in adoption with intent to transfer it from the family of birth to the adoptive family.

Section 12 deems an adopted child to be the child of the adoptive parents for all purposes from the date of adoption, severing and replacing its ties with the family of birth, subject to savings on prohibited marriage and pre-adoption vested property. Since HAMA imposes no statutory registration requirement, adoptive parents commonly execute and register an adoption deed as documentary proof of a valid adoption.

Adoption Under the Juvenile Justice Act, 2015 and the Adoption Regulations, 2022

The JJ Act, 2015 provides a separate, religion-neutral route to adoption available to any person, and is the exclusive route for inter-country adoption and for adopting orphan, abandoned, or surrendered children through Specialised Adoption Agencies. Section 56(1) provides that adoption shall be resorted to for ensuring the right to family for orphan, abandoned, and surrendered children, as per the Act, its rules, and CARA’s adoption regulations. Section 56(2) permits adoption of a child from a relative by another relative, irrespective of religion. Section 56(3) clarifies that nothing in the JJ Act applies to adoptions under HAMA — the two routes are parallel, so a Hindu family may choose either.

In Shabnam Hashmi v. Union of India, (2014) 4 SCC 1, the Supreme Court held that the JJ Act (then the 2000 Act) is an enabling, optional secular legislation giving a prospective parent the option of adopting an eligible child regardless of personal law, functioning much like the Special Marriage Act, 1954. The Court declined to elevate the right to adopt or be adopted to a fundamental right under Part III, holding that this would have to await wider societal consensus, but confirmed the secular JJ Act route remains available to any citizen without being displaced by personal law.

Eligibility of Prospective Adoptive Parents

Regulation 5 of the Adoption Regulations, 2022 requires prospective adoptive parents to be physically, mentally, emotionally, and financially capable, free of any life-threatening medical condition, and free of any conviction for a criminal act or pending accusation of a child-rights violation. Any prospective parent may apply irrespective of marital status or existing biological children, subject to conditions: both spouses’ consent is required for a married couple; a single female may adopt a child of any gender; a single male is not eligible to adopt a girl child; and a couple must have at least two years of a stable marital relationship (except in relative or step-parent adoptions) before a child is given to them.

Age criteria are fixed as on the date of registration and linked to the child’s age band — the permitted maximum composite age (couple) or maximum age (single parent) rises with the band, up to 110 years composite for a couple and 55 years for a single parent adopting a child aged 8 to 18. The minimum age difference between the child and either parent must not be less than 25 years; these age criteria do not apply to relative or step-parent adoptions. Couples with two or more children are ordinarily considered only for special-needs or hard-to-place children.

The In-Country Adoption Process

The Adoption Regulations, 2022 set out the process for resident Indian, non-resident Indian, and Overseas Citizen of India cardholder prospective adoptive parents, conducted through the Child Adoption Resource Information and Guidance System (the Regulations’ “Designated Portal,” commonly known as CARINGS):

Registration. Parents register online, choosing up to two states or a state cluster, and upload documents — a deemed registration with every Specialised Adoption Agency in the states chosen.
Home Study Report. Parents apply to a nearby Specialised Adoption Agency or District Child Protection Unit for a Home Study, completed within sixty days of submitting documents and valid for three years.
Referral and reservation. By seniority, parents receive up to three referrals (one month apart) with the child’s photograph, Child Study Report, and Medical Examination Report, and may reserve a child within 48 hours; failing to reserve out of three referrals means debarment from fresh registration for one year.
Matching, foster care, and filing. After the Adoption Committee assesses the match, the child enters pre-adoption foster care within ten days, and within the same ten days the Specialised Adoption Agency files a non-adversarial application (with no respondent) before the District Magistrate of the district where the child is located, through the District Child Protection Unit.
Order and follow-up. The District Magistrate holds the proceedings in camera and must dispose of the case within two months of filing, per Section 61(2) of the JJ Act. A certified copy goes to the adoptive parents, a fresh birth certificate names them as parents, and follow-up reports are filed every six months for two years.

The 2021 Amendment — From Courts to District Magistrates

Under the JJ Act as originally enacted in 2015, adoption orders under Chapter VIII were passed by a court. The Juvenile Justice (Care and Protection of Children) Amendment Act, 2021 (23 of 2021) substituted the word “court” with “District Magistrate” across the relevant provisions of Chapter VIII — including Sections 56(5), 58, 59, 60, 61, and 64 — so the power to pass an adoption order now vests in the District Magistrate of the district (which, under the amended Act, includes the Additional District Magistrate), not a civil court. The Statement of Objects and Reasons accompanying the amending Bill records that the District Magistrate, as the district’s Chief Executive Officer, was considered better placed to coordinate the stakeholders involved and address delay in adoption cases, given their non-adversarial nature. The Amendment Act also inserted sub-sections (6) and (7) into Section 101, allowing a person aggrieved by a District Magistrate’s adoption order to appeal before the Divisional Commissioner within thirty days, to be decided within an endeavoured four weeks (or before an equivalent officer notified by the State/UT, where no Divisional Commissioner exists).

Position of Non-Hindus Under Personal Law

Muslim, Christian, Parsi, and Jewish personal law does not recognise adoption as creating full parent-child status equivalent to a biological child. Absent a personal-law route, a person from these communities who wishes to take a child into their care outside the JJ Act’s secular route may apply to be appointed the child’s guardian under the Guardians and Wards Act, 1890, which creates a guardian-ward relationship rather than a full adoption — the child does not, by that guardianship alone, acquire the same inheritance rights from the guardian as a legally adopted or biological child would. As confirmed in Shabnam Hashmi, however, a person of any religion who wants a full, legally recognised adoption may instead proceed under the JJ Act and the Adoption Regulations, 2022, without having to forgo their personal law for any other purpose. This website’s separate article on child custody and guardianship law discusses guardianship (as distinct from adoption) under the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956 in more depth.

Important Points to Remember

HAMA adoptions are completed privately, without a court or government order, but only between Hindus and subject to the capacity, consent, and age conditions in Sections 6 to 11.
The JJ Act route is secular and available to persons of any religion; it is also the exclusive route for adopting an orphan, abandoned, or surrendered child through a Specialised Adoption Agency, and for inter-country adoption.
Since the 2021 amendment, the JJ Act adoption order is passed by the District Magistrate, not a civil court; an appeal lies to the Divisional Commissioner within thirty days.
The Adoption Regulations, 2022 eligibility criteria — including the minimum 25-year age gap and marital-stability/single-parent conditions — apply to JJ Act adoptions and differ from HAMA’s conditions.
Muslims, Christians, Parsis, and Jews have no personal-law adoption; outside the JJ Act route, the option is guardianship under the Guardians and Wards Act, 1890, which carries no equivalent inheritance right.

Useful Resources

Disclaimer: The information provided on this website is for general legal awareness and educational purposes only. It does not constitute legal advice, advertisement, or solicitation. No reader should act or refrain from acting based on this information without seeking professional legal counsel. Advocate Akhil Singh and this website are not liable for any actions taken based on the content provided herein.