Adoption, Guardianship and Acknowledgement

Key point: Same-sex child restrictions: an adopter cannot adopt a child of the same sex as an existing living Hindu child of that sex (the ‘living child’ rule).

Relation to JJ Act: Section 56(3) JJ Act 2015 excludes HAMA adoptions (Hindu adoptions continue under HAMA). The JJ Act (Amendment) Act 2021 transferred the power to issue adoption orders from courts to the District Magistrate (verify).

Cases: Lakshmi Kant Pandey v Union of India (1984): guidelines for inter-country adoption and welfare of the child; CARA arose from it.

Eligibility (Section 57): prospective adoptive parents (PAPs) must be physically fit, financially sound, mentally alert and highly motivated; a married couple must have two years of stable marital relationship and the consent of both spouses; a single woman can adopt a child of any sex; a single man cannot adopt a girl child. A person with three or more children is not eligible except for special-needs children and relatives’ children (as in CARA rules).

Authority: CARA (Central Adoption Resource Authority) is a statutory body under the Ministry of Women and Child Development; the Child Care Institutions, Specialised Adoption Agencies and District Child Protection Units are the machinery; the Adoption Regulations 2022 (framed under Section 68) govern process; after the 2021 amendment, District Magistrates pass adoption orders.

Section 2(2): adoption means the process through which the adopted child is permanently separated from biological parents and becomes the lawful child of the adoptive parents with all rights, privileges and responsibilities.

Inter-country adoption: India ratified the 1993 Hague Convention on Inter-country Adoption in 2003; CARA is the Central Authority.

Shabnam Hashmi v Union of India (2014): three-judge bench held that the right to adopt under the JJ Act is available to all, irrespective of religion, and that personal law cannot override this enabling law; the Court refused to declare adoption as a fundamental right. Muslims can therefore adopt under the JJ Act; personal law continues to apply to those who prefer it. In Shazia Aman Khan v State of Orissa (2024) the Supreme Court distinguished custody and guardianship from adoption in a Muslim family context (verify). Madras High Court (2025) held that the JJ Act prevails over Muslim personal law for registration of adoption of an intra-family child (reported; verify).

Muslim law: no adoption (Quran 33:4–5: adopted child is not a real son); the nearest concepts are kafala (guardianship and sponsorship), custody and acknowledgement.

Section 4: minor is a person under 18; ‘guardian’ includes natural guardian, testamentary guardian, guardian appointed by court and guardian by court of wards; ‘natural guardian’ is a guardian in Section 6.

Section 6 (natural guardians): (a) boy or unmarried girl: the father, and after him the mother, but the custody of a minor who has not completed five years shall ordinarily be with the mother; (b) illegitimate boy or unmarried girl: the mother and after her the father; (c) a married girl: the husband. No person is entitled to act as natural guardian if he has ceased to be a Hindu or has renounced the world.

Gita Hariharan v Reserve Bank of India (1999): ‘after’ in Section 6(a) means ‘in the absence of’ for the father (due to his disinterest or incapacity); the mother may act during the father’s lifetime; avoided striking down the section by constitutional reading. Jijabai Vithalrao Gajre v Pathankhan (1970) is the earlier view of the father’s ‘absence’. ABC v State (NCT of Delhi) (2015): an unwed mother can be the sole guardian of her child without disclosing the father’s name.

Section 7: natural guardianship of adopted son: adoptive father, then adoptive mother.

Section 8: powers. The natural guardian may do all acts necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor’s estate, but cannot bind the minor by a personal covenant. Without prior permission of the court he cannot (a) mortgage, charge, or transfer by sale, gift, exchange or otherwise any immovable property of the minor; (b) lease for more than five years or for a term extending beyond a year after the minor attains majority. Alienation in breach is voidable at the minor’s instance (Section 8(3)); permission is given only for necessity or evident advantage (Section 8(4)).

Section 9: testamentary guardian (the father or mother can appoint by will); Section 10: minor cannot be guardian; Section 11: de facto guardian cannot deal with the minor’s property; Section 12: no guardian for undivided interest in joint family property managed by karta; Section 13: welfare of the minor is the paramount consideration; Section 5: overriding effect.

Custody cases: Nil Ratan Kundu v Abhijit Kundu (2008) and Gaurav Nagpal v Sumedha Nagpal (2009): welfare is paramount, not legal right; Roxann Sharma v Arun Sharma (2015): custody of a child under five with the mother; Vandana Shiva v Jayanta Bandhopadhyaya (2005). Orders under Section 26 HMA, Section 38 SMA and Section 41–43 Divorce Act apply in matrimonial proceedings.

Section 4(1): minor under 18 (Indian Majority Act 1875: 21 if a guardian is appointed by the court or the court of wards takes charge).

Section 7: District Court may appoint or declare a guardian; Section 9: jurisdiction of the court where the minor ordinarily resides.

Section 17: the court must consider the welfare of the minor, with reference to age, sex and religion; character and capacity of the proposed guardian; nearness of kin; wishes of the deceased parents; and existing or previous relations with the minor or the property.

Section 19: no guardian can be appointed for a minor whose father is alive and not unfit; Section 25: return of ward to guardian custody; Section 29: a guardian appointed by court cannot mortgage, charge, sell, gift or lease for more than five years without court permission; Section 30: alienation in breach is voidable; Section 47: appeals.

Muslim law: acknowledgement of paternity is a declaration by a man that a child is his legitimate child. Conditions: (a) the parentage of the child must be unknown (not known to be the child of another man); (b) the age difference must be such that the acknowledger could be the father (traditionally, he must be at least 12½ years older than the acknowledged); (c) the child must not be known as the offspring of zina or of another man; (d) the child must not be the child of a woman whom the acknowledger could not have lawfully married at the time of conception; (e) if the acknowledged is an adult, he or she must confirm; (f) the acknowledger must be of sound mind and majority. Effect: legitimacy, inheritance rights, and a presumption that cannot be revoked once made (Ashrufood Dowlah v Hyder Hossein Khan, PC 1867; Habibur Rahman Chowdhury v Altaf Ali Chowdhury, PC 1921: acknowledgement of legitimacy does not apply where illegitimacy is apparent).

Presumption in other laws: Section 112 Evidence Act (now Section 116 BSA 2023): birth during marriage or within 280 days after its dissolution, mother remaining unmarried, is conclusive proof of legitimacy unless non-access is proved (Goutam Kundu v State of West Bengal, 1993: DNA test cannot be ordered routinely; Nandlal Wasudeo Badwaik v Lata Nandlal Badwaik, 2014: scientific evidence prevails over presumption, in the facts; Aparna Ajinkya Firodia v Ajinkya Arun Firodia, 2023: DNA only in exceptional cases).

Hindu law: the HAMA adoption route replaces earlier ‘dattaka’ and ‘kritrima’ forms; there is no separate concept of acknowledgement, but Section 16 HMA and presumption of marriage secure legitimacy.