CHANGES IN ADOPTION AS PER JJ ACT

Introduction
Adoption is a profound act of love, offering a new chance at life and family to children who have faced
abandonment, neglect or other challenging circumstances. In India, adoption is governed by the Juvenile
Justice (Care and Protection of Children) Act, 2000.
The Significance of Adoption under Juvenile Justice Act
Adoption is a remarkable institution with far-reaching societal impacts. It not only transforms the lives
of the adopted children but also shapes the future of families and communities. The importance of
adoption under the Juvenile Justice Act can be understood through various lenses:
Child Welfare: At the heart of the JJ Act’s adoption provisions lies the welfare of vulnerable children.
It provides a legal framework for ensuring that children without parental care receive the love, support
and nurturing environment they need for healthy development.
Right to Family: Adoption safeguards every child’s fundamental right to grow up in a loving family,
providing them with a sense of belonging, stability and security.
Empowering Prospective Adoptive Parents: The JJ Act opens the door for individuals, irrespective
of marital status, to fulfil their dreams of parenthood. It encourages childless couples, single parents
and even parents with existing biological children to adopt, expanding the pool of prospective adoptive
parents.
Promoting Social Inclusion: Adoption promotes social inclusion and breaks down societal stigmas
associated with adoption. It underscores the idea that love, care and support are essential components
of parenthood, regardless of biological connections.
Adoption under Juvenile Justice Act – Section 56 of the JJ Act
Adoption serves as the means to ensure the right to a family for orphaned, abandoned and surrendered
children, in accordance with the provisions of this Act, the rules established under it and adoption
regulations set forth by the Authority.
Adoption of a child from a relative by another relative, regardless of their religion, can be pursued
following the provisions of this Act and the adoption regulations prescribed by the Authority.
The provisions of this Act do not apply to the adoption of children governed by the Hindu Adoption and
Maintenance Act, 1956.
All international adoptions must strictly adhere to the provisions of this Act and the adoption regulations
established by the Authority.
Any individual who transfers a child’s care and custody to another person in a foreign country or
participates in such an arrangement without a valid court order will be subject to penalties as outlined
in Section 80.
Changes in JJ Act
Central Adoption Resource Authority (CARA) is a statutory body of Ministry of Women & Child
Development, Government of India. It has been vested with the power of fostering adoption of Indian
children and to regulate in-country and inter-country adoptions. In its analysis, CARA found that, as of
July 2018, as many as 629 adoption cases were pending before the Courts in India.
To remedy the situation the Indian Parliament passed the Juvenile Justice (Care and Protection)
Amendment Bill, 2021 (hereafter 'the Amendment Bill, 2021'). A major change therein includes the
shift of power in adoption matters from 'Civil Courts' to the 'District Magistrate' (DM) and 'Additional
District Magistrates'. This was done to pace the process of finalizing the adoption orders by the courts.
A District Magistrate works in the executive branch of the three organs of the government and exercises
diverse and a plethora of roles and responsibilities as per the Code of Criminal Procedure, 1973.
Adoption is a sensitive matter and DMs do not have any expertise in it, therefore, further addition of
adoption matters in their daily functions would be an injustice especially when the Bill does not approve
of judicial scrutiny of the adoptions. In this regard, the current article critically examines the said
amendment to ascertain if it would help in overcoming the cited problem or not.
DISSECTING DIFFERENT DIMENSIONS
Firstly, it is crucial to understand the objective behind inclusion of 'adoption' procedure. Justice
Bhagwati, CJ, in Lakshmi Kanth Pandey v. Union of India propounded that: because of the tender age
and immaturity and thereby incapacity to look after themselves, children always needs special
protection. Every child needs affection, care and security in order to grow and become responsible
citizens of the country. The most congenial environment in this regard would be that of a family. And
where the biological guardians are not there, the next best alternative is to find adoptive parents for the
child. And it is therefore this responsibility has been granted to the people in governance to do their best
to make the children appropriate citizens of tomorrow. In the light of the same, the Juvenile Justice
(Care and Protection Act, 2015 (hereafter 'the Act') provides for secular adoption to all person
irrespective of their religious affiliations.
Secondly, it is essential to examine the nature of the adoption orders:
A) as per Section 63 of the Act, upon passing of adoption order, the child becomes the child of the
adoptive parents and the adoptive parents become the guardians of the child as if the child was born to
the adoptive parents. In other words, a permanent legal relationship is created between the child and
the adoptive parents;
B) Section 61 requires satisfaction of certain questions like whether the adoption is for the welfare of
the child or not by giving due consideration to his willingness and age and understanding of the child;
C) adoption affects the life of the child and thus inherently involves and concerns the fundamental right
to life and liberty of the minor As observed, an adoption matter entails a great deal of sensitivity where
one mistake could expose the child to profiteering and trafficking. Therefore, it requires a
trained judicial mind that would arduously examine the facts gathered and reports generated by
Adoption Agency, under Section 58 of the Act, to identify whether the adoption is in the best interest of
the child or not.
Thirdly, in its object the Bill states that as a signatory to the following Conventions, India is required to
have: a) a person qualified by ethical standard and training or experience and who meets the requirement
of integrity, professional competence, experience and accountability to the State when dealing with
matters of inter-country adoption as per Article 11 and 22 of the Hague Convention on Protection of
Children and Co-operation in respect of Inter-country Adoption (1993); b) professional education and
refresher courses for competence when dealing with juvenile issues as per Article 22 of the United
Nations Standard Millennium Rules for the Administration of Juvenile Justice, 1985 (the Beijing
Rules). However, no such qualifications have been laid down in the current Amendment Bill. Moreover,
District Magistrates do not hold such qualifications as stated above. Therefore, the present amendment
also fails in meeting the International standards.
Categories of the child covered
The government has taken various steps for the welfare of the child, established the child welfare
committee for the purpose of taken care all the below categories of the child.
• Abandoned Child
• Surrendered Child
• Orphan Child
• Child of relatives
• Child or Children from earlier marriage
Surrendered child is a child who is relinquished by the biological parents or guardian to the committee
on account of physical and emotional stability issues. The Abandoned child is a child which is deserted
by their biological parents and the Orphan child is the child who is without biological parents, adoptive
parents and legal guardian.
Requirement for Adoptive Parents
An individual/couple may legally adopt the child after adopting the due process of Law for the time
being in force. That even the Female/Male after the separation legally adopt the child and become the
lawful adoptive parents. That the government from time to time framing the Model Guideline,2015 for
the purpose of welfare of the adopted child and the adoptive parents.
That Prospective adoptive parents (PAP) need to follow the guidelines at the time of process of
Adoption. According to the JJ Act, the adoptive parents must fulfil the below conditions before starting
the process of adoption.

• That the Adoptive parent(s) or prospective adoptive parent(s) must be physically, mentally and
emotionally stable also the parent(s) should be financially capable and also not suffering from
any life threatening disease.
• That if the Adoptive parent(s) or prospective adoptive parent(s) is a couple either separated or
not, the consent of the other spouse is necessary/mandatory.
• That if Adoptive parent(s) or prospective adoptive parent(s) is a couple and want to adopt in
such case the couple must have the stable marital relationship of 2 years.
• That if Adoptive parent(s) or prospective adoptive parent(s) is Female and want to adopt in its
individual capacity can adopt the child of any gender either male or female.
• That if Adoptive parent(s) or prospective adoptive parent(s) is Male and want to adopt in its
individual capacity can adopt the child of only male gender.
• That there must be gap of 25 year(s) between adopted child and Adoptive parent(s) or
prospective adoptive parent(s).
• That the Adoptive parent(s) or prospective adoptive parent(s) follow the criteria for composite
age and Individual age.
Procedure of adoption
Indian prospective adoptive parents residing in India, irrespective of their religion, who wish to adopt
an orphaned, abandoned or surrendered child, may submit their application to a Specialised Adoption
Agency, following the procedures specified in the adoption regulations established by the Authority.
The Specialised Adoption Agency will conduct a home study report for the prospective adoptive
parents. Upon determining their eligibility, the agency will refer a child who has been legally declared
available for adoption to them. This referral will include the child’s study report and medical
assessment, following the procedures outlined in the adoption regulations framed by the Authority.
Upon receiving the child’s acceptance from the prospective adoptive parents, along with the child’s
study report and medical report signed by the parents, the Specialised Adoption Agency will place the
child in pre-adoption foster care. Subsequently, the agency will file an application in court to obtain the
adoption order, following the procedures laid out in the adoption regulations set forth by the Authority.
Upon receiving a certified copy of the court order, the Specialised Adoption Agency will promptly
provide the same to the prospective adoptive parents.
The progress and well-being of the child within the adoptive family will be monitored and assessed in
accordance with the guidelines specified in the adoption regulations framed by the Authority.

Jurisdiction for adoption matters

Previously, the Juvenile Justice Board was responsible for permitting child adoption instead of the court.
However, the Juvenile Justice (Amendment) Act, 2006 intentionally replaced the term “Board” with
“Court.” Therefore, in cases of adoption under Juvenile Justice Act, petitions should be filed under
Section 41 of the Act before a Court.
It is essential to understand which specific court is meant by the Act to handle adoption matters
concerning orphaned, abandoned and surrendered children since the Act does not define the term
“court.” In this regard, the Model Rules established by the Central Government regarding adoption
should be considered.
According to Rule 33(5) of the Central Rules under the Act, the term “Court” refers to a civil court with
jurisdiction over adoption and guardianship matters. This may include the court of the District Judge,
Family Court and City Civil Court.
However, the provision in these Rules that empowers the Family Court has faced criticism from the
judiciary. In the case of Manuel Theodore D’Souza [II (200) DMC 292], the Bombay High Court
observed that the right to adopt, being a fundamental right, must be enforceable through a civil court,
as it falls under the ambit of Section 9 of the Civil Procedure Code.
It was also stated that District Courts or High Courts typically handle disputes regarding child custody,
guardianship, etc. Applications for adoption by a guardian should be treated as miscellaneous
applications under the Guardians & Wards Act.
A similar conclusion was reached by the Kerala High Court in the case of Andrew Mendez & others
v. State of Kerala (2008), where it closely examined the term “Court” in the Juvenile Justice Act and
the jurisdiction of the Family Court as mentioned in the Central Rules. According to Section 7(1)(g) of
the Family Courts Act, the Family Court has the authority to address matters of guardianship.
However, in the case of Vinod Krishnaan v. Missionaries of Charity [1997 (2) KLT 863], the Kerala
High Court held that the Family Court cannot be authorised to deal with claims for adoption under
Section 9(4) of the Hindu Adoption & Maintenance Act. Only the District Court with jurisdiction should
handle such applications.
Effect of adoption under juvenile justice Act
A child who is the subject of an adoption order issued by the court shall legally become the child of the
adoptive parents. The adoptive parents shall assume the legal status of the parents of the child as if the
child had been born to them.
This legal transformation applies to all purposes, including matters of inheritance, starting from the date
when the adoption order becomes effective. On and from this date, all familial ties of the child in the
biological family shall be severed and replaced by those established by the adoption order within the
adoptive family.
However, any property previously owned by the adopted child before the adoption order takes effect
will continue to be owned by the adopted child, subject to any obligations associated with that property,
including the responsibility, if any, to support relatives in the biological family.

CONCLUSION
Adoption under the Juvenile Justice Act is a legal process that plays a pivotal role in ensuring the well-
being and future of orphaned, abandoned or surrendered children in India. It upholds their right to a
loving family and provides prospective adoptive parents with the opportunity to provide a nurturing
home.
While challenges and controversies exist, the Act continues to evolve to address them, emphasising the
significance of adoption in building strong families and inclusive communities. Adopting a child is not
only a legal act but also a profound expression of love, compassion and the enduring human spirit.