Sofosh Harsh.docx

FAMILY LAW II INTERNAL ASSESSMENT III SOFOSH VISIT REPORT HARSHWARDHAN THAKUR 17010125054

On the 19th of March 2019, We the students of BA-LLb (hons) were taken on a field visit to SOFOSH centre for care of children in pune as part of an internal assessment. Visit Brief The differences between the CARA and HAMA (Hindu Adoption Maintenance Act) were discussed. The CARA guidelines is a recent developed to the adoption process. We were given specifics of the Adoption process. We were told how and who can adopt the Kids. Giving a good home and stable life to the kids is the main priority of the NGO. We had a very good Question and Answer session after the presentation; all the questions put forth by the students were answered in detail by both Mrs. Sharmila and Prof. Dharangutti. Also, information was given regarding Sofosh Dhadphale Centrein Pimple Gurav(located on the outskirts of Pune), a centre for differently abled children. It is a well-equipped centre having state of the art equipment’s and well-trained staff which cater the needs of the differently abled. After the end of presentation, we saw months old babies in a separate ward reserved for them. SOFOSH, being an NGO is not under the control of the Sassoon Hospital and the management there is very competent. Special focus was given on cleanliness of the premises. The Staff there is very companionate, caring and equally motivated. There were wards for different age groups and a designated play area for the kids. We were then allowed to meet the kids with whom the students played with, interacted with, the smiles of the kids and the students were a site to be seen. We held few children and felt emotionally attached with them.We were told how the whole NGO works, the staff how they took care of the children. We turned back from the NGO around 5 Pm. Introduction Adoption is creation of a parent child relationship between persons who are so related by birth. As a socio-legal process, adoption confers the same mutual rights and obligations that exist between natural parents and the child. For the orphan and abandoned children, who are deprived of growing in family settings, it confers the most important avenue for their care, protection and upbringing. The child gets identity of his/her adoptive parents in the society. There are many institutionalized children waiting for families and so also many childless parents in need of children. So adoption process brings them together. A study by the Indian Association for Promotion of Adoption and Child Welfare has reported that the number of single women who want to adopt is growing steadily in India, and this is supplemented by the want of having a family. Adoption in India for Buddhists, Jains, and Sikhs is maintained by the Hindu Adoptions and Maintenance Act, 1956. Muslims, Parsis, Christians, and Jews do not recognise complete adoption, so if a person belonging to such religion has a desire to adopt a child, he/she can take the guardianship of a child under section 8 of the Guardians and Wards Act, 1890.

The Juvenile Justice (Care and Protection of Children Act, 2000) and The CARA Guidelines and Adoption Regulations, 2017 are supplementary acts to the action for adoption. Who can adopt? Under The Hindu Adoptions And Maintenance Act, 1956 following category of people can make adoptions:

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“Any male Hindu (including Buddhist, Jain or Sikh by religion) who is of sound mind, not a minor and is eligible to adopt a son or a daughter”. But if such male has a living spouse at a time of adoption then he can adopt a child only with a consent of his wife (unless she has been declared incompetent to give her consent by the court). “Any female Hindu (including Buddhist, Jain or Sikh by religion) who is not married, or if married, whose husband is not alive or her marriage has been dissolved or her husband has been declared incompetent by the court has the capacity to take a son or daughter in adoption”.

So according to the act, if you’re a Hindu (Hindu here includes Buddhist, Sikh , and Jain) of sound mind and have attained majority, you can adopt a child, but if you have a living spouse at the time of adoption, then you need the permission of the spouse. Juvenile Justice Act According to the Juvenile Justice Act that was amended in 2006, adoption means, “The process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached with the relationship.” The most intriguing progress is by the Central Adoption Resource Agency (CARA)Guideline, 2015 issued by the Ministry of Women and Child Development with help from Ms. Maneka Gandhi. The guidelines govern the adoption of children that allow a single female to adopt a child of any gender. Also, the age limit for single parent adoption has been significantly lowered, from 30 to 25 as well. Under the Juvenile Justice Act, a single male is not lawfully prescribed to adopt a girl child. The relevant section of the act is as follows:

S.57 (1) The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him. (2) In case of a couple, the consent of both the spouses for the adoption shall be required. (3) A single or divorced person can also adopt, subject to fulfilment of the criteria and in accordance with the provisions of adoption regulations framed by the Authority. (4) A single male is not eligible to adopt a girl child. (5) Any other criteria that may be specified in the adoption regulations framed by the Authority. This is criticized as clause 4 is not arguing in favour of gender neutrality which is the need of the hour, but keeping in mind safety and relevance to certain problems that are very major concerns given the current status of the protection of rights of the girl child. Steps for adoption in India The steps needed to adopt a child in India are as follows: 1. Parents wishing to adopt have to register online or can reach District Child Protection Officer (DCPO) to register the prospective parents online. The application form is also available at the website of CARA. 2. The adoption agency then creates a Home Study report, describing the various factors and compliances of the family within 30 days of the registration of prospective parents. 3. The home study report is posted on the database by the concerned agency. 4. The parents are then allowed to choose their prospective child based on their preferences and choices. 5. They are shown photographs of the child their study reports and the child’s medical examination reports, of up to 6 children. 6. The adoptive parents have the option of reserving one child within a period of 48 hours for the possible adoption while rest of the children would be released for other prospective parents.

7. The adoption agency will then fix the meeting of the prospective adoptive parents to access whether they are suitable parents for the child or not. The parents should also be allowed to have a meeting with the child. 8. This entire process of matching should not take more than 15 days. 9. While accepting the child the prospective adoptive parents should sign the Child Study Report in presence of a social worker as a witness. 10. In case the parent or the child is not compatible, the process is followed to start the matching procedure again.

Comparision between CARA and HAMA HAMA

CARA

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Only applicable to hindus.

Secular

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Only children upto the age of 15 can be Children upto the age of 18 can be adopted adopted

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There is a prerequisition of a finalized deed An adoption order by court will finalize the for adoption under HAMA adoption

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Suitability of the adoptive parents, the Such issues do not arise here due to the JJ act sourcing of the child, its welfare, and post adoption follow ups cannot be assured under HAMA

5

Intercountry adoptions are not possible under Intercountry adoptions are allowed under s.54(6) HAMA since they are not covered under the of the JJ Act Hague convention

Suggestions for improvements in CARA CARA Guidelines and with latest amendment of 2017 did prove as a ray of hope for many parents looking for adoption of children. But the enthusiasm for becoming parents is also starkly

contradicted by India’s dismal adoption rates. The statutory body that was incorporated to streamline the adoption process has proved to be otherwise.

It is pertinent to note that it took at least three decades and several incidents that were arbitrary in nature to lay down guidelines for adoption. In guise of Lakshmi Kant Pandey[21] judgment, the Hon’ble Supreme Court laid down guidelines for inter-country adoptions and few years after that, the JJ Act was enacted to finally codify a secular (emphasis added) statute for adoptions. In the researchers opinion, we as a nation are still divided and struggling with religious beliefs. So much so that a process as natural and giving as birth of children and then adoption is being dragged into the umbrella of religious politics. Adoption is a noble cause, which brings happiness to kids, who were abandoned, or orphaned. This gives a chance for the humane side of civilization to shine through. It’s a beneficial program where the child is treated as the natural born child and given all the love, care and attention. In case of adoption, the conspicuously different laws for Hindus and Non Hindus creates an emotional problem. The non-Hindu parents, who may want to adopt a child and treat him/her as their own are not legally allowed to call themselves the parents or claim the child as their own. Hence, there has been a cry for a uniform civil code with respect to adoption.

A uniform civil code in adoption laws will not violate fundamental right to religion. It should be remembered that directive principles of States policy mandate the state to bring uniformity in laws.

The delay in the process of adoption is another shortcoming of the guidelines under CARA and need to be addressed. In the researchers humble opinion, to streamline the process, we need to ensure that there is awareness about adoption procedures and there are sufficient adoption centers. Currently, there are more PAPs waiting to adopt legally available OAS children than what is required.In recent times, adoption has been the best means to restore family life to a child deprived of his or her biological family, but it is not the panacea for multiple problems that cause children to be orphaned or abandoned. We also need to understand the problem of over – population. Suggestions under HAMA

There are several very obvious limitations to the HAMA which I feel are quite redundant in the present scenario and are to a great degree responsible for very problematic themes of institutionalized sexism in its discrimination based on the gender of the adoptive parent (inapplicable in case of PAP being a couple). Even so, the limitations I shall be discussing here are the following, which happen to be recognizable at first glance1. HAMA is not child oriented but parent oriented. Which isn’t the best adoptive policy to take in a country with over 30 million children still waiting for adoption. 2. It is a religion specific Act, this isn’t as much a criticism of the HAMA as much as it is a criticism of the unnecessary confusion created by the legislature with regard to adoption laws in the country, needless to say, it would be a far better, more convenient and effective system if the laws were completely secular and uniform. 3. It does not allow adoption of two children of the same sex by one adoptive couple. Again, in light of the systems being overburdened by the sheer overwhelming numbers of the orphaned in our country, this is not a very pragmatic approach to take. 4. It does not allow for adoption of a child of the same sex as the biological child. I have similar criticisms for this as I did for the previous point. 5. The adoptive mother is only a consenting party and not a joint petitioner. This too could be solved with a bit of uniformity in the acts and some degree of pragmatism. Conclusion Adopting a child is a very noble cause, and I believe, the barriers of religion, caste, etc., shouldn’t overshadow a noble deed like this. A couple who wants to raise a child, but because of a biological deformity cannot do so, or a single parent who wants to adopt a baby, is denied adoption, just because he is not married is not a good enough excuse for the same, hence I believe the right to adoption should be included in the Fundamental Rights of the Constitution of the Country