P A N E L 2 N E E D F O R I N D I A N Chairman : Prof. A. R. Wadia...
P A N E L 2
N E E D F O R I N D I A N
Chairman : Prof. A. R. Wadia
A D O P T I O N O F
Secretary : Miss. A. S. Desai
C H I L D R E N B I L L
Recorder : Miss. A. Macchiwalla
Introduction to the Problem.—-The Welfare least come to the attention of one or the
of the child has come to be an accepted philo-
other of the numerous agencies in the city
sophy in the post-independence era in our such as the juvenile court, the municipal
country resulting in a tremendous accelera-
and government hospitals, the municipal
tion of programmes for the child on a cradles and the number of private institutions
governmental, semi-governmental and volun-
and foundling homes that exist in this city.
tary basis. Society has shown its concern for Where do all these children go? A majority
three categories of children if we may do so of them spend their young lives in institutions
for convenience:
for children. From our own experience we
1. T h e child in his own home.
have found that institutions are hardly able
to cope with the demands for admission they
2. T h e child who, for some reason, can-
have to face. Many of them feel that they
not continue to live in his own home.
cannot turn away an abandoned child so that
3. T h e child who is physically and we sometimes find two babies lying even in
mentally handicapped.
one cradle.
O u r panel is essentially concerned with the
T h e knowledge built up by the newly
child in category 2 who may, for some reason,
emerging science of social work has clearly
have lost his original family, largely through
indicated that group care is essential for
death, desertion or birth out of wedlock. certain types of children, but that the child
It has been established some decades ago who has no family ties belongs to a newly
that the family has a great deal of meaning
created family rather than an institution.
to the child, notably through the advances It is with this knowledge, and the fact that
of psychology and psychiatry, as well as the institutions are increasingly finding it difficult
knowledge gathered by social workers over to cope with the pressures on them, that some
many decades in work with children, more trained social workers in Bombay began to
especially, the abandoned and the homeless develop a programme for placement of
child. O n e of the most important develop-
children in adoption. As a result, we began
ments in child welfare, therefore, has been to face problems which were of a legal nature
in the area of creating a new and permanent
and which would require national support
family bond for an abandoned child through
if they were to be handled.
adoption.
From my own experiences, I may say that,
Legal Issues.—There is only one adoption
at a very conservative estimate, we have at act known as the H i n d u Adoption Act of
least 600 abandoned children per year in 1956 which only applies to Hindus, and.
Bombay, if we take into consideration the by an amendment of 1962, to those
fact that one or two children per day at children whose parentage is not known, and

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217
hence for practical purposes, of adoption,
Although the juvenile court, may seem to
may be considered as Hindu. This means be a logical place for such adoption, this is
that the children of all minority groups in not possible at the moment as the juvenile
India remain legally unprotected.
court is a part of the criminal court system
in India whereas adoption is, essentially, a
The H i n d u Adoption Act legally validates civil procedure. Secondly, adoption must be
the old religious practice of adoption making
made possible in all parts of India, if it is
the actual datta h o m a m not essential for to be a legal procedure, in which case we
a valid adoption. However, it seriously find that juvenile courts are too few to be
defeats its own purpose to legalise the act within the reach of all. Lastly, it would
because it does not provide for any procedure
also require a change in the Children's Act
under the Act. T h e result is that every of the different states and even now not all
organisation, and also persons who adopt states are covered by this Act.
privately follow w h a t they think is a legal
procedure. Most lawyers know either nothing
Although people may express fears in
or very little about adoption as they have making an essentially private adjustment
been so rarely called in on one so t h a t what
between families into a court procedure, it
goes in the name of adoption procedure may
is to be remembered t h a t the act is tempered
be invalid. For example, the Indian Stamp to have a benign influence on society and
Act provides t h a t an Adoption Decree especially to afford protection to all parties
requires Government Stamped Paper of the to a very significant and vital contract which
value of Rs. 3 3 / - and yet all we find in involves the life of a h u m a n being and
institutions t h a t claim to give children in extends to h u m a n bonds a n d affections. T h e
adoption is a signed cyclostyled form or responsibilities of the court as indicated in
a written statement by the parents. Some-
the adoption act are related to an examina-
times stamped papers of other denominations
tion and investigation of the contents of a
are used.
petition for adoption in which relevant
material is provided such as the names of
Adoption in India, either privately or the different parties in the case including the
through a social welfare agency, is left at the
natural parents, the guardians or the social
discretion of the parties concerned. No one welfare agency which retains the custody
can determine whether the child, who is the
of the child, the documents pertaining to the
helpless third party, will find this adoption relinquishment of the child, n a m e to be given
to be for his welfare. In a country that was
and the religion to be followed of the child
so enlightened as to introduce a Children's to be placed, etc. T h e Magistrate may
Act in the early decades of this century in
appoint an official of the court or any
some of the States, lags seriously behind suitable person to report to him the socio-
when it comes to the question of protecting
economic conditions and the psycho-social
the child for whom an important legal environment the adoptive parent or parents
change is being m a d e in terms of his family
will provide the child, their physical fitness,
affiliation. It is essential that legislation etc. In the case of related adoptions where
provide for court procedure to legalise a natural parent gives the child to a close
adoptions so that the welfare of the child relative, the magistrate may order such
may, at all times, be protected, whether it
investigation only at his discretion if it is
be a case of private adoption or an adoption
indicated. In the case of social welfare
by a welfare agency.
agency adoptions, this would have been

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already completed in the home study which hensive service to the natural parents, the
must be admitted as valid data to decide adoptive parents and the child.
the issue of suitability and whether the
Another issue which is connected with
adoption was taking place in the interest of
licensing is that it gives the social welfare
the child. In order that adoption proceed-
agency the custody of the child and protects
ings may not have to wait long periods for the agency when a placement is made. The
court hearings, it might be suitable to pres-
result is that agencies can have a waiting
cribe a time limit within the Act beginning period to test the suitability of the placement
from the time the petition is filed such as before going to the court to legalise the
a six month or one year period, so that it is adoption. As matters now stand, the agencies
not detrimental to the child or the legal have to legalise the adoption on the day
security of the new family.
the child enters the home thus depriving
the child of a very valuable protection.
It is also essential t h a t social welfare
It is also essential that we recommend
agencies which seek to have a programme the legislation on adoption to be a central
for placement of children in adoption, one as an adoptive couple and the child may
whether these be residential or non-residen-
not always be residents of the same state
tial, be licensed through the State Depart-
which has been so in our own experience.
ments of Social Welfare. This is essential
if the quality of adoptions such as adequate
As regards the feelings of religious groups
home study and suitable placements are to regarding such a civil legislation, it is not
be assured. An adoption programme can unusual for some sections to voice opposition
tend to be very gratifying emotionally so and it is welcome in any democracy. How-
that all kinds of organisations and groups ever, the child is recognised today as para-
may spring up who may be well meaning in mount over all considerations of communal
intent but may not have the requisite know-
sentiment and narrow prejudices which
ledge for such work. There is also the may not be wholly within the frame of
danger of a black market in babies springing
knowledge acquired by us in the twentieth
up. Licensing provides that when a third century. The right of the child to have a
party besides the natural parents and the family of his own when his family of birth
adopting parents is involved as an. inter-
has failed him, cannot be disputed, nor the
mediary, the child's rights are safeguarded right of healthy and mature adults to
and he is protected from unsuitable place-
complete an incomplete family through
ments. It is also necessary that social welfare
adoption. T h e H i n d u Adoption Act was
agency adoptions be clone by trained per-
useful as an interim measure. It lacks in
sonnel as an adoptive placement is a skilful procedure and originally framed for religious
process involving the help given to the and property reasons since that had been
parent who needs to give up her child the origin of adoption practice in India.
especially the unmarried mother, the pre-
Today we need legislation t h a t puts the
paration required of the adoptive couple to child in the forefront above all material
take in an unknown child, and the direct considerations and at the same time provides
help the child requires if he is older and has some protection to Hindus with joint family-
been residing with his parent, a relative, or property. The Muslim personal law does
in an institution. T h e social welfare agency not favour adoptions and yet Muslim
seeks to provide a continuing and compre-
adoptions are taking place frequently. In

N E E D FOR INDIAN ADOPTION OF C H I L D R E N B I L L
219
fact, it has been my personal experience that
are protected and kinship rights are not
the Ismaili Khojas are being encouraged by unduly severed.
His Holiness. T h e Aga K h a n , to adopt
2. T h e act of giving the child in
children when they are childless. Christians, adoption may involve, as previously men-
both Catholic and Protastant, also favour tioned, a social welfare agency in which case
adoption and this is true also of the Parsis. it must be licensed including the licensing of
It is essential, therefore, that we seriously temporary and adoptive homes. This
give thought to sponsoring an act which cover
requires:
all the children of our nation.
(a) A licensing legislation which em-
Essentials of Legislation on Adoption.— powers the relevant government to carry
Briefly, an adoption law should clearly on the licensing work and should be included
delineate three steps:
as a part of the adoption legislation.
1. T h e act of termination or relinquish-
(b) Provision in the Rules to provide such
licensing department facilities for inspection
ment of parental rights.
of records biennially, (visits to homes are not
2. T h e act of giving the child.
required unless malpractices by the agency
3. T h e act of receiving the child.
are suspected) when a renewal of the
agency's license may be done, and an obli-
These three steps indicate the following gation on the part of the agency to provide
prerequisites:
regular statistical data to the department.
1. (a) T h e voluntary relinquishment of
(c) Proforma in the Schedules provided
parental rights. Person or persons capable of
in the Rules for application for licenses and
accepting such relinquishments must be for the issue of the license by the depart-
clearly designated in the Rules e.g. a ment to the agency.
Magistrate of a civil, criminal or juvenile
Such a. licence alone legally empowers the
court, a Notary Public, a District Collector, agency to receive the relinquished child for
a Village Sarpanch and in the case of an adoption from his own natural parents or
Indian national residing in a foreign country, a child in whose case the rights of the
a Consul, a trade representative, and in the natural parents have been legally terminated
case of a person in the armed forces before by a competent court of law as provided in
a Commissioned Officer, etc. T h e proforma the adoption act and to give the child to
for such a relinquishment should be included an appropriate couple for adoption.
as a schedule in the Rules to provide uni-
formity for legal proceedings. Similarly, a
3. T h e third step, involves the act of
proforma should be included to be signed by receiving the child. It must be done by a
the person before whom the relinquishment court of law and should require:
was made so as to certify the surrender and
(a) A report of the social study of the
consent.
adoptive home by:
(b) T h e involuntary termination of
i. T h e social welfare agency placing the
parental rights in cases of desertion, neglect, child in adoption.
abandonment, incurable mental illness of the
ii. In case of adoptions which are
parents, should be provided for in the law private and involve a guardian who is not
and granted only to a competent court of the natural parent, a relative or a step-
law so that the child and the natural parents parent, the Magistrate may order an investi-

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gation to be m a d e and reported to him to arouse public opinion in favour of an
by an officer of the court or any other Adoption Act. As an Act which concerns
person or social welfare agency appointed children of this country and seeks to protect
by him.
the child legally, implying therefore the
iii. In cases of direct placements by the "patria protestas" of the State (that is the
natural parents, such an investigation may be State as a wider p a r e n t ) , it is to be followed
ordered only if the magistrate so desires that such an Act should be introduced in
at his own discretion.
Parliament by the Government. T h e Govern-
A Schedule in the Rules should provide ment, however, cannot assume the responsi-
an outline of the essentials of a home-study bility of piloting such a Bill unless it can
as a guide for the Magistrate and the persons be shown that the Bill has adequate public
entrusted with the task of providing such support especially from organisations most
a study to the Court.
concerned with the abandoned and homeless
(b) Application for adoption should child. It is here t h a t voluntary and professio-
include papers relinquishing parental rights nal social workers can play their roles as
or termination of parental rights of the social actionists to arouse t h e necessary
natural parents, the document certifying the public opinion in this topic. A signature
surrender or consent, and the original birth campaign is one effective method of espous-
certificate if the birth has been registered. ing public opinion, especially through the
(c) T h e person or persons adopting the efforts of voluntary a n d governmental and
child and the child, if necessary, should be semi-governmental social welfare organisa-
present in the Court.
tions, women's organisations. Organisations
(d) Some amount of privacy should be working in the interest of children and
provided if possible during the Court lawyers' groups as well as t h e interested
hearing.
citizens of India. Members of Parliament
(e) An Adoption Decree to be issued in and Rajya Sabha known to us must also be
the prescribed form provided in the Schedule explained the purpose of the Bill and their
should be the Court legalising the adoption. support espoused.
(f) T h e law should provide for the issue
of a new birth certificate u p o n order of the
In conclusion, it. is to be hoped that
Court to the Registrar of Births in the name this single piece of civil legislation cutting
of the new parents and the child's newly across communal line will bring our children
acquired name and the procedure for obtain-
under the same protection a n d provide
ing one should be spelled out in t h e Rules legal privileges to all children as guaranteed
including the determination of the child's by our Constitution. O u r children are the
age where this is not known.
most precious of our wealth. Family life,
(g) Facilities should be given to the fortunately, is still very much t h e ideal of
Court for impounding all records connected persons who contract a marriage on our
with the adoption proceedings including the country? and, therefore, where they fail to
original birth certificate and provision made have children of their own or wish to have
in the Rules t h a t any public scrutiny of such more than the number they could biologi-
records can be made only upon representa-
cally, but have a great deal they could offer
tion to the Magistrate to show cause and emotionally as well as some economic
upon securing his consent.
security, it is necessary that we preserve
Creation of Public Opinion for Adop-
these values and enrich and strengthen
tion.—Finally, 'I wish to discuss the need family life in our country.