Guardianship and Adoption Laws

Various social and legal implications of guardianship and adoption exist, which intend to care for helpless minors and make decisions about their well-being. A guardian is a person who makes an important decision about the children’s life, rights, and responsibilities. Guardianship is a legal authority that empowers a person to bring up and look after a child. In adoption, the rights and obligations of the biological parent no longer exist, and the adopting parents substitute their place. The law gives the legal rights to the adoptive parent as the actual parents and the guardian. Adoption will be allowed only when the biological parent gives up his or her parental rights. There are laws and jurisdictions regarding the guardianship and adoption procedure to make the process smooth, legal, and sustainable, considering the benefits to the children and parents.

Concept of Guardianship:

Guardianship implies the legal authority and corresponding duty of a person to care for another person who is below the age of 18 years and is incompetent to manage affairs on his own. Any person under the guardianship of another is commonly known as a ward. In legal terms, a guardian is the custodian of a child but not the child’s biological parent. 

This relationship does not extinguish a biological parent’s legal relationship to the child, such as obligations for support, care, and inheritance rules. The guardian is given the authority to legally take care of the child and make certain decisions regarding the ward’s well-being, education, and social status. A person is assigned guardianship by the natural parents to look after their child under different circumstances or may be appointed by the court when the child has no legal guardian to take care of his well-being.

Concept of Adoption:

The adoption process is more substantial and permanent in that it transfers biological parents’ rights to another parent who takes full responsibility for the child, including well-being, financial support, and inheritance rights. Adoption is the formal process through which a child is separated from the biological parents to become the lawful child of adoptive parents. The biological parents have no further obligations to the child after the adoption process is over. Adoption is a mode of affiliation of the child of an individual to another person who is not his natural parent. The adoption process has a historical significance as childless couples want to adopt a child, especially a boy, who can move forward with the family being a legal heir. The Hindu religion and culture emphasize the importance of a son performing certain duties, so adoption was carried out even if the parent has a girl child. Adoption is prohibited under Muslim or Christian law but is practiced under Hindu law due to the various social and cultural beliefs and faith.

Child Adoption

Legal Provisions of Guardianship laws:

A guardian is supposed to perform all the duties, rights, and responsibilities of a parent and takes important decisions about the child’s well-being and future life. A status of a guardian may be natural or by relationship, or by appointment of the court. Two acts govern the guardianship process under family laws which are as follows:

• The Guardianship and Wards Act (GWA) of 1890 
• The Hindu Minority Guardianship Act of 1956

The GWA is the only law that permits non-Hindu individuals to become guardians of children from their communities. However, GWA appoints individuals as legal guardians until the ward turns 21, after which the ward is free to get individual identity. In cases of a marital dispute, when there is a need to decide on child custody and guardianship, it is typically restricted to just one parent, and mothers tend to get preference. 

Adoption Laws:

The main purpose of formulating the law of adoption is to bring opportunity for childless couples or a person to have a legal heir. The Hindu law allows the adoption of a child under the Hindu Adoption and Maintenance act, 1956 (HAMA). The provisions under this law are as follows:

• Under this act, a Hindu parent or guardian can give a child to another Hindu parent for adoption. 
• This act does not allow the adoption of a child in the care of a specialized adoption agency or childcare institution. 
• This act does not permit inter-country adoption. 
• This act initially allowed only a male to adopt a child, but later, it was amended to provide the right for a woman to adopt.
• The fundamental principles that govern the adoption process consider the child’s interests.
• The law also gives preference to Indian citizens for taking the child into adoption.
• The Juvenile Justice (Care and Protection of Children) Act, 2015 states that an orphaned, abandoned, or surrendered child declared legally free for adoption by the Child Welfare Committee (CWC) can only be adopted. 

The Jurisdictions on Guardianship And Adoption:

A guardian is supposed to perform all the duties, rights, and responsibilities of a parent and make important decisions about the child’s well-being and future life. A guardian’s status may be natural, by relationship, or by court appointment. Two acts govern the guardianship process under family law. These are the Guardianship and Wards Act of 1890 and the Hindu Minority Guardianship Act of 1956. In cases of a marital dispute, when there is a need to decide on child custody and guardianship, it is typically restricted to just one parent, and mothers tend to get preference.
The main purpose of formulating the law of adoption is to bring opportunity for childless couples or a person to have a legal heir. The Hindu law allows adopting a child under the Hindu Adoption and Maintenance act, 1956. This act initially allowed only a male to adopt a child but was later amended to provide the right for a woman to adopt. The law states that any Indian or non-Indian who is fit and able can adopt a child. The fundamental principles that govern the adoption process consider the child’s interests. The law also gives preference to Indian citizens for taking the child into adoption.

Important data About Guardianship And Adoption:

• Child Adoption and Resource Authority (CARA) is a statutory body of the Ministry of Women & Child Development, responsible for monitoring and regulating in-country and inter-country adoptions of Indian children.
• There were 27,939 prospective parents registered with the CARA as of December 2021.

Challenges to Child Adoption:

• The number of adoptable children is quite high as compared to the prospective parents which results in many delays in the adoption process. 
• There is an increase in the return of adopted children as faced by CARA, the main reason being the problem of adjustment by disabled and older children with the adoptive families. 
• There have been no provisions for LGBTI persons to become parents or adopt a child. 
• Illegal adoptions are becoming common among certain communities.

Conclusion:

The guardianship and adoption happen under various circumstances. The earlier concept of adoption mainly focused on bringing up a prospective heir without a son. The idea changed with time, and now, a major reason for adoption is to rescue abandoned, homeless, and orphan children and provide them with home and parental care to grow up in a healthy and safe environment. Guardianship is mostly related to a child’s official or social identity. Still, adoption is a more holistic approach to providing a child with a new and promising life while giving relief and joy to childless persons.