Can I adopt a child whom I brought home under guardianship (GAWA)? (Q and A)

I live in India and a child had been placed in my custody under the Guardians and Wards Act (GAWA) several years ago. Now since the secular adoption is included in the Juvenile and Justice Act (JJ Act), Can I adopt a child now under this act?

Before I say anything, let me clarify the terminology:

Guardianship: Is a process where an individual is recognized as a legal guardian by the relevant court for the welfare of a minor. In this scenario it is the court that will have the eventual authority on the child until he/ she attains adulthood.

Adoption: Mean a process through which the adopted child permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship.

Until the JJ Act came into effect in the year 2000 and amended in 2006, adoptions in India were done under the act called “Hindu Adoption and Maintainance Act” or (HAMA) which only allowed the Hindus, Jains, Budhists and Sikhs. Christians, Muslims, Parsis and Jews were asked to take the child under guardianship (not equal to adoption) using GAWA.

Implication of this difference is that those who take the custody of the child under GAWA may not get the birth certificate and that created lot of hardship for the families. Now since there’s a secular adoption provision for all citizens (to a person) under the JJ Act, dilemma is if they should adopt child under this act.

If I may draw parallels between inter-country adoptions (to give children in adoption to foreign families) from India where the child is initially given under GAWA but parents adopt the child under the domicile laws of country of residence, to guardianship in India where the child is given under GAWA and now parents adopting the same child under the domicile law of India i.e., JJ Act. I don’t find much difference and my common sense tells me that Indians can adopt a child whom they have taken under GAWA.

Lastly in a case law of Andrew Mendez & Others V State of Kerala where the judgment clearly recognizes the importance of secular adoption legislation (JJ Act) for all citizens of India. In short, answer to your question is YES, you can and you should in the best interest of your child.

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