This provision is intended to prevent sexual abuse. This Act is not free from discrimination and bias against women. It clearly precludes a married Hindu woman from adopting a child during her husband’s lifetime even with his consent.
She cannot be a joint petitioner with her husband but can only be a consenting party where her husband wishes to adopt a child. Under the Guardianship and Wards Act, 1890, people belonging to Muslims, Christians, Parsis or Jews communities who wish to adopt can only become guardians of the child during his minority. The child thus becomes a ward and not an adopted child. Once the child attains 21 years of age, he no longer remains a ward.
The Act specifically provides that in deciding the question of guardianship, courts must take into consideration the ‘welfare of the child’. Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 also explains adoption as 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 rights, privileges and responsibilities that are attached to the relationship. This law is in the nature of a secular legislation where any person can adopt a child who is an orphan, surrendered or abandoned irrespective of his/her religious status. Thus, children who cannot be cared for by their biological parents may be adopted having recourse to the provisions of the above stated legislations and be provided for with a permanent substitute family.