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Introduction
Although there is no general law of adoption, yet it is permitted
by a
statute amongst Hindus and by custom amongst a few numerically
insignificant categories of persons. Since adoption is legal
affiliation
of a child, it forms the subject matter of personal law. Muslims,
Christians and Parsis have no adoption laws and have to approach
court
under the Guardians and Wards Act, 1890. Muslims, Christians and
Parsis
can take a child under the said Act only under foster care. Once a
child
under foster care becomes major, he is free to break away all his
connections. Besides, such a child does not have legal right of
inheritance. Foreigners, who want to adopt Indian children have to
approach the court under the aforesaid Act. In case the court has
given
permission for the child to be taken out of the country, adoption
according to a foreign law, i.e., law applicable to guardian takes
place
outside the country.
Hindu Law, Muslim Law and the
Guardians and Wards Act, 1890 are three
distinct legal systems which are prevalent. A guardian may be a
natural
guardian, testamentary guardian or a guardian appointed by the
court. In
deciding the question of guardianship, two distinct things have to
be
taken into account - person of the minor and his property. Often
the
same person is not entrusted with both.
The Hindu Minority and Guardianship Act, 1956 (32 of 1956) has
codified
laws of Hindus relating to minority and guardianship. As in the
case of
uncodified law, it has upheld the superior right of father. It
lays down
that a child is a minor till the age of 18 years. Natural guardian
for
both boys and unmarried girls is first the father and then the
mother.
Prior right of mother is recognised only for the custody of
children
below five. In case of illegitimate children, the mother has a
better
claim than the putative father. The act makes no distinction
between the
person of the minor and his property and, therefore guardianship
implies
control over both. The Act directs that in deciding the question
of
guardianship, courts must take the welfare of child as the
paramount
consideration.
Under the Muslim law, the father enjoys a dominant position. It
also
makes a distinction between guardianship and custody. For
guardianship,
which has usually reference to guardianship of property, according
to
Sunnis, the father is preferred and in his absence his executor.
If no
executor has been appointed by the father, the guardianship passes
on to
the paternal grandfather. Among Shias, the difference is that the
father
is regarded as the sole guardian but after his death, it is the
right of
the grandfather to take over responsibility and not that of the
executor. Both schools, however, agree that father while alive is
the
sole guardian. Mother is not recognised as a natural guardian even
after
the death of the father.
As regards rights of a natural guardian, there is no doubt that
father's right extends both to property and person. Even when
mother has
the custody of minor child, father's general right of supervision
and
control remains. Father can, however, appoint mother as a
testamentary
guardian. Thus, though mother may not be recognised as natural
guardian,
there is no objection to her being appointed under the father's
will.
Muslim law recognises that mother's right to custody of minor
children
(Hizanat) is an absolute right. Even the father cannot deprive her
of
it. Misconduct is the only condition which can deprive the mother
of
this right. As regards the age at which the right of mother to
custody
terminates, the Shia school holds that mother's right to the
Hizanat is
only during the period of rearing which ends when the child
completes
the age of two, whereas Hanafi school extends the period till the
minor
son has reached the age of seven. In case of girls, Shia laws
uphold
mother's right till the girl reaches the age of seven and Hanafi
school
till she attains puberty.
The general law relating to guardians and wards is contained in
the
Guardians and Wards Act, 1890. It clearly lays down that father's
right
is primary and no other person can be appointed unless the father
is
found unfit. This Act also provides that the court must take into
consideration the welfare of the child while appointing a guardian
under the Act.
Adoption under Hindu Law:
The Shastric Hindu Law looked at adoption more as a sacramental
than
secular act. Some judges think that the object of adoption is two
fold:
to secure one's performance of one's funeral rites and 2) to
preserve
the continuance of one's lineage[1]. Hindus believed that one who
died without having a son would go to hell called
poota and it was
only a
son who could save the father from going to Poota. This was one of
the
reasons to beget a son. Ancient Hindu Shastras recognized Dattaka
and
Kritrima as types of sons.
In the Hindu Shastras, it was said that the adopted son should be
a reflection of the natural son. This guaranteed protection and
care for
the adopted son. He was not merely adoptive parents, but all
relations
on the paternal and maternal side in the adoptive family also came
into
existence. This means he cannot marry the daughter of his adoptive
parents, whether the daughter was natural-born or adopted.
In the modern adoption laws, the main purpose is considered to be
to
provide consolation and relief to a childless person, and on the
other
hand, rescue the helpless, the unwanted, the destitute or the
orphan
child by providing it with parents. However, in the
Chandrashekhara case
[2] it was held that the validity of an adoption has to be judged
by
spiritual rather than temporal considerations and devolution of
property
is only of secondary importance.
Currently, the adoption under Hindu Law is governed by The Hindu
Adoption and Maintenance Act, 1956.
The Hindu Adoption and Maintenance Act, 1956 extends to only the
Hindus,
which are defined under Section-2 of the Act and include any
person, who
is a Hindu by religion, including a Virashaiva, a Lingayat or a
follower
of the Brahmo, Prarthana or Arya Samaj,or a Buddhist, Jaina or
Sikh by
religion, to any other person who is not a Muslim, Christian,
Parsi or
Jew by religion. It also includes any legitimate or illegitimate
child
who has been abandoned both by his father and mother or whose
parentage
is not known and who in either case is brought up as a Hindu,
Buddhist,
Jaina or Sikh.
Adoption is recognized by the Hindus and is not recognized by
Muslims,
Christian and Parsis. Adoption in the Hindus is covered by The
Hindu
Adoptions Act and after the coming of this Act all adoptions can
be made
in accordance with this Act. It came into effect from 21st
December,
1956. Prior to this Act only a male could be adopted, but the Act
makes
a provision that a female may also be adopted. This Act extends to
the
whole of India except the state of Jammu and Kashmir.
It applies to Hindus, Buddhists, Jainas and Sikhs and to any other
person who is not a Muslim, Christian, Parsi by religion.
Requirements for a valid adoption
In the Hindu law the requirements for a valid adoption. The Act
reads,
# No adoption is valid unless
# The person adopting is lawfully capable of taking in adoption
# The person giving in adoption is lawfully capable of giving in
adoption
# The person adopted is lawfully capable of being taken in
adoption
# The adoption is completed by an actual giving and taking and
The ceremony called data homan (oblation to the fire) has been
performed. However this may not be essential in all cases as to
the
validity of adoption?
Who
May Adopt?
Capacity of male
Any male Hindu, who is of sound mind and is not a minor, has the
capacity to take a son or daughter in adoption. Provided that if
he has
a wife living, he shall not adopt except with the consent of his
wife,
unless his wife has completely and finally renounced the world or
has
ceased to be a Hindu, or has been declared by a court of competent
jurisdiction to be of unsound mind. If a person has more than one
wife
living at the time of adoption the consent of all the wives is
necessary
unless the consent of one of them is unnecessary for any of the
reasons
specified in the preceding provision.
Capacity of female
Any female Hindu
a. who is of sound mind
b. who is not a minor, and
c. who is not married, or if married, whose marriage has been
dissolved
or whose husband is dead or has completely and finally renounced
the
world or has ceased to be a Hindu, or has been declared by a court
of
competent jurisdiction to be of unsound mind, has the capacity to
take a
son or daughter in adoption.
Where the woman is married it is the husband who has the right to
take
in adoption with the consent of the wife.
The person giving a child in adoption has the capacity/right to do
so:
a. No person except the father or mother or guardian of the child
shall
have the capacity to give the child in adoption.
b. The father alone if he is alive shall have the right to give in
adoption, but such right shall not be exercised except with the
consent
of the mother unless the mother has completely and finally
renounced the
world or has ceased to be a Hindu, or has been declared by a court
of
competent jurisdiction to be of unsound mind.
c. The mother may give the child in adoption if the father is dead
or
has completely and finally renounced the world or has ceased to be
a
Hindu, or has been declared by a court of competent jurisdiction
to be
of unsound mind.
d. Where both the father and mother are dead or have completely
and
finally renounced the world or have abandoned the child or have
been
declared by a court of competent jurisdiction to be of unsound
mind or
where the parentage of the child is unknown - the guardian of the
child
may give the child in adoption with the previous permission of the
court. The court while granting permission shall be satisfied that
the
adoption is for the welfare of the child and due consideration
will be
given to the wishes of the child having regard for the age and
understanding of the child .
The court shall be satisfied that no payment or reward in
consideration
of the adoption except as the court may sanction has been given or
taken.
The person can be adopted
No person can be adopted unless
a. he or she is a Hindu;
b. he or she has not already been adopted;
c. he or she has not been married, unless there is a custom or
usage
applicable to the parties which permits persons who are married
being
taken in adoption;
d. he or she has not completed the age of fifteen years unless
there is
a custom or usage applicable to the parties which permits persons
who
have completed the age of fifteen years being taken in adoption.
Other conditions for a valid adoption are fulfilled
a. if the adoption is of a son, the adoptive father or mother by
whom
the adoption is made must not have a Hindu son, son's son or son's
son's
son living at the time of adoption
b. if the adoption is of a daughter, the adoptive father or mother
by
whom the adoption is made must not have a Hindu daughter or son's
daughter living at the time of adoption;
c. if the adoption is by a male and the person to be adopted is a
male,
the adoptive father is at least twenty one years older than the
person
to be adopted;
d. if the adoption is by a female and the person to be adopted is
a
male, the adoptive mother s at least twenty one years older than
the
person to be adopted;
e. the same child may not be adopted simultaneously by two or more
parents; the child to be adopted must be actually given and taken
in
adoption with an intent to transfer the child from the family of
birth.
The
Guardian And Ward Act (GWA)
Personal law of Muslims, Christians, Parsis and Jews does not
recognise
complete adoption. As non-Hindus do not have an enabling law to
adopt a
child legally, those desirous of adopting a child can only take
the
child in 'guardianship' under the provisions of The Guardian and
Wards
Act, 1890.
This however does not provide to the child the same status as a
child
born biologically to the family. Unlike a child adopted under the
Hindu
Adoption and Maintenance Act, 1956 the child cannot become their
own,
take their name or inherit their properly by right. This Act
confers
only a guardian-ward relationship. This legal guardian-ward
relationship exists until the child completes 21 years of age.
Foreigners who seek to adopt an Indian Child, do so under this Act
to
assume legal Guardianship of the child, after giving an assurance
to the
court, that they would legally adopt the child as per the laws of
their
country, within two years after the arrival of the child in their
country.
Adoption under Muslim law:
Adoption is the transplantation of a son from the family in which
he is
born, into another family by gift made by his natural parents to
his
adopting parents. Islam does not recognise adoption. In
Mohammed
Allahabad Khan v. Mohammad Ismail it was held that there is nothing
in
the Mohammedan Law similar to adoption as recognized in the Hindu
System. Acknowledgement of paternity under Muslim Law is the
nearest
approach to adoption. The material difference between the two can
be
stated that in adoption, the adoptee is the known son of another
person,
while one of the essentials of acknowledgement is that the
acknowledgee
must not be known son of another. However an adoption can take
place
from an orphanage by obtaining permission from the court under
Guardians
and wards act.
Adoption under Parsis and Christian laws:
The personal laws of these communities also do not recognize
adoption
and here too an adoption can take place from an orphanage by
obtaining
permission from the court under Guardians and wards act. A
Christian has
no adoption law.
Since adoption is legal affiliation of a child, it forms the
subject
matter of personal law. Christians have no adoption laws and have
to
approach court under the Guardians and Wards Act, 1890. National
Commission on Women has stressed on the need for a uniform
adoption
law. Christians can take a child under the said Act only under
foster
care. Once a child under foster care becomes major, he is free to
break
away all his connections. Besides, such a child does not have
legal
right of inheritance.
The general law relating to guardians and wards is contained in
the
Guardians and Wards Act, 1890. It clearly lays down that father's
right
is primary and no other person can be appointed unless the father
is
found unfit. This Act also provides that the court must take into
consideration the welfare of the child while appointing a guardian
under
the Act.
End
notes
1. Inder Singh v. Kartar Singh (AIR 1966 Punj. 258), as cited in
Paras
Diwan, Family Law, (Allahabad Law Agency, Faridabad, Seventh
Edition
2005), p. 307
2. Chandrashekhara Mudaliar v. Kulandaiveluo Mudaliar (AIR 1963 SC
185),
as cited in B.M. Gandhi, ?Hindu Law?, (Eastern Law Book Company,
Lucknow, Second Edition 2003), p. 339
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author can be reached at: romit@legalserviceindia.com /
