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Law Of Adoption And Guardianship

Basis and Objects of Adoption

Ancient Hindu lawyers recognized twelve kinds of sons.

They were broadly classified into three groups:

  1. Atmaja son (sons born of oneself).
  2. Paraja sons (sons born of others and)
  3. Adopted sons.

The basis of the Hindu Law Adoption is spiritual and not secular.
The ancient sage Atri has state the two fold objects of adoption; as:
  1. Offering spiritual benefit (Pinda or oblation of food and udaka or labation of water) to the ancestors.
  2. Perpetuation of the lineage.
These objects are obviously spiritual in character. In fact the adopted son becomes a coparcener with the adoptive father, and acquire share in coparcenary property. On the death of the adoptive father he inherits his properties. But these property rights are only secondary, and they are the secular objects of adoption. Dharma Sutra also expresses the spiritual theory of adoption.

Amarendraman Singh v. Sannothan Singh Case

A Hindu son died unmarried, living his widowed mother Indumati. By a family custom females were excluded from succession to immovable property. Hence, on his death, his estimate was inherited not by his mother but by a collateral Banamali. Thereafter, Indumati adopted Amarendra as her son Banamali questioned the validity of adoption. The Privy Council upheld the adoption on the basis of the spiritual theory of adoption.

The spiritual theory of adoption was explained by the Privy Council. For every hindu a son is essential to offer spiritual benefit to him on his death. The spiritual benefit is essential for attainment of Salvation, recording to hindu faith. Only for fulfillment of this spiritual purpose, continuation of male line is indispensable in a hindu Family. Whenever a male dies without a son, he casts a duty upon his widow to provide for the continuance of male line. Naturally, the widow adopts a son and allows the male line to continue. When a son dies unmarried, the widowed mother adopts a son.

Condition Of A Valid Adoption

Valid and void Adoption: Hindu Law of adoption has been codified in the Hindu Adoptions and Maintenance Act of 1956. After the Act, an adoption has to be made according to the provisions contained in the Act. Any adoption made in contravention of the said provisions shall be void. But adoption made before 1956 according to prior Hindu Law, are valid under Sec. 5 of the Act. An adoption is either valid or void, and there is no voidable adoption. It cannot be also partly valid arid partly void.

A void adoption brings about no legal change in the status of the adopted person. The adopted does not acquire any right in the adoptive family. Likewise his rights in the natural family are not lost. After adoption, suppose the natural father alienates family property.

If the adoption is valid the alienation cannot be impeached by the son. If the adoption is void, the adopted son can attack the alienation as not binding on him. Similarly, after adoption the adoptive father may gift away some property to the adopted when the adoption becomes void, the gift fails, if the intention of the adoptive father was to benefit the adopted solely because of adoption. But the gift is valid, if the adoptive father intends to benefit the adopted under all circumstances as a person designate.

Sec. 6 of the Act states the conditions for a valid adoption:

  1. The person adopting must have capacity and right to adopt.
  2. The person giving in adoption must have capacity to adopt.
  3. The adopted must have capacity to be adopted.
  4. Other conditions in the Act must be fulfilled.

Capacity of the Person Adopting Formalities: Before the Act ceremonies for adoption were not uniform Physical Act of giving and receiving was essential in all ceremonies. In the case of Brahmins alone performance of the ceremony of Datta Homam was insisted. After the Act under Sec. 11 the child to be adopted must be actually given and taken in adoption by the parent and guardians.

This corporeal delivery can be affected even by third person under the authority of the parents. In the Corporeal delivery there must be an intention to transfer the child from the natural family to the adoptive family. However; the performance of Datta Homam is not essential to the validity of an adoption. But there is nothing to prevent the performance of datta homam, and in some communities data homam is still performed.

Illustration: A sent his son through his agent to house of B in another town for the purpose of education. B had already an intention to adopt A's son. Now B presumed that A was willing to give the child in adoption to him. After sometime, A brought back the son, and B raised the question of adoption. Court decided that there was no valid adoption. Even through the child was physically delivered by A is agent to B, there was no intention to give in adoption.

Capacity of the person adopting: Under the prior Hindu law a sonless male could adopt a son. A man was sonless if he had no son, son's or son's son's son. An illegitimate son was not recognized as a son at all and so the putative father could adopt a son. Even bachelors and widowers could make adoption of son. There was no possibility for the adoption of a daughter. However custom recognized the adoption of daughters in certain communities. For e.g., in the case of dancing girls of South India. Under prior law females could not adopt to themselves. However, a wife was allowed to adopt a son to her husband, as the agent of her husband.

The person adopting should full two qualifications:

  1. He should not be minor
  2. He should not be a lunatic.

Under Sec. 7 of the Act a Hindu male has capacity to adopt if he is of sound mind and a major (18 years). If he has a wife living he can adopt only with her consent. If he has more than one wife living, the consent of all the wives is necessary. But the wife's consent is not necessary if:
  1. She has finally and completely renounced the world.
  2. Or she has renounced Hindu Religion.
  3. Or she has been declared by court to be of unsound, mind.

Female:

Under prior Hindu Law a female could not adopt to herself. However, a wife could adopt to her husband as his agent or surviving half. When the husband was alive his permission was necessary. If the husband was a lunatic, the wife could not adopt, since consent was not possible.

When the husband was an ascetic his consent was presumed and the wife could adopt depended upon the school of Law to which she belonged. Under Sec. 8 of the Act a female Hindu has how the capacity to adopt, if she is of sound mind and a major (18 years). Thus even unmarried woman can adopt to themselves.

A married woman can adopt:

  1. If she obtains a divorce;
  2. If her husband is dead;
  3. If her husband completely and finally renounces the world;
  4. If her husband becomes a convert to non-Hindu Religion;
  5. If her husband is declared a lunatic by a competent court.
Females can adopt either a son or a daughter.

Capacity of persons giving in adoption: Under prior law the parents alone could give the boy in adoption. The father enjoyed the prior right and he could give in adoption without the consent of the mother. The mother could give in adoption only when the husband was dead or became an ascetic.

However, the widowed mother was not entitled to give in adoption her son by the first husband after her marriage. Now under Sec.9 of the Act the father or the mother or the guardian of a child has capacity to give the child in adoption. The father enjoys prior right to give in adoption, but he should secure the consent of the mother. Unless:
  1. The mother completely and finally renounces the world.
  2. The mother becomes a convert to non-Hindu faith.
  3. The mother is declared by a court of competent jurisdiction to be a of unsound mind.

The mother can give the child, in adoption if:

  1. The father is dead.
  2. The father completely and finally renounces the world.
  3. The father becomes a convert to non-Hindu religion.
  4. The father is declared by a court of competent jurisdiction to be of unsound mind.

In the following circumstances the guardian, the child can give the child in adoption, with the previous permission of the Court:

  1. When both the father and mother are dead
  2. When they completely and finally renounce the world.
  3. When they are declared by a Court of competent jurisdiction to be of unsound mind.

Before granting permission to a guardian the Court shall be satisfied that:

  1. The adoption is for the welfare of the child
  2. The guardian has not received or agreed to receive any reward or consideration for the adoption.

Capacity of the Adopted: The prior Hindu Law permitted adoption of son alone. There were many qualifications prescribed by the Texts regarding his capacity to be adopted which are:
  1. The boy must be of the same caste.
  2. He should be a near relation and living close by.
  3. He should be affectionate towards the adaptor.

Generally, a boy could be adopted at any time before Upanayana among the regenerate casts and before marriage among Sudhras. Adoption of only son or the eldest son was prohibited. Besides, an illegitimate son, already adopted son, congenitally deaf and dumb son and an Orphan could not be adopted.

Under sec. 10 of the Act there is provision for adoption of a son as well as a daughter. There is no restriction as to caste. The child to be adopted should be a Hindu, unmarried and below 15 years of age. However, there are customary adoptions of married boys and boys about 15 years. When a Hindu adopts a child of the opposite sets there must be a difference of at least 21 years between the adaptor and the adopted.

Effect of valid Adoption: Sec. 12 and 13 of the Act deal with the Legal effects of valid adoption. When there is valid adoption, the child is deemed to die in the natural family, and to be reborn in the adoptive family. His rights in the natural family are destroyed, and he acquires in the adoptive family. An adopted child becomes the child of the adoptive family for all purposes from the date of adoption. In fact, he is deemed to be natural son.

Marriage: To adopted child's relationship with the natural family continues for purpose of marriage. A child cannot marry anybody whom he or she could not have married in the natural family.

Vesting in Natural Family: Any property vested in the adopted child prior to adoption is not divested by adoption for e.g., A, B and C are brothers in a hindu joint family. All of them inherit some properties from their maternal grandmother. They hold these properties in common; with rights so equal share. ‘A' is adopted. Now, the one third share vested in ‘A' is not divested by adoption. He takes his one third share to the adoptive family, but subject to obligations attached to the property.

Divesting in Adoptive Family: When the adopted son acquires a right by birth to the ancestral property in the hands of the adoptive father. But in the self-acquired property of the adoptive father the adopted son does not acquire any right. The adoptive father con freely disposes of his self-acquired property.

Rights of adopted son as against aurasa son: A natural son may be born to the adoptive father, after adoption of a son, under prior law, based on the text of Vasishta the adopted son was entitled only to a limited share. Vasishta's text was interpreted differently in different schools of law. In Madras the adopted son was entitled 1/5 of the share of a natural son. But among the Sudras adopted son and Aurasa son took equally. After the Act the adopted son ranks equally with the aurasa son among all castes and takes an equal share.

Right by theory of relation back: According to the Theory of Relation back an adopted son is deemed to be alive at the time of death of the adoptive father. Under this, a valid adoption divested the property vested in the adopting widow or in the heirs of the deceased adoptive father. After the Act, this theory is not applied an adoption cannot divest any property vested before adoption.

For example (1) A Hindu dies leaving behind some properties and his widow. The properties are vested in the widow as heir to husband. She is absolute owner of the properties under Hindu Succession Act 1956. In 1957 the widow adopts a son. The adopted son does not acquire any right to the properties in the hands of adoptive mother. If adoption is made before 1956, the adopted son can divest the property vested in the widow.

Window's Power to Adopt Under prior law only son could be adopted. But a maiden was not qualified to adopt, a son to herself. Similarly, a married lady also could not adopt a son to her husband during her husband's life time. However, after her husband's death a widow could adopt a son to her husband. The widow's power to adopt depended on the school to which she belonged. This power was derived from the text of Vasishta. Now let a woman give or accept a son, unless with the assent of her Lord.

Collector of Madura v. Muthuramalinga Sethupathy (PC)
The Raja of Ramnad died leaving behind his widow and some properties. The widow adopted a son with the consent of her mother-in-law. The adoption was attacked invalid. It was argued that the widow adopted without, the assent of her husband. Regarding the nature of the assent of husband, the text of Vasishta was relied upon.

The different view expressed by various schools of law:
Mithila School: Assent of Lord means husband's consent to his wife for adoption of son, during his life time. Hence a widow can adopt with such consent.

Dravida School: Assent of Lord can be secured during his life time and it can be exercised by the widow, after his death. Or consent can be obtained to adopting after his death also from his kindred.

Bengal School: Assent of Lord is consent secured during his life time. It can be exercised by the widow, after his death.

Thus in Madras where the Dravida School is applied, a widow could adopt a son to her husband, either with her husband's consent, or with the consent of his kindred. In this basis made by the widow with the consent of mother-in-law was valid.

Extension of a widow's Power to Adopt Under Sastriac Hindu Law there was no limit of time for the widow to make an adoption of a son to her deceased husband. The Privy Council on grounds of public police imposed a limit upon the widow's powers to adopt. The limit is not a durational limit measured in years. It is a contingent limit, a limit measured in contingencies. The famous Bhoobun Mayee's case lays down thus limit imposed upon a widow's power to adopt.

Bhoobun Mayee v. Ram Kishore (Privy Council)
A had a son B through his wife C. A gave authority to C to adopt a son, in case he died in future without male issue. Firstly, A died leaving B and C. B married C1, but soon he also died leaving his widow C1. The properties acquired by B from his father A were not in the hands of C1. After sometime C adopted a son to her deceased husband A. Thereafter, C1 also adopted a son to her deceased husband B.

The adopted son of the mother-in-law sued for possession of the family property:

The adopted son of the daughter in law C1 also claimed the property. In order to solve the conflict between the two adopted sons the validity of the adoptions had to be decided. The Court decided C's adoption was invalid, since at time of the adoption her power to adopt was extinct. The following are the rule of law declared in this case.
  1. The primary object of adoption is to provide for spiritual benefit (Pilla and Udaka) to the ancestors.
  2. When a male Hindu dies he casts a duty upon his son to offer spiritual benefit to him and his ancestor.
  3. When his son dies unmarried or leaving son or widow, his widowed mother can adopt a son to her husband and provide for spiritual benefit.
  4. Similarly, when a male dies sonless he casts the duty to offer spiritual benefit, upon his widow. The widow adopts a son to her husband and fulfils this duty.
  5. Her son B leave his widow C1. C1 can adopt a son to her husband and provide for spiritual benefit. When she adopts C's potential power to adopt becomes extinct and her adoption is invalid.

After the Act: Under Section 8 of the Act a widow enjoys the absolute power to adopt a son or daughter to herself.
The only conditions are that at the time of adoption:
  1. She should not have a son, son's son or son's son's son, if she adopts a son and
  2. She should not have a daughter or son's daughter, if she adopts a daughter.

Doctrine Of Relation Back

Under the Doctrine of Relation Back, the adopted son was treated as posthumous son. He was deemed to be in existence at the time of death, of the adoptive father. In result the male line was deemed to continue without any break. In result the adopted son acquires his rights in the adoptive family from the death of the adoptive father, and not merely from the date of adoption. When a male Hindu dies sonless his properties became vested either in his widow or in his surviving coparceners.

When the widow adopted, a son to her husband the adoption divested properties already vested to the widow or surviving coparcener. In other words, the adopted son and right to recover the adoptive father's property from the widow or the surviving coparcener. This right of the adopted son was recognized under the Doctrine of Relation Back.

One Limitation: A limitation was imposed upon the doctrine. Sometime for a legal necessity binding on the estate of the adoptive father, the estate might be alienate. Such alienation was binding the adopted son, and he could not recover the property from the alliance.

Krishnamurthi v. Dhruwaraja

A was the father and B was his son. Both were the coparceners in a Hindu Joint Family. B died leaving his widow's X. A's surviving coparcener A acquired B's interest by survivorship. Later, A also died and the property was inherited by collateral C.

The property passed through many hands and ultimately, Krishnamurthy became the absolute owner by inheritance. Then the widow X adopted a son Dhruwaraja to her deceased husband B. Dhruwaraja sued to recover the property from Krishnamurthy. On the basis of Doctrine of relation Back, the adopted son claimed that he was legally is existence when B died. He argued that he could divest the estate of his adoptive father, already vested in A and his heirs. The Court recognized the claim of the adopted son on the basis of Doctrine of Relation Back.

Law Of Guardianship

The Law relating to minority and guardianship among Hindus is now codified by the Hindu Minority and Guardianship Act of 1956. The provisions and Act shall apply in addition to the Guardians and wards Act of 1890.
  1. Minor and Guardian: The Act defines a minor as one who has not completed the age of 18 years. When a Hindu minor has guardian appointed by Court or where he is a ward of the Court of Wards, the minority continues up to 21 years. Guardian is a person having the care of:
    1. the person of the minor; or
    2. His property.
    3. both his person and property.

      The Act recognizes four kinds of guardians:
      1. Natural Guardian
      2. Testamentary Guardian
      3. Guardian appointed by Court
      4. Guardian under Guardians and Wards Act.
         
  2. Delegation of Custody and Guardianship: The Guardianship is the nature of a sacred trust. Therefore he cannot during the life time substitute another to be a guardian in his place. But he can entrust the custody of his minors to another, but this authority can be revoked by him. Thus delegation of custody is recognized by law, but delegation of guardianship is not recognized.

Anne Besant v. Narayanath

The father entrusted the custody of his two minor boys to Mrs. Besant. He agreed that she alone should be guardian of their person during their minority. The boys were taken over and they had a course of tuition in England. Therefore the father demanded restoration of the custody of the boys to him.

Mrs. Besant refused to restore the boys to his custody, and so she was sued. The Court ordered restoration and made certain observations. Custody can be delegated and the delegation can be revoked. But delegation cannot be revoked, if revocation is not in the welfare of the children.

Natural Guardian

Under Sec. 6, of the Act, the following are the natural Guardians.

  1. In the case of a boy or unmarried girl the father and after him the mother.
  2. In the case of illegitimate boy or unmarried girl, the mother and after her the father.
  3. In the case of a married girl, the husband. The custody of a minor below 5 years shall be with the mother. Though mother has preferential right to custody, father alone continues as guardian. For just reasons the father can move the Court to return the custody of a minor below 5 years of him.

Qualifications for a Natural Guardian

  1. He should not be a minor.
  2. He should not convert himself to another religion.
  3. He should not renounce the worldly life and become an ascetic.

Powers of a Natural Guardian

1. Powers of alienation of minor's property:
The Natural guardian could transfer minor's property for legal necessity of the minor for the benefit of the minor's estate. His powers of alienation of minor's property are-explained by the Privy council in the following case. Hanumanth prasad v. Mussat Babuyee: A was a minor son. His widowed mother acted as natural guardian and mortgaged the minor's property to B. On attaining majority A used to set aside the mortgage transaction. The Privy Council decided that the mortgage was binding upon A, and declared the following rules of Law:
  1. The Natural guardian has limited power to create burden on the minor's property, or to transfer the same.
  2. This power can be exercised by the guardian only for the legal necessity of the minor or for the benefit or necessity of the minor's estate.
  3. The interest of the transferees from the guardian are protected if they act bonafides. They should enquire and satisfy themselves that the guardian is acting for the welfare of the minor or for benefit of the minor's estate. They need not look to the actual application of the money ‘received by the money received by the guardian under the transfer.
Under the Guardians and wards Act of 1890 and Sec. 8 of the Guardianship Act of 1950: The natural guardian should obtain prior permission from the Court for the following transfers affecting minor's property.
  1. The mortgage, or charge, or transfer by sale, gift or exchange or Otherwise any part of the immovable property of the minor.
  2. To lease any part of minor's property for a term exceeding five years, or for term ‘extending more than one year beyond the date of minor's majority. The Court grants prior permission for the above transfers by the guardian, only in the case of necessity or for an evident benefit to the minor. If the natural guardian transfers minor's property without the prior permission from Court, the transfer is voidable, at the instance of the minor or any person claiming under him.
Other Powers of the Natural Guardian: Both under the prior law, and under Sec. 8 of the Act, the Natural Guardian has rights to do all acts necessary and proper for welfare of the minor, or for the benefit of the minor estate.
  1. Contract for purchase by Guardian: Before the Specific Relief Act contract for purchase by guardian was not binding on the minor. Likewise the minor was not entitled to enforce such agreements. This ruling was based on the doctrine of mutuality. Sarwarajan v. Fakhruddin Mohamed (P.C.) A minor's guardian entered into a contract for purchase of some immovable property for the minor.

    The contract was in fact for the benefit of the minor. Attaining majority, the minor sued for Specific Performance of this contract. The Court refused specific Performance and observed as follows: For Specific Performance of a contract there should be mutuality: The doctrine of mutuality means that both the parties to the contract should be able to mutually enforce the contract against each other.

    This mutuality should exist at the time of formation of the contract. In this case the Vendor cannot enforce the contract against the minor. Therefore the minor alone cannot enjoy the right to Specific Performance.

  2. Contract for sale by the Guardian Before the Specific Relief Act of 1963 and also after the Act. Contract for sale the guardian was binding on the minor. Likewise he was entitled to enforce the contract against the vendee. Subramanian v. Subba Rao (P.C.) This Privy Council reversed the doctrine of mutuality. The mother of a minor son entered into a contract for sale of minor's estate. The intended purchaser was put in possession of the estate, in pursuance of the contract. The minor, on attaining majority, sued for recovery of possession on the ground that the guardian's contract for sale was not binding upon him. The Privy Council decided that a contract for not recover possession. Now under the Act of 1890 and the Act of 1956 Court's permission is necessary for this contract.

    The Specific Relief Act of 1963. This Act has done away with the doctrine of mutuality. Sec. 20 of the Act states that one party to contract is entitled to Specific Performance, even when the contract is not specifically enforceable by the other party. The only question is whether the guardian has power to enter into a particular contract. When he has the power, his contract can be specifically enforced both by and against the minor.

  3. Purely Personal Covenants Under earlier law and under Sec.8 of the Act of 1956, a natural guardian can in no case bind the minor by a personal covenant, However if the personal covenant is made by the guardian for the legal necessity of the minor, or for the benefit of the minor's estate, the minor's estate may be made liable. Vagheela v. Sheik Maiudin (P.C.) certain debts were charged upon the estate of the minor. The guardian mother of the minor transferred some of the Villages in the estate, in discharge of debts. She covenanted that:
    1. the villages were rent free; and
    2. she and the minor would be liable to pay the revenue, in case of assessment by the Government.
Later the villages were assessed to revenue. The purchaser used for recovering the revenue from the minor. The Privy Council decreed that the minor was not liable, since his guardian had no power to blind the minor by purely personal covenants.

Testamentary Guardians

Under prior law, the father alone had the power to appoint a guardian for his minor child by Will. The testamentary guardian was appointed for the custody of the minor or for his property. The mother of the minor had no power to appoint the testamentary guardian.

In respect of the undivided interest of the minor in the joint family property, testamentary guardian could not be appointed: Under Sec.9 of the Act of 1956 the father can appoint the testamentary guardian for the person or property of his minor child (son or daughter). If the mother survives the father, this appointment made by the father has no effect.

The mother can act as the guardian of the minor. She can also appoint a testamentary guardian for the minor. If she dies without appointing a testamentary guardian, the testamentary guardian appointed by the father can function. Even during the father's life time, the mother can appoint a testamentary guardian for the minor.
  1. by conversion to a non-Hindu faith, or
  2. by renunciation of wordly life, if the father is disqualified to act as guardian.
In the case of illegitimate children only the mother can appoint the testamentary guardian. Such testamentary guardian can function, even if the putative father survives the mother. In all cases no testamentary guardian can be appointed in respect of the undivided interest of the minor in the joint family property. In the case of an unmarried girl, the testamentary guardian can function only till her marriage.


Powers: The testamentary guardian enjoys all the powers of the natural guardian. His powers can in no case exceed those of the natural guardian. However his powers can be curtailed by the testament itself. Besides, the powers are subject to Sec.8 of the Act. Ramanathan v. PalaniappaA executed a will appointing B as the executor of the will, and authorizing his widow to adopt a son.

Till the adopted son became a major the executor was to manage the property of the family viz. a money lending business. In course of business B appointed an agent to conduct the business. The agent borrowed money from a Bank jointly with C, under a promissory note. The bank recovered the whole amount from C; and so C sued the adopted son for contribution. The adopted son argued that his testamentary guardian B had no powers to bind him by the personal covenant created by the agent. The Court held the adopted son liable to contribute on grounds;
  1. That the testamentary guardian has all the powers of a natural guardian.
  2. That the transaction was for the benefit of the minor, since the amount borrowed was invested in the money tending business.

De -Facto Guardians

The term de facto guardian is a misnomer for the de facto manager of the minor's person and property. When a minor has no legal guardian, usually some near relation voluntarily looks after his person and property. He may also apply under the Guardians and Wards Act of 1890 for appointment by the Court as a Guardian. Without doing so if he possesses and Manages the minor's property, he is the de facto manager. The de facto guardian enjoyed powers of dealing with minor's property. But his acts could bind the minor only when they were for the minor's benefit:
  1. A de facto guardian could incur liability on behalf of the minor. The liability could bind the minor, if it was for his benefit, or for the benefit of his estate.
  2. An acknowledgment of debt made by a de facto guardian could not bind the minor or his estate. He could not acknowledge even debts contracted by lawful guardians.
  3. The de facto guardian could not bind the minor or his estate by his contracts with third parties. Besides he had no powers to bind the minor or his estate by personal covenants.

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