Children are thought to be a source of joy, and the country's future is
dependent on them. Meanwhile, children born in India are pampered, cared for,
and provided with all of the necessities for their overall growth, while over
60,000 children are abandoned in India each year. It is a tragic state of
affairs when some of these children become victims of human trafficking and
sexual abuse, while others are brought to an adoption agency and given hope for
a better life while waiting to be adopted. A parent's greatest joy comes from
having a child. Adoption seems to be the most efficient means of obtaining this
Adoption is a wonderful option for single parents, childless adults,
and homeless children alike. It allows individuals who are not physically
related to form a parent-child bond. The Hindu Adoption and Maintenance Act 1956
is the only personal law in India that deals with adoption. Some personal laws,
such as Muslim, Parsi, and Christian, do not allow for adoption. This research
paper examines other legal guidelines relating to adoption, as well as the gaps
and flaws in those provisions. It also discusses the role of the judiciary in
defining the adoption scenario in India.
Adoption is a legal procedure in which a child is placed with a married couple
or a single woman who agrees to raise and care for the child. Adoption is a
legal way for people who are not related by blood to establish a parent-child
relationship. This two-way method has aided in the conception of a child for
childless couples. Adoption is the formal process of putting an infant with a
parent or parents other than the biological parents for the rest of their lives.
The parental duties and rights of the parents are severed when a child is
adopted, and those responsibilities and rights are transferred to the adoptive
parents. It is a globally recognised institution. Adoption is stated in almost
all religions and mythologies in some way. In today's world, the idea of
adoption has evolved from providing a child to the orphaned to providing a home
to the homeless.
Adoption In Hindu Law
Only members of the Hindu community had access to adoption as a legal term.
Also, where personal laws permit such adoption for any part of the polity, there
is an exception. A large portion of the population could only serve as
children's legal guardians. There have been many progressive improvements as a
result of the new concept's adoption. , such as female Hindu adoption, adoption
eligibility for girls, and so on. Because of our country's multicultural,
multilingual, and multi-religious sentiments, recognising all complexities and
uniformly implementing an effective adoption policy has been a difficult job.
With the rise of humanity, adoption will be used to ensure the right to family
for orphaned, neglected, and surrendered children; the process of adoption will
have an effect on secular as well as religious conditions. The main goal of
adoption was to ensure that one's burial rights were carried out and that one's
lineage was preserved. Adoption has recently become the safest way for a child
who has been separated from his or her maternal family to re-establish a family.
Various international human rights treaties specifically state the constructive
obligation to provide care and assistance to children.
Adoption rates in India
have always been low, but they have decreased in recent years: According to the
government's Central Adoption Resource Authority (CARA) adoption statistics,
there were 5,693 in-country adoptions in 2010, but just 3,276 in-country
adoptions in 2017-2018. These are appalling statistics for a country with such a
large population. According to the Indian Society of Assisted Reproduction,
there are actually just around 20000 parents waiting to adopt, compared to the
27.5 million couples actively seeking to conceive but suffering infertility.
Adoption Under Old Hindu Law
According to Old Law, a man could adopt a boy without the consent of his wife.
But, a woman could not adopt during life time of her husband or after his death
except under authority given to her by the husband or with the consent of his
sapindas. The adopted son should be of the same caste. An illegitimate boy or
congenitally deaf and dumb boy could not be adopted. Only parents could give a
boy in adoption. A daughter could not be adopted. There was no age restriction
between the adopter and adoptee.
Adoption Under Modern Hindu Law
The Hindu Adoptions and Maintenance Act, made adoption a secular institution.
The Act lays down various provisions relating to Adoption (and Maintenance). The
Act removed the restrictions under Old Law. Under the Act, girl also can be
taken in adoption.
Requisites Of A Valid Adoption
- The person adoption (taking in adoption) must have capacity to do so and
shall also have a right to take in adoption
- The person giving in adoption must have the capacity (and right) to do
- The person adopted is capable of being taken in adoption
- The adoption is made in compliance with the conditions in Chapter-II of
the Act (The Hindu Adoptions and Maintenance Act,1956)
Effects/Consequences Of Adoption (Section 12)
- Under Section 7 and 8 of the Hindu adoption and maintenance act deal
with capacity of male and female Hindu respectively to take In adoption
- Under Section 9, the father, the mother or guardian can give a child in
adoption; subject to certain restrictions
- Section 10 provides for the capacity of a child or person to be adopted
After adoption, the adopted child becomes the aurasa son of his adoptive parents
and gets disqualified to perform Sradha, Pinda Karma of his natural parents.
Section 12 of the Hindu adoptions and maintenance act, 1956 deals with the
effects/consequences of the adoption
- An Adopted child is deemed to be the natural born child of his/her
adoptive father/adoptive mother.
- All the ties of the adopted child with the original family stand
extinguished from the date of adoption (i.e. Kinship disappears in the
original family and is born in the adaptive family). This rule is subject to
the following exceptions:
- The Child cannot marry any person, whom he/she could not have married
prior to the adoption.
- The property vested in the child prior to the adoption shall continue to
vest, subject to the obligations.
- The adopted child shall not divest any person in the adoptive family of
any estate, which is vested in him/her before the adoption. (i.e. the
adoption of child does not affect the rights and the members of the adoptive
Under Section 13 of the Hindu Adoptions and Maintenance Act, 1956 makes
provisions for the Ante-Adoption Agreement.
Ante-Adoption agreement means “An agreement before the adoption. It is entered
into between the natural parent (person giving the child in adoption)
” and the
adoptive parent (person taking the child in adoption) before the adoption in
regard to the rights of the adoptive child in the property of the adoptive
parent. It protects the interests of the child (to be given in adoption) in
regard to the property of the adoptive parent.
Registration of Adoption:
Section 16 of the act, provides for the registration
of adoption with Registrar of documents. If the adoption is registered the
registered instrument duly signed by both the parties serves as a piece of
evidence, but not conclusive proof of the evidence.
The Doctrine Of Factum Valet
The maxim “Quod fieri non debris factum valet or the Doctrine of Factum Valet”
is a Latin maxim, which means ‘what ought not be done is valid, when done’
After adoption, the child becomes the aurasa (naturally born son of the adoptive
parents) and also gets disqualified to perform ‘Sradha Karma, Pinda Karma or
Kanyadan of natural parents. In case, there is no other person competent to
perform the ceremonies, shastras permit the adopted son to perform the Sradha
karma, Pinda Karma and Kanyadan.
This is known as ‘Factum Valet’. This doctrine
was recognized both by the Mitakshara and Dayabhaga Schools. When there is a
rule, which governs an act (not to be done) and the act is done, it cannot be
rendered in invalid. This doctrine does not have universal application since
every prohibited act, when done cannot be ratified. The doctrine applies where
there is no fraud or force. Under the Hindu Law, this doctrine gets recognition
mainly in the Law of Marriage and Law of Adoption.
Effects Of Adoption Before The Act,1956:
Before the Act, the doctrine of
relation back was in operation.
The Doctrine Of Relation Back
Adoption confers rights on the child w.e.f. the date of adoption. This position
was the same in the old law also. But under old law, when the adoption was made
by a window, the adoption would come into force from the date of the of the
death of her (widow’s) husband.
This doctrine gives retrospective effect to
adoption by a window under the old law. In other words, all the rights pf the
adoptee (person taking the son in adoption) related back from the date of death
of the adoptive father (window’s husband). The reason was the woman could not
adopt in her own without the consent/authority of her husband or his sapindas.
Therefore, the adoption is deemed to have taken place on the date of her
The Doctrine of relation back has been abolished by Section 12 of the Hindu
Adoptions and Maintenance Act,1956 and hence it is no more a law at present
Sawan Ram vs Kalawati
AIR 1967 SC 1761
The Supreme Court held that the son adopted by the widow was deemed to be the
son of her deceased husband and the adoption would be effective from the date of
the death of her husband (i.e. in 1948). Therefore, the adopted son was entitled
to inherit the property of the deceased husband.
Lacunae In Adoption Laws
Time Consuming Process
The process of adoption is very time taking and it needs to be addressed .In the
researchers humble opinion, to streamline the process, we need to ensure that
there is awareness about adoption procedures and there are sufficient adoption
centers .The adoption process can take an extremely long time, which can cause
severe strain and stress to some families. Average waiting times can vary from a
few months to years in both national and international adoptions. Much comes
into adoption, and the state, as well as adoption agencies and experts, often
set very strict criteria in distinct countries. Though long wait times may be
necessary for some adoptions, many families wish to find ways to reduce these
long waits in any way that they can
Very Strict Rules And Regulations
Domestic adoptions conform to strict rules and very strict scrutiny is given to
the eligibility of adoptive families. This makes the adoption process very
troublesome and most the time the family fails to adopt a child through such
rules which leads to a discouragement among the prospective adopters and
According to the Child Adoption Resource Information and Guidance System (CARINGS),
for every 10 adoptive parents in India, only one child is available. There are
not enough kids accessible for adoption because the institutionalized care ratio
of abandoned children to kids is lopsided. This may result in fewer kids being
accessible for adoption, and adoptive parents may not be inclined to adopt a
minority group (any) child.
Gender Bias In Adoption
Although it was stated after the enactment of the Act that gender discrimination
was eliminated, it still occurs in the real sense. Unless her husband dies or
suffers from any disability or renounces the world or so, a married woman cannot
adopt, not even with the approval of the husband. On the other side, with the
wife’s approval, a husband may adopt.
In this era of equality, it is time for the law to recognize the same and offer
men and females equal privileges with respect to adoption. There is no reason to
veto the husband to deny his wife’s maternal instincts satisfaction.
Judicial Perspective On Adoption
Darshana Gupta Vs. None and Ors.
AIR 2015 Raj 105
Held, When the child to be adopted is orphaned, abandoned or surrendered child
or a child in need of care and protection as defined in Juvenile Justice Act,
the bar imposed by Section 11 (i) and (ii) of Hindu Adoption and Maintenance Act
does not bar the Hindu having biological child from adopting the child of same
gender. In changed social scenario, Acts were liable to be construed
harmoniously to ensure rehabilitation and social reintegration of orphaned,
abandoned and surrendered children - Therefore, adoption of child girl to
Appellant was held maintainable
Karam Singh & Ors Vs Jagsir Singh & Ors
., 2015 (3) RCR (Civil) 45 (P&H)
Adoption – Hindu Adoptions and Maintenance Act, 1956, Section 16 –Presumption of
validity – An adoption deed comes into effect the moment it is signed or thumb
marked by the natural parent and the adopting parent – The only consequence of
non-registration or a defective registration is that the presumption of truth,
raised under Section 16 of the Act shall not arise – Adoption deed shall have to
be proved like any other ordinary fact or document.
Adoption is a noble cause that brings joy to orphaned or neglected children.
This gives us a chance to show off the human side of humanity. It's a beneficial
programme in which the infant is handled as though he or she were a normal born
child, with all of the affection, care, and attention that comes with it. At the
same time, it satisfies the desire of parents for children. Their mischief and
laughter reverberating off the walls of a building. Although a few tweaks may be
made to make all adoption laws a bit more consistent.
The present legislation cannot be considered ineffective because it produced
results. However, it is past time to address the gaps that have arisen as a
result of changing times and increasing instances of discrepancy by enacting a
uniform law to ensure that everybody has equal status and privileges. Since the
personal laws of all religions have become stagnant and cannot change at the
same pace as society, there has been a need for a uniform civil code.
The nation's children are its most valuable resource. Their upbringing and
isolation are the nation's responsibilities. Children's services should be a big
part of domestic human resource development strategies to help kids grow up to
be good people who are physically fit and mentally strong. With the talents and
inspiration that society needs, he is mentally alert and morally balanced. The
goal is to provide all children with equitable opportunities for development, as
this will help to achieve larger goals such as reducing inequality and
increasing social justice.
The title describes this case study in a summary, so it deals with an analytical
research on Adoption and how the law with regard to Adoption developed in India
and what is the Adoption in Indian law.
- To understand the Adoption under old and modern Hindu law
- To understand the effects of adoption.
- What is the importance of the doctrine of factum valet and the doctrine
of relation back under Hindu Law
- To Understand Lacunae in adoption laws
- What is Adoption
- What are the requisites of valid adoption?
- What are the effects of adoption?
Through this study we will understand the concept of Adoption under modern Hindu
Law, its effects and some valid requisites
The present study will be based on secondary data. This doctrinal study revolves
around Adoption in Modern Hindu Law. The collection of Data and information will
be from published papers, relevant articles, relevant cases, internet websites
etc. Also include various texts from legal and non-legal sections; the period of
proposed study will be limited to understand the concept of Adoption in Family
Law in India.