File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Hindu Adoption And Maintenance Act

Parenting is a joyous journey of nurturing a young one with love and affection. Traditionally in India, adoptions were intra­ familial with the objective of fulfilling religious and familial duties. Conceiving often becomes an issue due to today’s changed lifestyles. Mostly, couples wait for years together before contemplating medical treatments or adoption.

The couple is expecting their first child and very excited. Unfortunately, after many cycles of IVF and failure of ectopic pregnancy they gave up and by this time many years have lapsed and they decided to adopt a child to fulfill their dream to become parents. An adopting a child helps couples to complete their family. The main advantage of adoption is that a childless person can make somebody else’s child as his own. Thus adoption means transplantation of the child from the family of his birth to the adoptive family.

Object Of Adoption

Spiritual benefit: The object of adoption are two­fold. The first object is religious. Namely, to secure spiritual benefit to the adoptor and his ancestors, by having a son to offer funeral cakes and libations of water.

Progeny: The second object of adoption is secular, namely, to secure an heir and perpetuate the name of the adoptor.

The Hindu Adoptions And Maintenance Act, 1956 came into effect from 21 December 1956. The law of adoptions has been simplified after the commencement of the Hindu Adoptions and Maintenance Act, 1956. This Act applies to Hindus, Buddhists, Jain and Sikhs and to any other person who is not a Muslim, Christian, Parsi or Jew by religion. An adoption effected contrary to the provisions of this Act will be void and it will not create any right in the adopted child.

Requirements Of Valid Adoption (Section 6)


The requisites of valid adoption are four in numbers. For making the adoption valid:
  1. The person adopting has the capacity and also the right to take in adoption
  2. The person giving in adoption has capacity to do so.
  3. The person adopted is capable of being taken in adoption and
  4. the adoption is made in compliance with the other conditions


Who Can Adopt:

The sections 7 and 8 bring about important changes in the Hindu law of adoption, and specify the persons who may lawfully take a son or daughter in adoption.

Capacity of Hindu Male to Adopt: Under S.7, any male Hindu of sound mind, and who is not a minor, can take a son or a daughter in adoption. If he has a wife who is alive, he cannot adopt without her consent, unless the wife.

Renunciation of world: has completely and finally renounced the world; or

Apostasy: has ceased to be a Hindu; or

Unsound mind: has been declared to be of unsound mind by a Court of competent jurisdiction.

Polygamy vis­a­vis consent of wives: If such a person has more than one wife living at the time of adoption (as polygamy was not prohibited by Hindu Law prior to 1955), the consent of all the wives is necessary, unless the consent of any one of them is dispensed with for any of the three reasons referred to above.

Nature of consent: It may be noted that the consent of the wife need not be express consent, i.e.it can also be spelt out from the facts and circumstances of the case. Thus, if the wife has taken a prominent part in the adoption ceremonies. Such an inference can validly be made.

Capacity of Hindu female to adopt: Under S.8 of the Act (as amended by the Personal Laws (Amendment) Act,2010), any female Hindu who is of sound mind and is not a minor, has the capacity to take a son or a daughter in adoption. However, if she has a husband who is alive, she cannot adopt without the consent of her husband, unless the husband.

Renunciation of world: has completely and finally renounced the world; or

Apostasy: has ceased to be a Hindu; or

Unsound mind: has been declared to be of unsound mind by a Court of competent jurisdiction.

Person Who Can Give The Child ¬ Giving In Adoption

Three categories of persons: Section 9 of the Act (as amended by the Personal Laws (Amendment) Act, 2010) deals with persons who can lawfully give a son or daughter in adoption. Only three categories of persons, vix., the father, the mother and the guardian are given this right. Further, it is also clarified that the terms “father” and “mother” do not include the adoptive father and the adoptive mother.

Equal right of father and mother: Under the amended section, both father and the mother have an equal right to give a son or daughter in adoption. Even so, either of them cannot exercise this right except with the consent of the other spouse, unless such other spouse:
  1. has completely and finally renounced the world; or
  2. has ceased to be a Hindu; or
  3. has been declared to be of unsound mind by a Court of competent jurisdiction.

Power of Guardian:

The guardian means a person having the care of the minor's person, or of both his person and property, and includes. The guardian of the child has also been given the power to give a child in adoption, with the previous permission of the Court, in cases where:
both the father and mother:
  1. are dead; or
  2. have completely and finally renounced the world; or
  3. have abandoned the child; or
  4. have been declared to be of unsound mind by a
Court of competent jurisdiction; or the parentage of the child is not known.

It may be noted that a child can be given in adoption to any person, including the guardian himself.
  1. A guardian appointed by the will of child's father or mother, and
  2. A guardian appointed or declared by a Court

The Person Who Is Adopted Should Be Capable Of Being Taken In Adoption

Section 10 provides that no person shall be capable of being taken in adoption, unless the following four conditions are satisfied, viz.
  • Hindu: he or she is a Hindu
  • No previous adoption: he or she has not already been adopted;
  • Unmarried: he or she is not married unless there is a custom or usage applicable to the parties, which permits married persons being taken in adoption; and
  • Under fifteen years of age: 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 over fifteen years being taken in adoption.

Conditions For A Valid Adoption:

As per section 11 in every adoption, the following conditions must be complied with;
  1. 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 (whether by legitimate blood relationship or by adoption) living at the time of adoption;
  2. 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 (whether by legitimate blood relationship or by adoption) living at the time of adoption;
    1. if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty­one years older than the person to be adopted;
    2. if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty­one years older than the person to be adopted;
    3.  the same child may not be adopted simultaneously by two or more persons
the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption;

Provided that the performance of datta homam shall not be essential to the validity of an adoption.

This section lays down some vital rules relating to the law of adoption. The rules and conditions stated in the section are absolute and non­compliance with any of them will render an adoption invalid.

Clause (i) Adoption of a son can only be by a person who has no son. The very basis of adoption being substitution of a secondary son in place of an aurasa or a real son for the objects mentioned above, the rule was fundamental that only a person who had no son, grandson or great­grandson could validly take a son in adoption

The Act now conferred right to adopt on a female evidently clause (i) apply to both adoptive father and the adoptive mother by whom the adoption is made must not have Hindu son, grandson or great­ grandson (whether by legitimate blood relationship or by adoption) living at the time of adoption.

Existence of an illegitimate son is not a bar to male or female Hindu taking a son by adoption. However, the existence of a son who is to be deemed to be a legitimate child of the parents by operation of Sec.16 of the Hindu Marriage Act, 1955, would be a bar to the father's or mother's right to take a son in adoption.

Clause (ii): Adoption of a daughter:
The object of recognising the right to take a daughter in adoption now conferred by the Act is to permit a person, male or female, to have a substituted or secondary daughter in the absence of a natural born daughter and it, therefore, stands to reason that the right should not be allowed to be exercised when there is a daughter or a son's daughter in existence. A person who has an adopted daughter or the adopted daughter of a son living, cannot adopt a daughter.

Clause (iv) Age of the adoptive mother:
This clause requires that, in case of adoption of a son by a female Hindu, the son must be at least 21 years younger than the adoptive mother. This is obviously, a precautionary measure, there was no such restriction of age under the previous law. This condition must be complied with, otherwise the adoption would be invalid. The requirement of difference in age is mandatory. An adoption is contravention of the rule would be void.

Conclusion
The adoption involves the feeling emotions between the adopted family and adopted child. By the act of adoption the adopted child is uprooted from his natural family and transplanted in to adoptive family like a natural son. The adoptive child severs his ties from the family of his birth and becomes a regular member of the family in which the child has been adopted. The adopted child becomes the child of his adoptive family from the date of adoption for all the purposes like a natural child and thereby get all rights like birth in that family.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly