October 2, 2022

Brief Explanation of Hindu Adoption laws

Hindu adoption and maintenance act, 1956 was the part of Hindu code bill which faced extreme protest and therefore Hindu code bill was passed in parts. The Hindu Adoption and Maintenance Act, 1956 presented the law for adoption and maintenance among Hindus.

This Act overrode all other law, text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this act in the matter of adoption and maintenance as far those were inconsistent with the provision of this act.

The act clearly provides that any adoption made in contravention to the Act shall be void.

The adoption part of Hindu adoption and maintenance act, 1956 may be briefly explained here-

Application

This act applies to only Hindus and it gives the same definition of Hindu which is provided in Hindu Marriage Act, 1955.

This act has application to-

(a) any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion.

Hindu by birth

The act further explained that the following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be: ―

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;

(bb) any child, legitimate or illegitimate, 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; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

Meaning of Custom or Usage

The act saved the existence of certain customs but to establish any rule as a custom, there should be following conditions-

  • Continuously and uniformly observed for a long time
  • Obtained a force of law among Hindus
  • The rule is certain and not unreasonable or opposed to public policy
  • In the case of a rule applicable only to a family, it has not been discontinued by the family.

Meaning of Maintenance

The act provides the law for maintenance and also defined the meaning of Maintenance.

Maintenance include Provision for food, clothing, residence, education and medical attendance and treatment; and in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage.

Requisites of a valid adoption

An adoption shall be valid only if-

(i) the person adopting has the capacity, and also the right, to take in adoption;

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in this Act.

Capacity to take in adoption (capacity of adoptee)

S/he should have following qualifications to takes son or daughter in adoption-

  • Sound mind
  • Major
  • Consent of wife or husband as the case may be unless wife/husband has completely and finally renounced the word or has ceased to be a Hindu or has been declared by a court to be of unsound mind.

Who can give in adoption any child?

Father or Mother or the guardian of the child, father and mother if alive, shall have equal rights to give a son or daughter in adoption.

“Father” and “mother” do not include an adoptive father and an adoptive mother. Thus, an adoptive father and mother cannot further give in adoption the child.

“Guardian” means a person having the care of the person of a child or of both his person and property and includes―

  • a guardian appointed by the will of the child’s father or mother, and
  • a guardian appointed or declared by a court.

Right of Father and Mother

But such right shall not be exercised by either of them unless one of them 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.

Right of Guardian

Guardian shall have right to give in adoption, in following situations-

  • 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.

Where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.

Duty of the court while granting permission

Before granting permission to a guardian for adoption, the court shall be satisfied that-

  • the adoption will be for the welfare of the child,
  • due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and
  • that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction. If any person receives any payment in consideration of adoption, he shall be punishable with imprisonment which may extend to six months, or with fine, or with both.

Persons who may be adopted

A person shall be capable of being taken in adoption only if the following conditions are fulfilled, namely: ―

  • he or she is a Hindu;
  • he or she has not already been adopted;
  • 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;
  • 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.
  • The same child may not be adopted simultaneously by two or more persons.

Other conditions for a valid adoption

With above mentioned conditions, following conditions must also be compiled-

Adoption of son

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.

Adoption of Daughter

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;

Opposite Sex adoption

In case of adoption by male of a female

If the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;

In case of adoption by female of a male

If the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;

Procedure of Adoption

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 the 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.

While giving adoption the procedure of data homam is not essential.

Effect of Adoption

Effect of adoption will be that-

An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption.

From his/her adoption, all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.

The other effects are-

(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;

(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

(d) An adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will.

Determination of adoptive mother in certain cases

Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother.

Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the step-mother of the adopted child.

Where a window or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child.

Valid adoption not to be cancelled.

No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.

Presumption as to registered documents relating to adoption

Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.