April 16, 2021

Concept of Adoption under Hindu Adoption and Maintenance Act, 1956

Family Law

INTRODUCTION

Adoption was considered as a sacramental act. There has been an acute controversy not only among writers, but also among judges, whether in adoption the secular motive predominates.[1]  Some judges still insist that the object of adoption is twofold: to secure performance of one’s funeral rites and to preserve the continuance of one’s lineage.[2] Under Hindu Adoption and Maintenance Act, there can be two types of adoption, one purely secular, and the other the sacramental. All adoptions after 1956 are secular, and to be valid, must conform to the requirement of the Act. Adoption has a significant impact on a child’s right to information we have your consent. It is clear when the child was born. we cannot accept the consent of the child in infancy, but when the child is of such age he can also say that he wants the child to get involved.

ADOPTION

Adoption has been described in Manu smriti and its mean transplantation of a child from one family to another family. Their ideal was not just to have a son, but the adopted son must bear a reflection of the natural son. Hindu Adoption and Maintenance Act has made the definition of ‘adoption’ much wider by using the word ‘child’ instead of ‘son’. Child includes both a girl and a boy child, and not merely a son. According to act – a Hindu means not only a person that follows Hinduism but also includes other sects of Hinduism, such as- Buddhists, Jains, Sikhs, Virashaiva, Lingayat, or members Arya Samaj. As a matter of fact, the Hindu Adoption and Maintenance Act covers everyone residing in India who is not a Christian, Muslim, Parsi or Jew.

WHO MAY TAKE IN ADOPTION?

Under this Act if adoption is made in consideration of some pecuniary benefit the adoption is valid. Both Hindu male and a female can make adoption and it is not necessary to enquire into the motive of adoption.[3]

CAPACITY OF A HINDU MALE TO ADOPT

Section 7 [4]states that a male Hindu who is willing to adopt a child must fulfil the following conditions- must be sound mind and ‘all the condition of insanity including epilepsy, idiocy and lunacy will come under the unsoundness of mind’[5], must be major and has the ability to have a son or a daughter. The consent of wife is necessary for the valid adoption ‘An adoption made without the consent of wife is void’.[6] ‘In case he have more than one wife then consent of all wives is necessary’.[7]

 CAPACITY OF A HINDU FEMALE TO ADOPT

Section 8[8] of the act states that a Hindu Female willing to adopt a child must: must attained the age of minority, must be of sound mind, be a widow Divorced, or Unmarried in order to adopt.

If the woman has converted to another religion or has renounced the world, consent is not required for adoption. But the presence of a living woman was a necessary requirement for Indian men to adopt children. If she has a husband who is alive, she will not have the capacity to adopt a child.

RIGHT TO GIVE CHILD ADOPTION

 The parents and guardian of the child can give them up for adoption as per sec.9[9] of the Hindu Adoption and Maintenance Act..

According to act: The biological father of a child has the authority to give him up for adoption and the consent of the child’s biological mother is necessary. In some circumstances a mother will have the right to give the child up for adoption if:  The father is dead, if he is unsound mind, renounced the world; or he Converted to some other religion.

Guardian right to give children – ‘Guardian include both de jure and de facto guardians. A manager, secretary or any person in charge of an orphanage or a person who has brought up the child, or under whose care the child is, can give the child in adoption If adoption is for the welfare of the child and no payment has been made in any form in exchange for the child’.[10]

WHEN IS ADOPTION VALID?

Under the Hindu law of adoption, only a Hindu can adopt a child if he/she abides by the essentials prescribed in Section 6 of the act: The adoptive parent/s have the capacity and rights to adopt. The person/s giving up the child for adoption has the capacity to do so, person being adopted has the capacity to be taken in adoption, adoption is made in according with the act. If these requirements are fulfilled, then adoption be valid.

RESISTANCE CONDITIONS OF ADOPTION

The Hindu Adoption and Maintenance Act prescribes a set of rules for a valid adoption, which must be complied with-

  • ADOPTION OF A SON

A person has capacity to adopt, it is not necessary that he has also the right to make an adoption. The act states that if someone desires to adopt a son, they must not have a living son, grandson, or even a great-grandson at the time of adoption.[11] It is not valid whether the son is legitimate, illegitimate, or adoptive.

  • ADOPTION OF A DAUGHTER

As same to the conditions of adopting a daughter –It spells that someone desire to adopt a daughter must not have a hindu daughter or a son’s daughter. But if daughter or son’s daughter has ceased to be a Hindu, adoption of a daughter can be valid.[12]These conditions were challenged in the case of Sandhya Supriya Kulkarni v. Union of India.[13]

  • ADOPTION OF A FEMALE CHILD BY A MALE

A Hindu male who wants to adopt a daughter must have the right to adopt a daughter as provided for in Section 7 of the Act and Section 11 (iii) must be at least 21 years older than the girl to be adopted.

  • ADOPTION OF A MALE CHILD BY A FEMALE

If a Hindu female who desire to adopt a boy, she must first meet the requirements set out in Section 8 of the Act and have the right to adopt a child. Also, she must be at least 21 years older than the child she wishes to adopt.

  • TWO PERSONS CANNOT ADOPT THE SAME CHILD

Here the person does not mean husband and wife, as in such case, both adoptive parents of the child.[14]

  • AGE DIFFERENCE BETWEEN PARENT AND CHILD

If a Hindu desire to adopt a child of the opposite sex he/she must be older to the child by at least 21 years.[15]

EFFECTS OF ADOPTION

Adoption will change a child’s life in many ways. Become part of a new family and will have property rights. When a child is adopted, are considered the children of all adoptive parents. Adopting parents will have all the rights and responsibilities and the child must have all the rights and responsibilities. However, there are certain conditions that must be met after the child is adopted:

  1. He should not have close contact with anyone from his biological family and should not marry anyone from his birth family.
  2.  If the child has property before he or she is adopted, they will continue to own it later. However, such ownership may impose certain obligations on him and he must support all of these obligations, including his biological family if necessary.
  3. An adopted child should not deprive any member of his or her family of ownership before he or she is adopted.

IS IT POSSIBLE TO CANCEL THE ADOPTION RIGHT?

Section 15 of the law makes it clear that no parent can cancel the actual adoption or that the child has no right to refuse adoption and return to his or her biological family. Adoption cannot be abolished if a person chooses to adopt and is properly executed. You cannot go back after you have been adopted properly. That is the decent thing to do, and it should end there. Prohibition of payments.

CONCLUSION

After studying the Hindu Adoption and Maintenance Act, 1956, a brought a new perspective on Indian law has been determined. The document discusses not only the law on the adoption and care of Indians, but also the law on Indian marriage and marriage, as well as the care of children and elderly parents, the care of widows, and unmarried girls, serving members of the municipality, family, widowed bride. Recent court rulings show that the Indian courts have gradually been liberal in ruling on alimony cases. Maintenance not only for the wife but also for all, which includes the maintenance of the daughter-in-law, the widow, the maintenance of children and elderly parents, the maintenance of dependents or the maintenance of family members. This provision, therefore, implies the public duty of a person who can support himself to support those who cannot. Over time, people have made a preconceived notion of the Code, the fear of minorities cannot be forgotten, on the contrary, the fear of being overshadowed by the laws of the executive majority.


[1] See Mayne, Hindu Law and Usage, (11th Ed.) 184-88

[2] Inder Singh v. Kartar Singh, 1966 punj 258

[3] Naidu v. Naidu, 1970 SC 1673

[4] https://indiankanoon.org/doc/1698417/

[5] Gopi v. Madan, 1970 Raj 190

[6] Bholooram v. Ramlal 1989 MP 198

[7] Proviso to sec.7

[8] https://indiankanoon.org/doc/1494822/

[9] https://indiankanoon.org/doc/754978/

[10] Dhanraj v. Suraj 1981 Pat 204

[11] Section 11(i)

[12] Section 11(ii)

[13] AIR 1998 Bom. 228

[14] Kasturi v. Ponnammal, v. 1961 SC 1320

[15] Clauses 3 and 4 of sec.11 of Hindu Adoption & Maintenance Act.

[16] Chandra v. Nanak 1974 Del. 175

[17] 1985 2SCC 556

[18] 2001 7 SCC 740

[19] 2005 3 SCC 636

[20] Sardul Singh v. Pratap Singh, 1877 P.R 46

[21] 1983

[22] 24 June 2016

[23] Venkayya v. Raghavamma, 1942 Mad. 1

[24] (2018) 1 RCR (CRIMINAL) 196 , 2017 SC 1377 …

[25] Criminal Appeal No. 615 of 2020 (Arising out of SLP (Crl.) No.8260/2018)

[26]  594 SC 04 Nov 2020.


Author: Sajal Singhal [Student, Amity Law School, Gwalior (Amity University)]

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