Essentials of Adoption in India

Adoption is a beautiful and life-changing act. It brings a child into a family and gives them the love, care, and security they deserve. In India, adoption is governed mainly by the Hindu Adoption and Maintenance Act, 1956. This law provides the framework to make sure that adoptions are lawful, fair, and protect the interests of the child.

This article explains in detail the essential legal requirements to make an adoption valid under Indian law. The language is kept simple and easy to understand, without large blocks of text, to ensure clarity.

What is Adoption?

Adoption is the legal process through which a person takes another’s child into their family and treats them as their own biological child. Once adopted, the child has the same rights as a biological child in the adoptive family.

Under Indian law, adoption carries many legal consequences. These include inheritance rights, the duty of maintenance, and parental responsibilities. Hence, the law carefully regulates who can adopt, who can be adopted, and how adoption must be carried out.

The Governing Law: Hindu Adoption and Maintenance Act, 1956

The Hindu Adoption and Maintenance Act (Hindu Adoption and Maintenance Act) applies primarily to Hindus, Buddhists, Jains, and Sikhs. It sets out the conditions for a valid adoption, the capacity of adopters and adoptees, the rights and duties of adoptive parents, and the legal consequences of adoption.

The Act came into effect to provide a uniform law for adoption among Hindus and to protect the welfare of children.

Void and Valid Adoptions (Section 5)

Under Section 5 of Hindu Adoption and Maintenance Act:

• All adoptions by or to Hindus after the Act came into force must comply with its provisions. Any adoption made outside the law is considered void.
  
• A void adoption does not create any legal rights in favour of the adoptive family that the person could not have acquired otherwise. It also cannot destroy the birth family’s rights.

This ensures that adoption is taken seriously and not treated as a mere formality.

The Four Essentials of a Valid Adoption (Section 6)

An adoption is valid only if all the following conditions are met:

Failure to meet any one of these makes the adoption invalid.

Capacity and Right of the Adopter

Who can adopt a child?

Under Sections 7 and 8 of Hindu Adoption and Maintenance Act:

• A Hindu male or female of sound mind and majority age (adult) can adopt.
• If married, the adopter must have the consent of their spouse, except in some special circumstances.

Conditions for Male Adopters (Section 7)

A Hindu male who wishes to adopt must:

• Be an adult (i.e., above 18 years of age).
• Be of sound mind (not mentally unsound).
• Obtain the free consent of his wife if she is alive. The consent is not needed only if the wife:
  • Has renounced the world (e.g., has become a sanyasi),
  • Ceased to be a Hindu, or
  • Has been declared by a competent court to be of unsound mind.
• Have no living Hindu son, grandson, or great-grandson (whether biological or adopted). This is because the law does not allow adoption to create a son when there is already a natural or adopted son alive.
• Maintain an age difference of at least 21 years between himself and the child to be adopted, especially if the child is a daughter.

Conditions for Female Adopters (Section 8)

A Hindu female who wants to adopt must:

• Be an adult and of sound mind.
• If married, must have her husband’s consent, unless he:
  • Has renounced the world,
  • Ceased to be a Hindu, or
  • Has been declared unsound by a court.
• Have no living Hindu daughter or granddaughter (biological or adopted).
• Maintain an age difference of at least 21 years between herself and the child, especially if adopting a son.

Important Judicial Observations

• The Orissa High Court in Krishna Chandra Sahu v. Pradeep Das (1982) emphasised that the consent of the wife is mandatory for a valid adoption by the husband.
• The Supreme Court has recognised that consent can be express or implied; for example, a deaf or mute spouse can give consent through gestures, as held in Ambrish Kumari v. Hatu Prasad.
• Adoption made without valid spousal consent is void.
  

Capacity of Person Giving a Child for Adoption (Section 9)

The person who surrenders the child for adoption must also have the legal capacity to do so. The law recognises three categories:

Father’s Rights

• The biological father has the primary right to give the child in adoption.
• He must be of sound mind and legally competent.
• His right can be restricted only if he has renounced the world, ceased to be Hindu, or been declared unsound by the court.

Mother’s Rights

• The biological mother has equal right with the father to give the child in adoption, but only if the father is not alive or has lost his right (renounced world, ceased Hindu, unsound mind).
• A mother loses this right if she remarries, as held in Ram Sakhi Kuer v. Daroga Prasad Singh.
• The mother must be biological and not an adoptive or guardian mother.

Guardian’s Rights

• If both parents are dead, renounced, unsound, or the parentage of the child is unknown or the child is abandoned, a guardian may give the child in adoption.
• The guardian must obtain prior court permission.
• The court must be satisfied that the adoption is for the welfare of the child and that there is no child trafficking or illegal payment involved.

Capacity of the Child to be Adopted (Section 10)

The child to be adopted must fulfill the following conditions:

• The child must be a Hindu.
• Must not have been adopted previously.
• Must be unmarried unless local custom permits the adoption of married persons.
• Must be below 15 years of age unless custom allows otherwise.

In Kumar Sursen v. State of Bihar, the court held that non-Hindus cannot be adopted under Hindu Adoption and Maintenance Act.

In Amar Singh v. Tej Ram, the court recognised that adoption of a married person is allowed if it is customary in that community.

Additional Conditions for Valid Adoption (Section 11)

• The adopter must not have a living child of the same gender at the time of adoption (biological or adopted).
• There must be an age difference of at least 21 years between adopter and adoptee when adopting a child of opposite gender (male adopting female, female adopting male).
• A child cannot be adopted simultaneously by more than one person or family.
• The adoption requires actual transfer — the child must be physically given and received by the adopter with the genuine intention of transferring family rights.
• The performance of datta homam or any ritual is not necessary for a valid adoption.

Procedure for Adoption

Registration and Welfare Agencies

• Prospective adoptive parents must register with a Child Welfare Agency recognised by the government.
• The agency assesses the suitability of the adopter and finds a suitable child.
• Interviews and home studies are conducted to ensure compatibility.

Court Permission

• In cases where the guardian is giving the child in adoption, prior permission of the court is mandatory.
• The court examines the child’s welfare, financial and moral fitness of the adopter, and ensures no illegal payment is involved.

Final Adoption Order

• The court, after satisfaction, issues an adoption decree.
• The child then becomes a legal member of the adoptive family with all associated rights.

Role of the Court in Adoption

The court plays a crucial role to ensure:

• The adoption is in the best interest of the child.
• There is no exploitation, trafficking, or payment involved in the process.
• The child’s wishes are taken into account, if the child is capable of expressing them.
• The adopter is financially and morally fit to take care of the child.
• The place of residence and care arrangements for the child post-adoption are suitable.

Maintenance Rights Post-Adoption (Section 20)

• The adopted child has the same right to maintenance as a biological child.
• Adoptive parents are obligated to maintain the child until they attain majority.
• Conversely, the adopted child may have a duty to maintain adoptive parents if they are Hindus and the child is still a minor.

Conclusion

Adoption under Indian law is a noble and serious process with the child’s welfare as the top priority. The Hindu Adoption and Maintenance Act provides clear, well-defined criteria on:

• Who can adopt,
• Who can be adopted,
• Who can give a child in adoption, and
• The formalities that must be followed.

By understanding and following these essentials, families can ensure that adoption is valid, meaningful, and legally binding, providing the child with a secure and loving home.