ADOPTION UNDER THE HINDU ADOPTION & MAINTENANCE ACT

This Article is written by Rashbana Thansi student of Govt. Law college Calicut.

So many parents suffer without having a child, at the same time many children wait for the care and affection of parents in orphanages and homes. Here is the simple solution for both parties: Give a child to the parents who don’t have a child. This is the precise meaning of “Adoption”. Is adoption an easy process? Can any person adopt? This is the question arising in the mind.

Adoption is a great process but some are misusing the process immensely. So there must be certain laws for the security of children. In India, the laws relating to the adoption and maintenance generally depend on the personal laws of a different religion. According to the Hindu religion, the adoption and maintenance are within the ambit of the “The Hindu Adoption and Maintenance Act, 1956” referred to as “HAMA”.

Adoption is the admission of a stranger by birth to the privilege of a child by a legally recognized form of affiliation.

According to Hindu beliefs, a person who dies without having a son will suffer in hell, called ‘Put’ and there will be no salvation to his soul. A son is considered as the victory of a father under Hindu mythology. A son can save the father’s soul from the suffering in the put, so the son is known as Putra. The Hindu religion recognized the adoption of a son as a means of salvation in the case of a Hindu.

In 1956, Government of India enacted The Hindu Adoption and Maintenance Act. Before the enactment of the law, only a male Hindu had the right to adopt a son. When he does not have a son, grandson, or great-grandson. A wife could not adopt a son during her husband’s lifetime. After his death, she could adopt a son for the deceased husband, if he had expressly authorized her to do so. A woman could not adopt a son for herself. A daughter could not be adopted by a male or female Hindu. Adoption was done by the ceremony called ‘Datta homa’. Now datta homa is not essential for the validity of the adoption.

This Act applies to any person who is belonging to the Hindu community in India. In Ramasubbayya v. Chanchu Ramayya adoption was defined as “A juridical act creating between two-person certain relations, purely civil, of paternity and affiliation”. According to the Hindu Adoption and Maintenance Act, 1956, the Hindu married couples or unmarried adults can only adopt a Hindu child.

If a foreigner wants to adopt an Indian child the parents should approach the Court under Guardian and Wards Act, 1980.

WHO IS A HINDU?

According to the Act,

  • Any person who is a Hindu by religion.
  • A Virashaiva, a Lingayat or a follower of the Brahmo Samaj or Arya Samaj.
  • Any person who is a Buddist, Jaina, or Sikh by religion.
  • Any other person domiciled in the territories to which the act extends and who is not a Muslim, Christian, Parsi, or Jew by religion.
  • Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jain, or Sikh by religion.

As per the The Hindu Adoption and Maintenance Act, the adopted child shall fulfill these criteria,

  • The child should be Hindu.
  • The child was not adopted before.
  • The age of the child is below 15 years.
  • The child should not be married.

As per the Guardians and Wards Act, 1890 any child can be adopted as per some conditions:

  • The child is not Hindu.
  • The child should be minor.
  • An orphan or abandoned or surrendered child.

ESSENTIALS OF A VALID ADOPTION BY A MALE HINDU UNDER THE HINDU ADOPTION AND MAINTENANCE ACT, 1956

  1. A male Hindu, who is of sound mind and is not a minor has the capacity to take the son or daughter in adoption.
  2. If he has a wife living at the time of adoption, he shall not adopt without the consent of the wife. If the wife has completely renounced the world or has ceased to be a Hindu or has been declared to be of unsound mind by a Court of competent jurisdiction, the consent of the wife is not required for adoption.

In the case, Kashibai v. Parvath ibal, the Court held that a male Hindu adopted a son without consent of his wife, adoption was not valid.

  1. If he wants to adopt a son, he should not have a Hindu son, son’s son, or son’s son’s son. (whether by legitimate relationship or by adoption) living at the time of adoption.

In the famous case, Thathakutty v. Kittamuthu, the Court held that the adoptive father is not competent to adopt a daughter or son’s daughter (whether by legitimate blood relationship or by adoption) was living at the time of adoption.

  1. If he wants to adopt a daughter, he should not have a Hindu daughter or son’s daughter, whether by legitimate blood relationship or by adoption, living at the time of adoption. He should be at least 21 years older than the girl to be adopted.
  2. Boy or girl to be adopted must not have been previously adopted.
  3. The boy or girl to be adopted should not have attained the age of 15 years. However, if the custom applies to the parties’ permits, a boy or girl who has completed 15 years of age can be adopted.
  4. The boy or girl to be adopted should not be a married boy or girl. However, if the custom applies to the parties’ permits, a valid adoption can be made for a married boy or girl.
  5. The boy or girl to be adopted should be a Hindu.
  6. The child should be given in adoption by the Father or mother or the guardian of that child.
  7. The father or mother, if alive, shall have equal right to give a son or daughter in adoption. Such a right shall not be exercised by either of them without the consent of the other. The consent can be avoided, if the other spouse has renounced the world or ceased to be a Hindu or has been declared to be of unsound mind by a competent court.
  8. The mother of a child can give the child up for adoption without the consent of the father, if he has renounced the world or has ceased to be a Hindu, or has been declared to be of unsound mind by a competent court. If the father of the child is dead, then the mother can give the child up for adoption.
  9. After the death of the father and mother, a child can be given in Adoption, by the guardian with the consent of the Court.
  10. In the case of a foundling (an infant or small child found abandoned: a child without a known guardian), adoption can be made only with the consent of the court.

Under the Hindu Minority and Guardianship Act, 1956, the Guardian should be Natural Guardian or Guardian appointed by the Court. Natural Guardian for both the boys and the unmarried girls is first the father and then the mother. In a famous case, Guramma v Mallappa, the Court held that adoption during the wife’s pregnancy was valid. the option will not be affected by the subsequent birth of a son or a daughter. The subsequently born child and the adopted child and the adopted child remain as brothers or sisters or brother and sister with equal control over the property of the adopted father and mother.

ESSENTIALS OF A VALID ADOPTION BY A FEMALE HINDU UNDER THE HINDU ADOPTIONAND MAINTENANCE ACT.1956

  1. A female Hindu who is of sound mind and is not a minor can adopt a son or a daughter.
  2. An unmarried female (spinster), a widow, or a divorced wife can adopt a son or a daughter.
  3. A married woman can adopt a son or daughter with the consent of the husband. In the case of a married woman, her husband can also adopt a son or daughter with the consent of the wife.
  4. A married woman can adopt a son/daughter without the consent of the husband if the husband has completely and finally renounced the world, or has ceased to be a Hindu or has been declared by a competent court to be of unsound mind.
  5. If a female adopts a son, she should not have a Hindu son, son’s son, or son’s son’s son, whether by blood relation or by adoption living at the time of adoption. If a female adopts a son, the adoptive mother should be at least 21 Older than the person to be adopted.

In this case, D.R. Patil V. S.R .Patil, the adoptive mother was not 20 years older than the adopted son. Court declared that the adoption was invalid.

  1. Female adopts a daughter, the adoptive mother should not have a Hindu daughter or a son’s daughter living at the time of adoption.
  2. The boy or girl to be adopted must not have been previously adopted.
  3. The boy or girl to be adopted should not have attained the age of 15 years. However, if the custom applies to the parties permits, a boy or girl who has completed 15 years of age can be adopted.
  4. The boy or girl to be adopted should not be a married boy or girl. However, if the custom applies to the party’s permits, a valid adoption can be made of a married boy or girl.
  5. The boy or girl to be adopted should be a Hindu.
  6. The child should be given in adoption by the father or mother or the guardian.
  7. The primary right to give a son or daughter in adoption is vested in the natural father. If the mother of the child is alive the father can give the child up for adoption only with the consent of the mother. If the mother had died or renounced the world or declared to be of unsound mind by a competent Court, the father can give the child up for adoption without the consent of the mother.
  8. The mother of the child can give to adoption without the consent of the father if he has renounced the world or has ceased to be a Hindu or has been declared to be of unsound mind by a competent Court.
  9. According to the guardian’s consent, after the death of the father or mother a child can be given in adoption by the District Court.

EFFECT OF ADOPTION

Under the old Hindu Law, a widow could adopt a son for the deceased husband. When a widow adopts a son, he could claim a share of the property of the deceased adoptive father. Any property vested in any person on the death of the father was divested by the adoption and the adopted son can claim the property. Because of the presumption that the adoption was affected by the deceased husband before his death. This theory is called the “Relation back theory“. The adoptive son will get retrospective rights.  But after the commencement of the HAMA, the adopted child cannot claim the share of the property of the deceased adoptive father. Thus, the adoption of a son by a widow will not result in divesting of property vested in the members of the adopted family. The doctrine of relation back is not applicable now.

When a son or daughter is adopted, some consequences would arise. The property vested in the child from his original family will not be divested because of the adoption. The adopted child cannot marry any of his or her ręlative belonging to his original family and who comes within the degrees of prohibited relationship. The child who is adopted cannot marry any relation who comes within the degree of prohibited relationship in the adopted family also.

Adoption is considered a good deed by a human being. Children are the future of the world. Every child should get proper parenting and love and should ensure the right.

REFERENCES

Dr Saxena. Poonam, Family Law Lectures, Ed. 3, LexisNexis, 2011.

D.R. Patil v. S.R .Patil (AIR 1992 Bom. 189)

Kashibai v. Parvath ibal (1996 (1) KLT SN 8 P. 6)

Guramma v Mallappa (AIR 1964 SC 510)

Thathakutty v. Kittamuthu (1983 KLT 160)

The Hindu Adoptions and Maintenance Act, 1956

The Hindu Minority and Guardianship Act, 1956

The Hindu Marriage Act, 1955