Introduction

Adoption is a legal process by which an individual assumes the role of a parent and accepts all the responsibilities associated with being a biological mother or father. Legal adoption results in the permanent transfer of all the rights and responsibilities that a legal or biological parent holds to the person adopting the child.

Historically, adoption practices were not common in India, and during the British colonial era, traditional Hindu Law governing adoption was followed, which had religious underpinnings, rituals, and sacraments. However, in 1956, a codified and written law was introduced, known as The Adoptions and Maintenance Act, 1956, which governs the adoption and maintenance of Hindus in India.

Under the previous Hindu Law, adoption was considered a sacramental and religious act, with specific rituals and rules. However, in modern times, the Adoptions and Maintenance Act has eliminated all religious and sacramental aspects of adoption, making it a secular process. Any adoption that takes place after 1956 must adhere to the guidelines of this Act.

Although the Adoptions and Maintenance Act has secularized the adoption process, it does not mean that it is a complete departure from the previous Hindu Law. In the case of Amim Chand v. Sukhbir Singh, where plaintiffs contested an adoption that went against their customs, it was held that the custom went against the provisions of the Act and was, therefore, overridden by the Act.

Who can adopt a Child?

In accordance with The Hindu Adoptions and Maintenance Act, only a Hindu male or female who has the capacity and the legal right may undertake an adoption. It is essential for both the adopter and the person relinquishing the child to have the capacity to do so, in order for the adoption to be considered valid [Section 6, The Hindu Adoptions and Maintenance Act]. The Act further stipulates additional requirements that must be satisfied for the adoption to be considered legally binding, which will be explored later in this article. Subsequent sections of the Act delve into the qualifications necessary for a person to undertake an adoption.

Capacity of a Male Hindu to take in Adoption.

Section 7 of the Act deals with the capacity of a Hindu Male to take in adoption. The conditions are as follows:

1. The male must be a Hindu. He should not be a minor and should be of sound mind as well.
2. The proviso of the Act states that if the male has a wife living, then the consent of the wife must be obtained. This can be overlooked if the wife 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.
3. If the person has more than one wife, then the consent of all the wives must be obtained.

Capacity of a Female Hindu to take in Adoption

Section 8 of the Act deals with the capacity of a Hindu Male to take in adoption. The conditions which must be fulfilled are as follows:

1. The female must be a Hindu. She should not be a minor and should be of sound mind as well.
2. The proviso of the Section states that if the female has a husband living, she should not adopt without the consent of the husband. This may be overlooked if the husband has completely renounced the world or has ceased to be a Hindu or has been declared by a competent Court to be of unsound mind.

Who can give a child for Adoption?

Section 9 of The Hindu Adoptions and Maintenance Act has provided some conditions which must be fulfilled before a child can be given for adoption. The conditions are as follows:

1. No person except for the mother and the father or the legal guardian of a child shall have the capacity to give a child for adoption.
2. The father has the right to give his child for adoption with the consent of the wife. However, if he has renounced the world, died or has gone missing for a period of 7 years or has ceased to be a Hindu, then the primary right goes directly to the mother of the child.
3. The mother may also give the child for adoption with the consent of the husband. However, if she has renounced the world, died or has gone missing for a period of 7 years or has ceased to be a Hindu, then the primary right to give the child for adoption goes to the father.
4. If both the mother and father have died, or have completely renounced the world or have abandoned the child or have been declared to be of unsound mind by a competent court or in the cases where the parentage of the child is not known, then the guardian of the child may give the child for adoption with the permission of the court to any person, which includes the guardian himself. ‘
5. In the above case, before granting permission to a guardian to give a child for adoption, the court will have to be satisfied about the following conditions;

• The adoption must be done for the welfare of the child.
• Due consideration must also be given for the consent and the wishes of the child.
• The applicant for permission has not received or agreed to receive and that no person has made or given or agreed to give to the applicant any payment or reward in consideration of the adoption without the sanction of the court.

The Section has also made it clear that the expressions “father” and “mother” does not include adoptive parents, that is, adoptive father and adoptive mother.

Persons who may be adopted?

According to Section 10 of The Hindu Adoptions and Maintenance Act, 1956, a person, before he/she is eligible to be taken in for adoption, must fulfill the following conditions:

1. The person, who is to be adopted, must be a Hindu.
2. He or she must not already be adopted.
3. He or she has not been married unless there is a custom or a tradition which allows the adoption of married persons.
4. He or she must not have completed the age of 15 years, unless there is a custom or tradition governing the parties which allows for such an adoption to take place.

In the case of Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang Narayan Kanse, it was held that the Adoption of a boy who is more than 15 years of age and married is not illegal on account of it contravening Sections 10(iii) and 10(iv) of the Act, provided that there is a custom which allows such kind of adoption and is prevalent in the community.

Other Essential Conditions for a Valid Adoption

Section 11 of the Act prescribes some conditions which must be complied with in order for an adoption to be called valid. The conditions are as follows:

1. If the adoption to be made is of a son, then the adoptive father or the adoptive mother 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 person who is to be adopted is a female, then the adoptive father or the adoptive mother must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption.
3. If the person who is to be adopted is a male, and the person who is adopting is a female, then the adoptive mother should be at least twenty one years older than the person to be adopted.
4. If the person who is to be adopted is a female, and the person who is adopting is a male, then the adoptive father should be at least twenty one years older than the person to be adopted.
5. The same child cannot be adopted simultaneously by two or more persons.
6. The child given for adoption must be given and taken in adoption by the parents or guardians concerned or under their authority with the intention to transfer the child from the family of its birth to the family of its adoption.

This Section also provides that the validity of the adoption does not depend on the performance of “datta homam”.

Effects of Adoption

Section 12 of the Act outlines the effects of adoption. According to the section, an adopted child shall be considered to be the child of the adoptive father or mother for all purposes with effect from the date of adoption. From that date, all ties of the child to his or her family of birth shall be deemed to be severed and replaced by new relations created as a result of the adoption.

However, the proviso to the section sets a restriction on the adopted child’s marriage. The child cannot marry any person who he or she could not have if he or she had continued to live in the family of his or her birth. Additionally, any property that vested in the name of the child shall continue to vest in him or her subject to certain obligations, including the obligation to maintain relatives in the family of his or her birth. The adopted child is also prohibited from depriving any person of any estate which he or she possessed before the adoption.

In the case of Basavarajappa v. Gurubasamma, it was held that upon adoption, the adoptee gains the same rights as that of a natural born son in the adopting family. The adoptee also becomes a coparcener in the Joint Hindu Family after severing all ties with the family of his or her birth.

Other sections also dictate the effects of a valid adoption, they are as follows:

• Section 13 describes the right of adoptive parents to dispose of their properties. According to the Section, an adoption does not deprive the adoptive father or the adoptive mother of their right to dispose of his or her property by transfer inter – vivos or by will, unless there exists an agreement to the contrary.
• Section 15 further states that an adoption which has been validly made cannot be cancelled by the adoptive father or the adoptive mother or any other person. Moreover, the adopted child cannot renounce the adoption and or his/her status in the adoptive family and return to the family of his/her birth.
• Section 16 deals with a presumption with regard to documents produced relating to adoption. It states that whenever any document which has been registered under any law for the time being in force, is produced before the court which purports that an adoption has been recorded and is duly signed by the person giving and the person taking the child in adoption, it will be presumed that the adoption has been made in compliance to the provisions of this Act, and henceforth, will be considered valid unless it is disproved.

Section 17 deals with the prohibition of payments in case of an adoption. The Act states that no person shall receive or agree to receive any payment or reward in case of adoption of any person, and no person shall give or agree to give any payment or reward the receipt of which has been prohibited by Section 17. If this Sub – Section (1) of the Section is contravened, then the person who has contravened the provisions shall be liable to be punished with imprisonment and fine which may extend upto six months, or with fine, or with both.

Determination of Adoptive Mother in certain cases

Section 14 prescribes some determinants of an adoptive mother, they are as follows:

1. A Hindu male, who has a wife adopts a child, she shall be deemed to be the adoptive mother.
2. Where an adoption has been made with the consent of multiple wives, the senior most (in marriage) among them shall be the adoptive mother of the child.
3. 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 child.
4. Where a widow or an unmarried woman adopts a child, any husband whom she subsequently marries shall be deemed to be the step – father of the child.

Conclusion

Thus, here we can see that adoption is one of those institutions which have been made secular by The Hindu Adoptions and Maintenance Act, 1956. It has been furthered for individual interest. It enables a childless person to make somebody else’s child, his own. The Hindu ideal was not just to have a son but the adopted son must bear a reflection of the natural son. With all these intents and purposes, Hindu law put the rights of an adopted child on par with those of a natural child. Therefore, the ideal also meant to sever the relationships and ties of the child with the family of his/her birth and to make a new ties with that of the family which has adopted the child.

Authored by Saagneek Ghosh, Legal Intern, LawDiktat.