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.<\/p>\n
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.<\/p>\n
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.<\/p>\n
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<\/strong><\/em>, 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.<\/p>\n 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.\u00a0Subsequent sections of the Act delve into the qualifications necessary for a person to undertake an adoption.<\/p>\n Section 7 of the Act deals with the capacity of a Hindu Male to take in adoption. The conditions are as follows:<\/p>\n 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:<\/p>\n 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:<\/p>\n The Section has also made it clear that the expressions \u201cfather\u201d and \u201cmother\u201d does not include adoptive parents, that is, adoptive father and adoptive mother.<\/p>\n 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:<\/p>\n In the case of Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang Narayan Kanse<\/strong>,<\/em>\u00a0it 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.<\/p>\n 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:<\/p>\n This Section also provides that the validity of the adoption does not depend on the performance of \u201cdatta homam<\/strong>\u201d.<\/p>\n 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.<\/p>\n 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.<\/p>\n In the case of Basavarajappa v. Gurubasamma<\/strong><\/em>, 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.<\/p>\n Other sections also dictate the effects of a valid adoption, they are as follows:<\/p>\n 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.<\/p>\n Section 14 prescribes some determinants of an adoptive mother, they are as follows:<\/p>\n 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\u2019s 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.<\/p>\n Authored by\u00a0Saagneek Ghosh<\/span><\/span><\/a>,\u00a0<\/strong>Legal Intern, LawDiktat.<\/strong><\/p>\nWho can adopt a Child?<\/strong><\/h1>\n
Capacity of a Male Hindu to take in Adoption.<\/h2>\n
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Capacity of a Female Hindu to take in Adoption<\/h2>\n
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Who can give a child for Adoption?<\/strong><\/h1>\n
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Persons who may be adopted?<\/strong><\/h1>\n
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Other Essential Conditions for a Valid Adoption<\/strong><\/h1>\n
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Effects of Adoption<\/strong><\/h1>\n
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Determination of Adoptive Mother in certain cases<\/strong><\/h1>\n
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Conclusion<\/strong><\/h1>\n