Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > The Concept of Adoption
In order to have one uniform law all over India, so far as Hindus and others to whom The Hindu Adoptions and Maintenance Act, 1956 is made applicable, the said Act was enacted. The various forms of adoptions and various customs regarding adoption has been sought to be abolished and to have one common law for all the Hindus. The Hindu Law as it was before its codification, was (most part of it) to be found in the various smrities, shruties, Nibandhas, and judicial decisions. They varied from State to State and among different castes and families. In order to simplify the Hindu Law, and to bring it in tune with the demand of time it was thought necessary to amend it and to enact the entire law as far as possible so that one may not be required to travel over a very large number of judicial precedents and in the absence of precedent to find out the law in the ancient texts. Keeping these basic objectives the Hindu Adoptions and Maintenance Act, 1956 received the assent of the President on December 21, 1956, and was published in the Gazette of India on December 22, 1956. The adoptions made prior to the commencement of this Act were governed by the pre-existing law, i.e the Uncodified Hindu Law as it was applicable before the commencement of this Act. After the enforcement of The Hindu Adoptions and Maintenance Act, 1956, every adoption shall be made in accordance with the provisions of this Act.
In Jal Kaur v. Pala Singh, AIR 1961 Punjab 391 case, I. D. Dua, J. in para 14 of its judgment said, “All these recent enactments, which have, as their fundamental purpose, the removal of Hindu Women’s disabilities and conferment on them of better rights for maintenance and property, may in my opinion, be legitimately and with advantage referred to and harmoniously construed for the purpose of ascertaining the real manifest intention and the underlying cardinal purpose of the Parliament in enacting the Hindu Adoptions and Maintenance Act, 1956 in response to the needs and demands of a progressive society”. Further, in para 15 of its judgment, the Judge observed that “these legislative measures appear to me clearly to reflect the modern liberal tendency of the Hindu society to confer on Hindu women much larger rights than they had heretofore been enjoying. The medieval conservative theory of treating women as inferior beings have, in my opinion, has finally discarded by the Parliament in the clearest possible terms”
Adoption:
Adoption is the act of establishing a person as a parent to one who is not in fact or in law his child. Thus, adoption signifies the means, by which status or legal relationship of parent and child who are not so related by nature, is created. It is a process by which people take a child who was not born to them and raise him or her as a member of their family. As a result of a decree of adoption, the child becomes the child of the adoptive
Main Objectives of Adoption:
A person adopts a child with certain objects. Though there are different objects of adoption they can be broadly divided into two. They are religious and secular. Religious objective is to secure the performance of one’s funeral rites and the secular objective is to preserve the continuance of one’s lineage.
In Chandra Sekhar Mudaliar V. Kulandaivelu Mudaliar, AIR 1963 SC 185 case, the Supreme Court in its landmark judgment having a consensus view with the earlier decisions of Privy Council has stated that the validity of an adoption has to be judged by spiritual rather than temporal considerations and that devolution of property is only of secondary importance.
In Guramma V. Mallapa, AIR 1964 SC 510 case, the Court held that the main object of adoption is to secure the spiritual benefit to the adopter, though its secondary object is to secure an heir to perpetuate the adopter’s name. Therefore, the existence of a son in the embryo of a co-widow does not invalidate the adoption made by a window.
In Inder Singh v. Kartar Singh, AIR 1966 Punjab. 258 case, the Court opined that the object of adoption is two-fold: (a) to secure the performance of one’s funeral rites and (b) to preserve the continuance of one’s lineage.
In Vijay v. State of Jammu, AIR. 1989 Jammu and Kashmir P-10 case, the Court has put the secular objectives in the second position. The Court held that “Adoption under the Hindu law was recognized by the ancient Hindu philosophers as the presence of a son was considered essential to achieve religious salvation. The object of adoption has been considered to be two-fold: The first is religious intended to secure the spiritual benefit to the adopter and his ancestors by having a son for the purpose of offering funeral cakes and libation of water to the manes of the adopter and his ancestors. The second is secular, intended to secure an heir to perpetuate the adopter’s name and his family”.
In Shuganchand v. Prakash Chand, AIR 1967 SC 506 case, Gajendragadkar, C.J. of the Supreme Court said that Hindu Law is to be applied to Jainas in absence of proof of special customs and usages varying that law. Jains do not subscribe to the theory that a son confers a spiritual benefit upon his father and therefore, Jains regard it as a wholly secular affair.
In Suraj Mai v. Babu lal, AIR 1985 Delhi 95 case, it was held that the object of adoption amongst Jains is purely secular, i.e to secure an heir and perpetuate the adopter’s name. It has no religious significance whatsoever.
Reasons for Adoption in Modern Times:
The objectives for which adoption is made in the modem times are varied.
- A person may take a son in adoption for the kindness to his friends or relatives who have many sons but small assets.
- Sometimes a particular branch of the extended family is desired to keep alive and then it becomes essential to take a boy in adoption.
- The desire of a widow to have someone to support her in her old age may be cited as another important cause of adoption. Sometimes taking the chance of her son-lessness certain family members can deprive her of the property and capture it. For this reason, it is
necessary for the lady to adopt. - To provide consolation and relief to a childless person.
- To rescue the helpless, the unwanted, the destitute or the orphan child and provide it with parents and a home.
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