Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > The Conditions for Valid Adoption
Chapter II of the Hindu Adoptions and Maintenance Act, 1956 deals with Adoptions. Section 5 of the Act, deals with the adoptions to be regulated by the Act and Section 6 of the Act deals with the Conditions for Valid Adoption.
Prospective Nature of the Act:
Section 5: The Hindu Adoption and Maintenance Act, 1956:
Adoptions to be regulated by this Chapter-
(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.
(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.
Section 5(1) declares that any adoption made by or to a Hindu after the commencement of this Act is void if it is in contravention of the provisions laid down in chapter II of the Hindu Adoption and Maintenance Act, 1956. This Act is, therefore, prospective and not retrospective. It means the Act is not applicable to the adoptions done before the commencement of the Act but it is applicable to every adoption made after the commencement of the Act. After this act, even if adoption is according to old law or custom, it shall still be invalid, if it is a contravention of the provision of this Act.
By adoption, a child is completely transferred from one family to another family and a number of legal consequences arise, both in the adoptive family as well as in the family of birth. All types of relationship in the family of the birth stands snapped after a child has given for adoption. The adopted child is entitled to succession, maintenance and other legal rights in the adopted family. The adopted child becomes legally dead for biological parents.
As void adoption are no adoption in the eyes of law, they do not affect the status and the position of the adopted child in any manner. According to Section 5 (2) a void adoption will not create any rights in favour of the adopted child in the adoptive family, nor it will destroy the rights of any child in the family of his or her birth.
Conditions for Valid Adoption:
Section 6 lays down the essential conditions for a valid adoption
Section 6: The Hindu Adoption and Maintenance Act, 1956:
Requisites of a valid adoption- No adoption shall be valid unless-
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
Section 6 (i) lays down that the person adopting has the capacity, and also the right, to take in adoption. Section 7and Section 8 of Act deal with the capacity to adopt.
Section 6 (ii) lays down that the person giving in adoption has the capacity to do so. Section 9 of the Act deals with capacity of giving in adoption.
Section 6 (iii) lays down that the person adopted is capable of being taken in adoption. Section 10 of the Act lays down certain conditions relating to the child to be adopted.
Section 6 (iv) lays down that the adoption is made in compliance with the other conditions mentioned in this Chapter. Before adopting a child, it has to be seen that any condition given in Section 11 is not violated.
The conditions given in Section 6 are mandatory and not merely recommendatory. All the four conditions must be complied with and they are equally applicable to the case of adoption of an adult, where permissible. If the conditions given under the Act are not fulfilled, the adoption will not be valid.
In Smt. Prafulla Bala Mukherjee V. Satish Chandra Mukherjee and others A.I.R 1998 Cal. 86 case, it was held that for a valid adoption not only the person adopting should be capable of lawfully taking in adoption, but the person giving must be capable of lawfully giving in adoption and the person adopted must be capable of being lawfully taken in adoption. It is necessary that all these three conditions should be satisfied, and it is not sufficient that only one of them be satisfied.
In Krishna Chandra Sahu v. Pradeep Das, AIR 1982 Orissa 114 it was held by the court that the consent of the wife would be mandatory for a valid adoption.
In Mandaknini Vs. Adinath Dey HR 18 Cal. 69 case, the Court held that a Hindu male who wants to adopt a child must be of sound mind.
In Asha Bai Kate V. Vittal Bhika Nade, A.I.R 1990 SC 670 case, the Hon’ble Supreme Court held that on the remarriage of the son’s widow, the power of the son’s mother to adopt did not revive.
Previous Topic: The Concept of Adoption
Next Topic: Adoption by Hindu Male (S. 7)