Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Restrictive Conditions for Adoption
Section 11 of the Hindu Marriage Act, 1956, lays down the restrictive conditions for adoption.
Adoption of a Son:
Section 11: The Hindu Adoption and Maintenance Act, 1956:
Other conditions for a valid adoption-
In every adoption, the following conditions must be complied with:
(i) if any adoption is of a son, the adoptive father or mother by whom the adoption is made 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;
Clause (i) of Section 11 of the Act, lays down if a person wants to adopt a son, he or she should not have a living Hindu son, son’s son or son’s son’s son at the time of adoption. These sons may be by legitimate blood relationship or by adoption. The word son, son’s son, son’s son’s son subsequent does not include a stepson, step son’s son or step son’s son. The subsequent birth of a son cannot invalid the adoption of a son. A Hindu is not prohibited from taking a son in adoption in the presence of the illegitimate son.
If a son, son’s son or son’s son’s son has ceased to be Hindu, then a Hindu male or a female can adopt another son. A Hindu cannot adopt a son if there exists a son of a void or violable marriage under section 11 or under Section 12 of the Hindu Marriage Act, 1955. Section 16 of the Hindu Marriage Act has conferred the status of legitimacy upon the children of void and a voidable marriage. This clause should be modified because if the court finds that the adoption of a son will be for the benefit of the child as well as the adopter, the court should allow the adoption of a son in the presence of his own son or grandson as the case may be.
In Sandhya Supriya Kulkarni v. Union of India, AIR 1998 Bombay 228 case, the provisions which prohibit a person from adopting a second son or daughter were challenged. It was held by the Bombay High Court that since personal laws are outside the ambit of Part-Ill of the Constitution, the court cannot grant any indulgence though the court observed that the Parliament may re-examine the question of relaxing the condition.
Adoption of Daughter:
Section 11: The Hindu Adoption and Maintenance Act, 1956:
(ii) if the adoption is of a daughter the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
Clause (ii) of the Section lays down if a person wants to adopt a daughter he/she should not have a Hindu daughter or son’s daughter whether by legitimate blood relationship or by adoption living at the time of adoption. If the daughter or son’s daughter has ceased to be Hindu, then the adoption of a daughter is not barred. If the daughter is living, the reason that she is suffering from any physical or mental disability cannot be a ground for enabling the parents to make a valid adoption of another daughter.
Age Difference Between Adopter and Adoptee:
Section 11: The Hindu Adoption and Maintenance Act, 1956:
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;
Clauses (iii) and (iv) mention that in the case of the adopter and the adoptee are of different sexes, there must be an age difference of at least 21 years. Thus, if a male wants to adopt a female, there must be an age difference of at least 21years. Same will be the position if a female want to adopt a male child. This condition has been laid to prevent the sexual exploitation of the Adopted child. However, there is no condition of any age difference if the child to be adopted is of the same sex.
There must be the condition of age difference even when the child of the same sex is adopted. The relationship between the adopter and the child should look like a parent and the child.
Simultaneous Adoption:
Section 11: The Hindu Adoption and Maintenance Act, 1956:
(v) the same child may not be adopted simultaneously by two or more persons;
According to clause (v) of the Section, the same child cannot be adopted simultaneously by two or more persons. The two friends cannot adopt the same child. But here two persons, if they are husband and wife can adopt.
Ceremonies of Adoption:
Section 11: The Hindu Adoption and Maintenance Act, 1956:
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption.
Provided that the performance of dattaka homan, shall not be essential to the validity of an adoption.
The ceremony of giving and taking must be performed:
(a) by the giver and taker, or
(b) by any other person under the authority of the giver or taker, as the case may be.
If Delegated: It should be noted that the performance of the ceremony can be delegated but not the power to give or take in adoption. The power is to be exercised by the person who is entitled to give the child in adoption and the person who wants to take the child in adoption
Consent of the Child: Nowhere the act lays down that the consent of the child to be given in adoption is necessary. Even the protest of the child is immaterial. If the child is mature enough the views of the child need be ascertained and his/her consent must be essential for the validity of the adoption.
According to clause (vi), the child must be actually given and taken by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in case of an abandoned child from the place where the child was brought up to some another family. The objective of the corporeal giving and receiving in adoption is
obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony.
It is clearly mentioned that the performance of Duttaka Homam will not be essential ceremonies for the validity of the adoption. Thus, according to this clause, only the ceremony of giving and taking is to be performed.
In Sita Bai V. Ram Chandra, AIR 1970 SC 343 case, the Court held that mere physical act of giving and taking is not sufficient for a valid adoption unless such giving and taking is accompanied with the intention to give and take the child in adoption.
In Devi Prasad v. Triveni, AIR 1970 SC 1286 case, the Court held that for a valid adoption, law requires that the natural parents shall be asked by the adoptive parents to give his son in adoption and the boy shall be handed over and taken for that purpose.
In Ishwar Prasad v. Raj Harimal AIR 1927 Pat. 145 case, the Court held that a mere declaration by the natural parent and adopter is not enough to create a valid adoption, without an actual ceremony of giving and taking.
In Maroti Bangi Teli v. Radhabai AIR 1945 Nag. 65 case, the Court held that the performance of the ceremony of giving and taking was essential and enough for the validity of adoption, no specific words need to be expressed.
In Illachi v. Shivaram, ILR (1957) Raj. 659 case, the Rajasthan High Court held that giving and taking may not be by actually handing over die child to the adoptive parents, where the natural father performs the ceremony of pouring water in the hands of the adoptive father, when the son was himself present, there was giving and acceptance of the gift and the requirements of Hindu law were satisfied.
In Shankar v. Savitri 50 IC 599 case, the Court held that the gift and acceptance must be effected by the corporeal delivery of the boy.
In Bhagan Das Nanu Ram’s case AIR 1954 Raj 17 case, the Court held that it has to be shown that after adoption the adoptee was treated as a son. A mere placing of a registered deed of adoption is not sufficient.
In Amar Singh V.Tejram, AIR 1982 P & H 282 case, the Court held that whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and assigned by the person giving and the person taking the child in adoption, the Court shall presume that the adoption had been made in compliance with the provisions of this Act unless and until it is disproved
In Shivada Ramaswami V. K.S. Prakasa Rao AIR 1993 AP 336 case, the Court held that production of registered document of adoption gives rise to a presumption that adoption has been made in compliance with provisions of the Act unless disproved. Proving of giving and taking of child is not necessary.
In Arjun Banchlor v. Buchi Banchlor (dead) AIR 1995 Orissa 32 case, the Court held that adoption results in changing the course of succession, very grave and serious onus rests upon such person who seeks to displace the natural succession by alleging adoption.
In Lakshman Singh Vs. Rup Karmar, AIR 1961 SC 1378 case, the Supreme Court observed that although no particular form is prescribed for the ceremony and it may vary depending upon the circumstances of each case, giving and taking is an indispensable part of the ceremony. The Supreme Court further observed that in respect of old adoptions, strict proof of ceremonies need not be demanded.
In Urmila Devi Vs. Hemanta Kumar, AIR 1993 Ori. 213 case, the Court held that since no giving and taking ceremony could be established, adoption was not proved.
The Burden of Proof:
In Srinivasan v. John Bentic AIR 1989 Mad. 334 case, the Court held that strict proof of adoption is required since it changes the natural line of succession. If adoption is challenged after a long period of time, a heavy burden is on the one who challenges it.
In P.R. Sudershan Reddy v. P.R. Shashi Rekhanna AIR 1996 AP 300; case, the Court held that the burden of proof that the ceremony of giving and taking took place is on the person who alleges adoption. The persons who challenge adoption should prove that the necessary ceremonies of adoption did not take place.
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