Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Who can be Adopted?
Section 10 of the Hindu Adoption and Maintenance Act, 1956 deals with the qualification of the child to be taken in adoption. Thus this Section tells us about who can be adopted? Under modem law, a lunatic child can also be adopted. Adoption of a daughter is also allowed. There is no condition that only a Sapinda may be adopted. The child need not be belonging to the same caste or community to which adopter belongs. The adoption of orphans, foundling and abandoned children are allowed. The child of any female may be adopted
Section 10: The Hindu Adoption and Maintenance Act, 1956:
Persons who may be adopted- No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely-
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.
The Child Must be Hindu:
The child to be adopted must be a Hindu child. Whether the child is related to the adopter by blood or marriage or is a total stranger is immaterial. It is also immaterial as to which caste the child belongs. The condition that only a Hindu child can be adopted appears to be discriminatory. This type of condition should be done away with.
No Previous Adoption:
This condition has been imposed so that an adopted child may not become a rolling stone. But for the welfare of the adopted child, the court should have the discretion to decide whether re-adoption of the adoptive child will be for the benefit of the child or not.
Only Unmarried Child Can be Adopted:
Section 10(iii) prohibits the adoption of a married child but recognizes any customs to the contrary. If the children of higher age are transferred to adoptive families they may find it difficult to adjust in new families and new environment. At the same time, they may not have an attachment to adoptive parents. Thus, there is a need to modify such condition which permits the adoption of a married child, if custom permits
Age Bar:
Subsection 10 lays down the age limit for a child to be eligible to be adopted. The child should be below the age of 15 but if the custom or usage applicable to be parties permits the child above the age of 15 may also be adopted.
Effects of Customs and Usage:
In Maya Ram Vs. Jai Narain, AIR 1989 P&H 2003 case, Punjab and Haryana High Court held that the adoption of married Jat boy above 15 years of age is valid on the force of customs prevailing in that community.
In Priya Nath V. Indumati, AIR 1971 Orissa 211 case, the Orissa High Court took the view that the Karans in Orissa belong to the regenerate class. The effect of this position is that the prohibition in Hindu law against the adoption of a sister’s son is applicable to Karans.
In Tarabai V. Bagonda, AIR 1981 Bom. 13 case, a married person was adopted and the married man’s wife was pregnant at the time of adoption, but the child was born only after adoption. Held, that adoption of a married person is valid, and any child born to him after adoption will be the child of the adoptive family.
In Anirudh v. Babarao, AIR 1983 Bom. 391 case, the Court held that once the custom is recognized judicially, it is not required to be independently proved in subsequent cases.
In Damodarlal V. Lain Lal, AIR 1985 Rajastan 55 case, the Court held that adoption of the brother’s daughter’s son could not be said to be invalid on the ground that the adoptive father and the natural mother of the adoptee fell within the prohibited degrees of marriage.
In Krushna Kahali V. Narana Kahali , AIR 1991 Orissa 134 case, the Court held that adoption during the lifetime of a male issue was specifically prohibited even under the Hindu law prior to the enactment of the Hindu Adoption and Maintenance Act, 1956 and even if there was such a custom, the same was not considered to be valid, as custom cannot override express law and cannot overcome a prohibition. Such an adoption even if made under any custom prior to the enactment of the Hindu Adoption and Maintenance Act, 1956 would be contrary to the concept of adoption and the purpose thereof and hence would be unreasonable and invalid.
In Dhanraj V. Suraj Bai, 1975 SC 1103 case, the Court held that the scheme of the Act is not to make a child of 15 years of age or above fit to be taken in adoption. The exception however is made in favour of custom or usage to the contrary.
In Ramchandra Rao V. Bapurao, 1976 HLR 308 case the Court held that, in determining whether the custom permitting adoption of persons aged above 15 years exist in a community the Court must take into consideration the public opinion in the community. If such public opinion shows that such an adoption is permissible in the community and uniformly observed for a long time, the customary rule will get the force of law.
In Kochan Kani V. Mathevan Kani, AIR 1971 SC 1398 case, the Court held that in order to prove a custom, the party has to plead in specific terms as to what is the custom that he is relying on and he must prove the custom pleaded by him.
In Mariammal V. Gobindammal, AIR 1985 Mad. 5 at P.16 case the Court held that a daughter’s son cannot be adopted and it is invalid in law unless the custom of adopting a daughter’s son is proved satisfactorily among the community to which the parties belong.
Previous Topic: Who May give a Child in Adoption? (S. 9)
Next Topic: Restrictive Conditions for Adoption