In this article, we shall study the effects of adoption. In Dani Raiji V. Chandra Prava, 1971 Guj. 188 case, the Court held that the expression “effects of adoption” refers to all the Legal consequences flowing from an adoption.

Section 12: The Hindu Adoption and Maintenance Act, 1956:

Effect of adoptions-

An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.

Provided that-

(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;

(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

Section 12 of the Hindu Adoption and Maintenance Act, 1956 deals with the effects of valid adoption. The main object of this section is to modify the old Hindu Law which considered “doctrine of relation back”. The Act does away with the theory of relation back and confers on the child adopted a status equivalent to that of a natural-born child in the adoptive family only from the date of adoption.

In Kesharbai Jagannath Gujar V. State of Maharashtra, AIR 1981 Bom. 115 case, the Bombay High Court held that the adopted son is not deprived of the status given to him of a natural-born son as sec. 12 of HAMA, 1956 provides.

In Khazan Singh V. Union of India, AIR 1980 Delhi 60 the Court held that the adoptee is to be treated from the date of his adoption as if he were born in the adoptive family for all practical purposes. From that date, he has to forget that he belonged to another family except for the purposes mentioned in the section itself.

Under Section 12 on adoption, all the ties of the adopted child of the family of his birth shall be deemed to be severed and replaced by those of the adoptive family. Under Section 12 clause (a) only tie that he retains with his natural family is that he cannot marry any person in his natural family whom he could not have married before his adoption.

Clause (b) of Section 12 interjects to protect his rights in any property which stood vested before the adoption. But it does not mean that the adoptee will continue to have some interest in the estate of the natural family which he had acquired by birth even though he is legally deemed to be a member of the new family. Note that the clause protects only the property which had vested in the adopted child before the adoption.

In Har Chand V. Ranjeet, AIR 1986 P & H 259 case, ‘X’ had two sons, ‘A’ and ‘B’. He died leaving them behind. Subsequently, ‘B’ was given in adoption. ‘A’ claimed the entire properties of his father on the averment that on B’s adoption, he left the natural family and all his ties were severed. Rejecting this, the Punjab and Haryana High Court held that soon after the death of X, a share in the properties of his father got vested in him. Subsequently, on adoption, he cannot be divested of this property.

In Ramanna Gowda V. Shankarappa, AIR 1988 Kant.248  case, the High Court held that since on adoption the adopted child becomes a member of the adoptive family and all ties in his natural family are severed and all ties in the adoptive family are created, the child adopted by coparcener’s widow becomes a coparcener and therefore, becomes entitled to share in the joint family property as and when partition is effected. The court added that even when on the death of one of the two coparceners (when the coparcenary consists of only two coparceners), the property passes to the sole surviving coparcenary, on account of the presence of the widow of the coparcener the joint family does not cease to exist. When the widow of the coparcener adopts a son, the coparcenaries is revived and the adopted son becomes a coparcener and on the partition is entitled to a share. The court said that the question of vesting and divesting did not arise as the joint family continued to exist and the properties also continued to be the joint family property. In view of this, the adopted son also has a right to seek partition, and he along with his adoptive mother could take the same share which the deceased coparcener would have taken had he been alive. In Dharma Shamrao Agalawe V. Pandurang Miragu Agalawe AIR 1988 SC 845 case, the Supreme Court confirmed this view.

In Yarlagadda Nayudamma V. Govt. of A. P., AIR 1981 A. P. 19 case, the Court held that that notwithstanding adoption, a person in Mitakshara family has got a vested right even in the undivided property of his natural family which on adoption he continues to have a right over it.

As per Clause (c) of Section 12 of the Act, an adopted child cannot have the right to divest any person of any estate which had vested in him or her before adoption. Thus, when a person, who was not a coparcener, adopts a son, his adopted son does not divest him of any property. All his properties continue to vest in him. His adopted son acquires no interest whatever in his properties. If he dies intestate, his adopted son along with other heirs will succeed to his property.

In Joti Dadu Navale V. Manukabai, AIR 1988 Bom. 348  case where a Hindu who had adopted a son, died, leaving behind a daughter and adopted son, both would inherit the property of their father in equal shares.

In Dinaji & others V. Daddi & others, AIR 1990 SC 1153  case, it was held that, Smt. Yashoda Bai who was the limited owner of the property after the death of the husband and after Hindu Succession Act came in to force, could become an absolute owner and therefore the property of her husband vested in her and therefore merely by adopting a child she could not be deprived of any of her rights in the property. The adopted child could get the rights for which he is entitled after her death as is clear from the scheme of Section 12 Clause (c) of the Act.

Previous Topic: Restrictive Conditions for Adoption (S. 11)

Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Effects of Adoption

The post Effects of Adoption appeared first on The Fact Factor.

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.

Previous Topic: Who Can be Adopted? (S. 10)

Next Topic: Effects of Adoption (S. 12)

Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Restrictive Conditions for Adoption

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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

Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Who can be Adopted?

The post Who can be Adopted? (S. 10) appeared first on The Fact Factor.

In this article, we shall study the capacity of a person to give child in adoption. Section 9 of the Hindu Adoptions and Maintenance Act, 1956 deals with it.

Section 9: The Hindu Adoption and Maintenance Act, 1956:

Persons capable of giving in adoption-

(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.

By Section 9(1) of the Act, only the father or mother or the guardian of a child has the capacity to give the child in adoption. The term ‘father’ means a biological father and does not include an adoptive father or stepfather. The expression “mother” means the biological mother and does not include an adoptive mother and stepmother.

Section 9 does not expressly state that the father, mother or guardian should be a Hindu in order that they may have the capacity to give the child in adoption. While section 7 and section 8 which deal with the capacity to take in adoption expressly state that the father or the mother should be a Hindu by using the expression “Male Hindu” and “Female Hindu”. But the preamble says that the Act is one relating to adoption among Hindus and not merely of Hindus. It would, therefore, appear that all the parties connected with the transaction of adoption should be Hindus. Similarly for a guardian, it is not stated that he should be a Hindu. A guardian appointed by a court for a Hindu minor need not necessarily be a Hindu. But the preamble says that the Act is one relating to adoption among Hindus and not merely of Hindus. Hence it is expected that the guardian is Hindu.

Father’s Capacity to Give in Adoption:

Section 9: The Hindu Adoption and Maintenance Act, 1956:

(2) Subject to the provisions of sub-section (3) and sub-section (4), the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

The term ‘father’ means a biological father and does not include an adoptive father or step-father.  The father of a legitimate child can give the child in adoption. But he (father) must be major and of sound mind. But if a child’s mother is alive, he must seek her consent for giving the child in adoption. The adoption without the consent of the mother will be invalid. The consent of the mother can be dispensed within the following three conditions:-

1. If she has ceased to be Hindu;
2. (b) If she has finally and completely renounced the world;
3. (c) If she has been declared of unsound mind by a court of competent jurisdiction

If the father is suffering from any disability given in Section 9 then he remains no longer capable of giving the child in adoption and in this case the mother can give the child in adoption.

If the mother of the child is living away under a decree of judicial separation or has been divorced by her husband, her consent cannot be dispensed with.

In Omprakash v. Des Ram 2000(1) HLR 102 P & H case, the Court held that when the mother was also present at the ceremony of adoption, the adoption was held to be valid.

Section 9(2) says that the consent of mother can be dispensed if the mother has ceased to be Hindu If on conversion mother loses all her rights over her child it may tantamount to negation of Fundamental Right guaranteed under Art. 25 of the Constitution.

Mother’s Capacity to Give In Adoption:

Section 9: The Hindu Adoption and Maintenance Act, 1956:

(3) The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

So long as the father is alive or is not disqualified in any manner, the mother cannot validly give her child in adoption. The expression “mother” means the biological mother and does not include an adoptive mother and stepmother. The mother who wants to give the child in adoption should not suffer from any of the disabilities given under Section 9 of the Act.

The mother can give the child in adoption only when her husband is either:
(i) Dead; or
(ii) if living; he

(a) has completely and finally renounced the world, or
(b) has ceased to be a Hindu, or
(c) has been declared by a court of competent jurisdiction to be of unsound mind.

In Dhanraj v. Suraj Bai 1975 SC 1103 case, the Court held that if the child is given in adoption by a stepmother, the adoption is invalid.

In Ram Sakhi Kuer v. Daroga Prasad Singh AIR 1981 Patna 204 case, the Court held that after remarriage, the widow ceases to be the mother of the son and as such, she cannot give in adoption a child who was by her first husband. The Court further observed, when a widow remarries, she loses her status as a mother and dies a civil death (as per Sec.2 of the Hindu Widow’s Remarriage Act, 1856) so far as the rights and interests in the family of the previous husband are concerned. By giving in adoption, such a son from her previous husband, she deprives her previous husband of the spiritual benefits to which her previous husband was entitled from a son.

Capacity to Give a Child who is above the age of 15 years:

In Dhanraj v. Suraj Bai 1975 SC 1103 case, the Court opined that under Section 10(iv) of the Act, a person above the age of fifteen years cannot be taken in adoption unless there is custom or usage which permits such persons to be taken in adoption.

Under Section 9(3) the mother acquires the right to give the child in adoption if the father has ceased to be a Hindu. This would presuppose that the father loses his right to give in adoption, the moment he ceases to be a Hindu. Again the mother’s consent to the father giving the child in adoption is not necessary if she has ceased to be a Hindu. In other words, she loses her right even to give her consent the moment. As they are exercising right under the Act, they are Hindu at the time of giving adoption.

Guardian’s Capacity to Give Child in Adoption:

Section 9: The Hindu Adoption and Maintenance Act, 1956:

(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.

The term “Guardian” includes a testamentary guardian, guardian appointed or declared by a court. A guardian cannot give the child in adoption without the prior permission of the Court. A guardian has the capacity to give the child in adoption under the following circumstances:-

1. If both the parents of the child are dead;
2. If the parents have finally and completely renounced the world;
3. The parents have been judicially declared of unsound mind;
4. If the parents have abandoned the child;
5. If the parentage of the child is unknown, e.g. in case of a foundling or refugee child;

Court’s Satisfaction:

Section 9: The Hindu Adoption and Maintenance Act, 1956:

(5) Before granting permission to a guardian under sub-section the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.

The object of sub-section (5) is to prohibit trafficking in children and ensure the welfare and loving care of the child to be given in adoption. Section 17 prohibits any person from making or receiving or agreeing to make or receive any payment or other reward in consideration of an adoption of any person. Section 9(5) however permits the court to sanction some payments or reward in appropriate cases.

According to Section 9(5) the court must satisfy itself that:

1. the adoption will be for the welfare of the child;
2. the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction while satisfying itself that the adoption will be for the welfare of the child.

The Court will also consider the following things before granting adoption:

1. If the child is of sufficient maturity and understanding the wishes of the child should also be consulted before granting permission by the court. There is no provision in the Act regarding consultation and knowing the wishes of the child to be given in adoption.
2. The Court will consider the physical and moral being of the child and the financial position and Social status of the proposed adopter.
3. The court will also weigh the pros and cons of two places – where the child is and where the child shall be taken.

In Shankar Kumar Das v. Supt. Jawaharlal Nehru Memorial Hospital Kalyani, AIR 1996 Cal. 264 case, the Court held that Subsection (5) postulates that an application for obtaining the permission of the court for giving the child in Adoption is required to be filed by the guardian and not by the persons who are willing to take the child in adoption. It was held that under the law, the juvenile justice Board is the guardian of the abandoned children. It is the duty of the board to look after the care and comfort of the abandoned child, although the said child may remain in the custody of some other person. A statutory duty is cast upon the juvenile board to visit the child from time to time and see that the persons having custody of the child are looking after his welfare in a proper manner. Application for the adoption of such a child can be filed by the board only, the court can permit adoption to a willing spouse.

Jurisdiction of Court:

Section 9: The Hindu Adoption and Maintenance Act, 1956:
Explanation:

(ii) “court” means the city or civil court or a district court within the local limits or whose jurisdiction the child to be adopted ordinarily resides.

Explanation (ii) attached to Section 9 gives the list of Courts which has jurisdiction in Adoption matters. The explanation says that jurisdiction of a matter related with adoptions lies with the city or civil court or a district court within the local limits of whose jurisdiction the child to be adopted. The family court has no jurisdiction to grant permission for the adoption of a child in accordance with the provisions of section 9 of the Hindu Adoptions and Maintenance Act.

Previous Topic: Adoption by a Hindu Female (S. 8)

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Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Who May give a Child in Adoption?

The post Who May give a Child in Adoption? (S. 9) appeared first on The Fact Factor.

Section 8 of the Hindu Adoption and Maintenance Act, 1956 deals with the adoption by Hindu female.

Section 8: The Hindu Adoption and Maintenance Act, 1956:

Capacity of a female Hindu to take in adoption-

Any female Hindu-

(a) who is of sound mind,

(b) who is not a minor, and

(c) who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind,

has the capacity to take a son or daughter in adoption.

The act has empowered the Hindu female to adopt to herself in her own right. This right is not available to a married woman whose marriage is still subsisting.

Adoption by Hindu Female (Unmarried)

Under this Section, a Hindu female who is not married can take a boy or girl or both in adoption subject to Section 11(IV). If she subsequently gets married her adopted child will be treated as step-son or step-daughter of her husband. However, she will continue to be the adoptive mother of the adopted child.

There is no bar against the husband making an adoption provided his wife gives consent. The wife may not give consent because she is already having a son/daughter, but if she gives consent the adoption cannot be invalid on by reason of the existence of the wife’s son or daughter. Now there are two types of children in the family. The child adopted by the Hindu female will continue to be the child of Hindu female only. However, the child adopted by her husband after marriage with the consent of the wife will be the adopted child of both the spouses. This distinction becomes necessary when the husband and wife die leaving behind properties and the question of succession to properties arises.

In Narinderjit Kaur v. Union of India, AIR 1997 P&H 280  case, the Court held that where a child was given in adoption willingly by natural parents and was taken in adoption by adoptive mother through her attorney, it was held to be a valid adoption. It was also held that the subsequent marriage of adoptive mother does not invalidate adoption.

Adoption by Hindu Female (Married)

A married woman cannot adopt at all during the subsistence of her marriage even with the consent of her husband. A married woman may adopt in the following circumstances:

1. when her husband has completely and finally renounced the world
2. the husband has ceased to be a Hindu;
3. the husband has been declared by a court of competent jurisdiction to be of unsound mind.

There is gender bias against a married woman in Section 8. As per SEction 7 married man has been given permission to adopt with consent of wife while there is no such provision by which a married woman can adopt even with the consent of her husband.

In Malti Roy Chowdhury v. Sudhindranath Majumdar, AIR 2007 Cal 4  case, the Court held that Malti has adopted the child with the consent of her husband. Under the Hindu Adoption and Maintenance Act, it is invalid adoption. Further Court observed that while there is no denying the fact that the Hindu Adoption and Maintenance Act, has considerably improved the position of women with respect to their right to adopt, there still exists a bias based on gender as well as marital status.

In Lalitha V. Union of India, A.I.R 1991 Karnataka 186 case, the Court held that Sec 8 of the Hindu Adoption and Maintenance Act, 1956 conferring the right to adopt covers women who are single in status. A married woman stands outside that class. The right of a woman in married status is covered by Sec.7 of the Act. As a woman in married status falls into a different class she cannot complain of discrimination or violation of Art. 14 of the Constitution.

In Dashrath Ramchandra Khairnar (1976)79 Bom. L.R. 426  case, the Court held that even though the husband had, by executing an agreement, consented to his wife’ adopting a son, yet the adoption was held to be invalid.

From the above explanation we can conclude that If both husband and wife are ready to adopt with each others consent and if valid adoption is to be made, it must be made by her husband with her consent.

Adoption by a Wife of Void and Voidable Marriage:

If the marriage is void under Section 11 of the Hindu Marriage Act, the wife is entitled to adopt without the consent of her husband. Her position is the same as that of an unmarried woman.

While the wife of the voidable marriage is a lawful wife unless and until the marriage is avoided and so long as the marriage subsists she cannot make an adoption unless the husband is disqualified. The adoption by the wife of a voidable marriage will be null and void.

Adoption by a Divorced Wife:

After divorce the wife does not remain to be a wife at all. She acquires independent status. She has the capacity to take a child in adoption, if otherwise eligible. Her position is like that of an unmarried female.

Adoption by Widow:

After the passing of the Hindu Adoption and Maintenance Act, 1956, the position of the window has changed. Formerly, a widow could not adopt without the consent and express authority of her deceased, husband or in some cases without the consent of her Sapindus. But the Act removes any such bar to an adoption by a widow. Moreover, formerly a woman could adopt only to her husband but now she can adopt for herself. Now she is the adoptive mother of the child in her own right. The theory of ‘relation back’ has been expressly abolished.

In Sawan Ram v. Kalawati, AIR 1967 SC 1761 case the Court held that if a son is adopted by a female Hindu, who is married and whose husband is dead, or has completely and finally renounced the world, or has been declared by a Court of competent jurisdiction to be of unsound mind, the son adopted by the Hindu female particularly the Hindu widow would be deemed to be the son of her late husband also.

In Chandrasekhra v. Kulandaivalu, AIR 1963 SC 185  case, the Court held that assent of Sapindas is necessary because of supposed incapacity of widow for independent action, and not by reason of the effect of adoption upon proprietary rights of coparceners or reversioners property considerations are no more paramount in the case of an undivided family than in case of divided family.

In K. Laxmi Narayan Subudhi V. K. Padmanav, A.I.R 1973 Orissa 3 case, the main question raised was whether the widow of a Hindu could adopt a son while her own son died leaving behind his widow. As per traditional Hindu law, such a widow is disqualified from making an adoption on the ground that no sooner the son left behind his own widow, the power of the senior widow to take a son in adoption comes to an end. Mishra. J. rejected this view and held that there is no dispute that the widow has a statutory right to adopt. Even if the contention that in law the capacity of the widow to adopt to her husband was extinguished under the old law, by virtue of the right conferred under the Adoption Act, she was entitled to make the adoption.

Widow’s Rights to Adopt in the Presence of Daughter-in-Law:

In Ashabai Kate v Vithal Bhika Nade, AIR 1990 SC 670 case, a father and son died in quick succession both leaving behind their widows. The widowed daughter-in-law delivered a posthumous female child and remarried. The widowed mother-in-law adopted a son soon after the remarriage of the daughter-in-law, but the same was held not to be valid. According to the court, in the presence of the daughter-in-law, the widowed mother-in-law had no right to adopt and this right did not revive even on the daughter-in-law’s remarriage.

In Gurunath v Kamlabai, AIR 1955 SC 206  case, the Court opined that ‘The interposition of a grandson or the son’s widow, competent to continue the line by adoption brings the mother’s power of adoption to an end.’

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Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > The Adoption by a Hindu Female

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Section 7 of the Hindu Adoption and Maintenance Act, 1956 deals with the adoption by Hindu male.

Section 7: The Hindu Adoption and Maintenance Act, 1956:

Capacity of a male Hindu to take in adoption-

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

Explanation-

If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.

Who can Adopt?

According to Section 7 of the Act, the adopter must be Hindu male. He may be bachelor, widower, divorcee or a married person provided he is not a minor. However, if a male is married consent of the wife is a must. There is no maximum age of adoption.

The Soundness of Mind:

According to this Section 7 of the Act, a Hindu male who wants to adopt a child must be of sound mind. It is obvious that an idiot or lunatic cannot adopt. Unsoundness of mind may be due to sickness, old age or on account of any mental disease.

The test of unsoundness of mind is whether a person is incapable of understanding the nature of the Act and its implications. A mere weakness of mind is not sufficient. A person challenging the adoption on this ground will have to prove the same. The burden of proof may, however, shift if shown for instance that the adoptive father had, on inquisition, been found to have been a lunatic. It is the time of adoption that is material to judge the soundness of mind of a person adopting.

In Mandakini v. 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 Gopi v. Madan, AIR 1970 Raj. 190 case, the Court held that unsoundness of mind relates to a general condition of mind. No adjudication of Insanity by the court is necessary. Any condition of insanity including epilepsy, idiocy, and lunacy will come under unsoundness of mind.

In Baba Kant v. Kestenpuras 6 Berg SR 219 case, the Court held that adoption by a person in a disturbed state of mind, arising out of serious illness was not valid.

To Whom He Can Adopt?

The adopter has a right to adopt a son or a daughter. This does not mean that a person cannot adopt both a son and a daughter. While section 11 (i) and 11(ii) preclude a person from adopting two sons or daughter.

Consent of Wife for Adoption by Hindu Male (Married):

As per Section 7 of the Act, the wife’s consent must be obtained prior to or at the time of adoption but in any case, it cannot be subsequent to an act of adoption. The proviso lays down consent as a condition precedent to an act of adoption. The subsequent consent of the wife cannot validate it. The consent of the wife must be free consent. If the consent has been obtained by force, fraud or undue influence it is not a consent at all. If the wife has given consent freely, she has no right to withdraw it after adoption and the adoption will be valid. Here the expression “wife” means a lawfully wedded wife.

• If the marriage of the male is null and void, the wife has no legal status of wife and there is no need for obtaining her consent.
• In case of a voidable marriage falling under Section 12 of the Hindu Marriage Act, the wife of such a marriage will be considered a wife, as long as marriage has not been annulled by the decree of a court, and the absence of her consent for adoption would invalidate adoption.
• If there is a decree of judicial separation between the parties still the consent of wife would be necessary.
• If there has been a divorce between the spouses, the consent of the divorced wife is not required.
• If a person has more than one wives, the consent of all the wives is necessary. (This provision is there because polygamy was allowed in old Hindu law.
• If a male Hindu marries a woman of another religion, e.g. a Christian, or a Mohammedan, Parsi or Jew or makes a marriage under the special marriage 1954, the married woman has the status of a wife. The consent of such wives should also necessary for a valid adoption.
• A wife, though a minor, is nevertheless a wife. Though the wife is minor she is incapable of giving consent, but her consent is necessary for a valid adoption by the husband and so the husband cannot at all adopt when the wife is minor. A minor female herself can’t adopt, but if married, her consent is must far adoption by her husband.

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 Mool Chand Vs. Amritabai, 1976 HLR 661 case the Court held that the consent of the wife may be express or it may be implied. If the wife was present and took part in the adoption ceremony and gave present to the adoption it was held that consent could be inferred from the circumstances.

In Bholoo Ram v. Ram Lal, AIR 1989 MP 198 case, the Court held that the consent of a wife who is living separately or leading the life of a prostitute cannot be dispensed with.

In Sawan Ram Vs. Kalawati, AIR 1967 SC 1761 case, the Supreme Court held that where a husband adopts under this Act, with the consent of his wife, the actual adoption would be by the husband but the adoption is not only to himself but also to his wife. In the same manner, it has been said by the Supreme Court that if a son is adopted by a female Hindu, who is married and whose husband is dead, or has completely and finally renounced the world, or has been declared by a Court of competent jurisdiction to be of unsound mind, the son adopted by the Hindu female particularly the Hindu widow would be deemed to be the son of her late husband also.

Wife’s Consent When Not Necessary:

The provisions of Section 7 refer to certain circumstances when wife’s consent is not essential for the validity of the adoption. It is open, to a male Hindu to take a child in adoption even without his wife’s consent. In the following three circumstances.

Wife has completely and finally renounced the world:

The actual definition of renounciation of the world is not given in the Act. In Kishnaji v. Hanumareddi 1934 Bom. 385 case, the Court held that Renunciation amounts to civil death and it must be absolute abandonment of all property and complete and final withdrawal from all worldly affairs.

Wife ceases to be Hindu:

For conversion, she must embrace another religion. Not performing Hindu rituals doesn’t mean conversion. The burden of proof that the wife has ceased to be Hindu by converting to a non-Hindu religion lies on the husband. It is he who is seeking immunity from taking the consent of the wife, therefore, he is required to prove that the wife has converted to another religion thus, he was not obliged to take her consent.

Unsoundness of Mind

A wife’s consent is not necessary if she has been declared to be unsound mind by a court of competent jurisdiction. The declaration of the court must be prior to the adoption. If the court declares the wife as of unsound mind subsequent to the adoption, the adoption made without her consent would be invalid.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > The Adoption by a Hindu Male

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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.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > The Conditions for Valid Adoption

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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.

In India each community has its own family law, though its members may be domiciled, settled or residing in any part of the country, they are governed by the same personal law which applied to their community. In Modem Hindu Law, the schools e.g. Dayabhaga, Mitakshara, etc. have still relevance in respect of un-codified part of Hindu Law particularly joint family and partition. As to the marriage, matrimonial causes, minority, guardianship, Adoptions, Maintenance and succession, Hindu are uniformly governed by the one single system of law i.e. codified part of Hindu Law which includes the Hindu Marriage Act, 1955. The Hindu Minority and Guardianship Act, 1956, the Hindu Adoption and Maintenance Act, 1956 and the Hindu Succession Act, 1956.

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.

Adoption in India:

Adoption in Hindus (Hindus, Buddhists, Sikhs, and Jains) governed by the Hindu Adoption and Maintenance Act, 1956. In India there is no separate adoption laws for Muslims, Christians, and Parsis, so they have to approach the court under the Guardians and Wards Act, 1890 for legal adoption.

In India only legal adoption is recognized and valid, Hence we have to understand the meaning of the phrase “Legal Adoption” first. According to section 2(aa) of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, “adoption means the process through which the adopted child is permanently separated from his biological parent and becomes the legitimate child of his adoptive parents with all right, privileges and responsibility that are attached to the relationship”.

In India, an Indian whether he is married or single, Non-Resident Indian (NRI), or a person belonging to any nationality (foreigner) may adopt a child. The guidelines and documentation process for each group of adoptive parents may differ.

The Hindu Adoption and Maintenance Act, 1956:

Objectives of the Act:

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. Thus the main objective was codifying the rules pertaining to Adoptions and Maintenance among the Hindus.

In Ramaswamy v. Baghyammal AIR 1967 M-457 case, the Court opined that The Hindu Adoption and Maintenance Act, 1956, amended and codified, is exhaustive of the subject to the extent to which it has dealt with it.

Enactment of the Act:

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. As no date was fixed the commencement of the Act came into force on the day when it received the assent of the President i.e. 21.12.1956.

The Extent of the Act:

As Section 1 Sub Section (2) lays down that the Act extends to the whole of India except the State of Jammu and Kashmir. The exception is made in view of Article 370 of the Constitution.

Due to presidential order on 5th August 2019 abrogation of Article 370 of the constitution has taken place and both houses of Parliament has approved it. All the Central Acts are applicable to the Union territories of Jammu and Kashmir, and Ladakh.

It has no extra-territorial operation.

On 20 December 1961, the territories of Goa Daman and Diu were included in the Union territories. But as Section 5(1) of the Goa, Daman, and Diu(Administration) Act 1 of 62, provides that all laws in enforce immediately before 20.12.61 in those territories shall continue to be in force, it would appear that this Act is not applicable in those territories. Though Section 6 of the Act provides that the Central Government may by notification extend any enactment with such restrictions and modification as it things fit to Goa, Daman and Diu and the President issued Regulation 12/1962 applying several Central Acts and some State Acts to Goa, Daman, and Diu, this Act is not one of them, the position was the same in regard to Dadra and Nagar Haveli. However, the act has been extended to Pondicherry by Pondicherry (Extension of Laws) Act, 26/68 with the addition of Section 2-A which proves that the Act does not apply to ‘Renoncants’ of Pondicherry. However, the act has now been extended to the Union Territories of Dadra and Nagar Haveli and Pondicherry by Registration 6 of 1963 (w.e.f. 1.7.65) and Act 26 of 1968 (w.e.f. 24.5.68).

Next Topic: Applicability of the Act (S. 2)

Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Introduction

The post Introduction to the Hindu Adoptions and Maintenance Act, 1956 (S. 1) appeared first on The Fact Factor.

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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Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > The Concept of Adoption

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Population explosion is a social problem and it is deeply rooted in society. So efforts must be done to remove the social evils in the country. Population control is a way in which the rate of population growth is changed, which has been made possible by limiting birth rates. Population control can be carried out by social, economic, physical and surgical methods. As human populations grow, human demands for resources like water, land, trees, and energy also grow. It affects the environment. Hence population control is important. Birth control measures should be used under the guidance of Family Planning Centres, qualified health professionals. Family Planning Centres provide these facilities free of cost.

Social Measures for Population Control:

Minimum age of Marriage:

As fertility depends on the age of marriage. Child marriage contributes to higher total fertility as women marrying earlier tend to both have children earlier and bear more children over their lifetime than if they had married later.  Demographers explain that postponement of female marriage age from 18 years to 20 or 22 years would bring down the birth rate by 20 to 30 percent.  So the minimum age of marriage should be raised. In India minimum age for marriage is 21 years for men and 18 years for women has been fixed by law. This law should be firmly implemented and people should also be made aware of this through publicity. As far as possible, marriage should be solemnized at the age of 30 years. This will reduce the period of reproduction among the females bringing down the birth rate.

Gender Equality, Equity, and Empowerment of Women:

By achieving equality and equity between men and women, and eliminating all practices that discriminate against women including the girl child, the TFR can be brought down. Here men should play responsible roles. As more and more women join career jobs, they tend to be occupied by work. This acts as an alternative to bringing up children. A woman having a career might find children a burden since they interfere with her work. 

Raising the Status of Women:

There is still discrimination to the women. Progress toward gender equity is hampered by long-held traditions that define women’s roles narrowly as childbearers and unpaid workers in the home and fields. They are confined to four walls of house.  Some societies limit girls’ access to formal education, thereby limiting future employment and economic freedomSo women should be given opportunities to develop socially and economically.

Spread of Education:

The spread of education changes the outlook of people. People, particularly those in the reproductive age group, should be educated about the advantages of a small family and ill-effects of large families and overpopulation.  Girls’ education often ends with early marriage. Investments in women’s education have proven especially effective at lowering fertility rates since better-educated women tend to marry later and have fewer, healthier children.  Education on family planning can be made compulsory for all through the school curriculum. Educated men prefer to delay marriage and adopt small family norms. Educated women are health conscious and avoid frequent pregnancies and thus help in lowering the birth rate.

Adoption:

Some parents do not have any child, despite costly medical treatment. It is advisable that they should adopt orphan children. It will be beneficial to orphan children and childless couples. The couple Receives the joy and blessing of adding a child to their family. They can fulfill dreams of raising a child.

Change in Social Outlook:

The social outlook of people should undergo a change. Marriage should no longer be considered a social binding.  It is a social expectation to marry and have children to carry on the lineage. Similarly, the biggest problem with infertility in India is the tremendous social stigma it carries. Issueless women should not be looked down upon.

Social Security:

In communities where children are regarded as security in old age, the introduction of pension schemes, insurance schemes and incomes for old people can substitute as security for old age. More and more people should be covered under social security schemes. So that they do not depend upon others in the event of old age, sickness, unemployment, etc. with these facilities they will have no desire for more children.

Economic Measures:

More employment opportunities:

Generally, in rural areas, there is disguised unemployment. So efforts should be made to migrate unemployed persons from rural area to urban area. It is found that the people in urban areas have low birth rate than those living in rural areas. This step can check population growth.

Standard of Living:

Improved standard of living acts as a deterrent to the large family norm. In order to maintain their higher standard of living people prefer to have a small family. Increased standard of living results in an increased demand for durable goods such as electronic goods, houses and furniture (instead of children). There is also an increased demand for leisure activities such as holiday outings, films and theatre shows, sports, and music. Well-off people tend to stay away from homes for longer hours compared to poor people. Increased incomes mean better living standards that people will usually guard against loss. In the rural economy, it can be achieved by the development of agriculture and industry. A large number of people will get employment. When their income is increased, the standard of living would increase and adopt small family norms.

Financial Hardship:

Measures aimed at imposing a greater burden on those with more children can be introduced. Those with children could be taxed according to the number of children they have. Subsidies and tax reliefs could be done away with. Maternity or paternity leaves could be denied. In addition, higher school fees, medical care fees, etc. could be imposed on those with more than the stated number of children.

Balanced Economic Growth:

It can be done through decentralization of industries and other economic activities. This ensures better regional income distribution and removes pressure from a few urban centers. As is the case with increased incomes, there will be a tendency for family sizes to shrink.

Other Measures:

Publicity of Importance of Family Planning:

The communication media like T.V., radio, newspaper, and social media are the good means to propagate the benefits of the planned family to the uneducated and illiterate persons especially in the rural and backward areas of the country.

The campaign run by the Government of India “Hum Do Humare Do” meaning we two and our two siblings (family consisting of husband, wife and two children) was successful in urban areas. Another campaign was “Chhota Parivar, Sukhi Parivar” meaning small family, happy family. The campaign “Beti Bachao Beti Padhao” meaning save the girl child and let her educate improved the sex ratio in favour of girls even in rural areas.

Self Control and Family Planning:

According to some experts, self-control regarding sex is one of the powerful methods to control the population. It is an ideal and healthy approach and people should be provided to follow. It helps in reducing the birth rate.  By taking preventive measures, people can regulate the birth rate. The birth rate will likely to fall if there are different recreational facilities like cinema; theatre, sports, and dance, etc. are available to the people.

Enacting Child Labour Laws:

Generally, poor people regard children as suppliers of labour. Stringent laws can be enforced to restrict the minimum age for child employment. Hence the false belief that more children result in more family income will get abolished.

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