Adoption Under Hindu Law

Adoption

Adoption is a legal process that allows someone to become the parent of a child, even though the parent and child are not related by blood. But the adoptive parents are the child’s parents. Through this childless parents can get the child and the needy children got the families. Children whose parentage is not known or are abandoned could get the love and security of a family. It is the way to provide the childless parents a child who could not give birth to their offspring. After adoption, all the rights and responsibilities are transferred from the natural parents to the adoptive parents.

Adoption in India is regulated by The Hindu Adoptions and Maintenance Act, 1956 under chapter II.

Acc. To Section 5 of this act, after the commencement of this act among Hindus adoption should be taken place in accordance with the provisions of this act, if otherwise takes place it should be void and nor it will create any kind of rights in the adoptive family and also not destroy the rights of the child in which he or she has born.

Essential conditions of valid adoption acc. to sec. 6

i. The person adopting has the capacity and right to take in adoption;

ii. The person giving in adoption must have the capacity to do so;

iii. The person adopted must be capable of being taken in adoption;

iv. The adoption is made in accordance with the other conditions mentioned in this chapter, which are explained below.

Other conditions for valid adoption acc. to sec. 11

i. If the adoption is of a son- the adoptive father or mother should not have a Hindu son, son’s son, or son’s son’s son living at the time of adoption; and

ii. If the adoption is of the daughter- the adoptive father or mother should not have Hindu daughter or son’s daughter living at the time of adoption; and

iii. If the adoption is by a male and the person to be adopted is a female, the adoptive father is at least 21 years older than the person to be adopted and vice-versa; and

iv. The same child should not be adopted by two or more persons; and

v. The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned with intent to transfer the child from family of its birth to the family of its adoption. [In case of abandoned child or child whose parentage is not known then from the family or place where he or she has been brought up].

Capacity of a male Hindu to take in adoption

Acc. To sec. 7, any male Hindu has the capacity to adopt a child if he is of sound mind and not minor. But if he has a wife living, then the consent of his wife is required for adoption. Although, he can adopt a child without his wife’s consent if:

a) the wife has renounced the world; or

b) she has ceased to be a Hindu; or

c) she is of unsound mind as declared by the court of competent jurisdiction.

If a person has more than one wife, then the consent of all the wives is necessary. (if he has married before the commencement of Hindu marriage act, 1955)

The consent of the wife should be obtained either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her. [Ghisalal vs. Dhapubai, AIR 2011 SC 644]

Capacity of a female Hindu to take in adoption

Acc. To sec. 8, any female Hindu has the capacity to adopt a child if she is of sound mind and not minor. But if she has a husband living, then the consent of her is required for adoption. Although she can adopt a child without her husband’s consent if:

a) the husband has renounced the world; or

b) she has ceased to be a Hindu; or

c) she is of unsound mind as declared by the court of competent jurisdiction.

During subsistence of a marriage a wife has no right to adopt, she only has to give consent in adoption if taken by her husband. [Malati Roy Chowdhury vs. Sudhindranath Majumdar, AIR 2007 Cal 4]

Who can give child in adoption

Acc. To sec. 9, Father, Mother or guardian of a child have the capacity to give the child in adoption.

Father or the mother have equal right to give the child for adoption with consent of other. But the condition of consent of other could be ignored if:

a) one of them has renounced the world; or

b) has ceased to be a Hindu; or

c) she is of unsound mind as declared by the court of competent jurisdiction.

Guardian can give the child in adoption with the permission of the court to any person including the guardian himself in case if:

i. both the father and mother are dead; or

ii. both have renounced the world; or

iii. both have abandoned the child; or

iv. both have been declared of unsound mind by the court of competent jurisdiction; or

v. where the parentage of the child is not known.

The court before granting permission to the guardian for adoption the court shall be satisfied that adoption shall be for the welfare of the child. The wish of the child is also considered while giving the permission for adoption having regard to the age and understanding of the child. The guardian seeking permission for the adoption should not be rewarded in any way for that adoption.

Guardian – a person having the care of the person or a child or of both his person and property and includes;

a) a guardian appointed by the will of the child’s father or mother; and

b) a guardian appointed or declared by as court.

Who may be adopted acc. To sec. 10

i. he or she is a Hindu; and

ii. he or she has not already been adopted; and

iii. he or she has not been married; and

iv. he or she should below the age of 15 years.

Point (iii) and (iv) could be ignored if there is custom or usage applicable to the parties which permits them to do so.

Effects of adoption

Acc. To sec. 12, from the date of adoption, all the ties and interests of adopted child from the family where he or she has born or brought up has been replaced and created with those who has adopted the child in the adoptive family. But the following things can’t be changed even after the adoption:

a) the adoptive child can’t marry a person with whom he or she could not marry before the adoption.

b) Property of the adopted child which vested in him before adoption shall continue to vest in him, also the obligations attached with the property will still remain.

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

On adoption, adopted child gets transplanted in adopting family with the same rights as that of natural born-son. Adopted child becomes coparcener in Joint Hindu Family property after serving all his ties with natural family. [Basavarajappa vs. Gurubasamma, (2005) 12 SCC 290]

The adopted child also acquires the caste of his adoptive parents and this caste will be treated as his caste by birth. [Khazan Singh vs. Union of India, AIR 1980 Del 60]

Acc. To sec. 13 the adoptive parents should not be deprived of their right to dispose of their properties only because of adoption.

Determination of mother or step-mother & father or step-father acc. to sec. 14

i. The wife of a Hindu male who adopts a child is deemed to be the adoptive mother.

ii. If the person has more than one wife and consent of all of them is required for the adoption, then the senior most in marriage shall be the mother and others to be step-mothers.

iii. Where a widower or a bachelor adopts a child, any woman with whom he marries subsequently, is the step-mother of the child and vice-versa in case of widow or unmarried woman.