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Adoption[1]

Table of Contents

QUESTION BANK

Q.1 What is the effect of adoption?

Q.2 State the effects of the adoption of a child concerning his natural family and adoption family.

Q3 What are the essentials of a valid adoption, and what are the rights of an adopted child?

Q.4. Discuss the capacity of male Hindus and Female Hindus to take a child in adoption.

Q.5. What is adoption? Explain its nature and motive of it.

Q.6. Explain the rules regarding adoption under Hindu Adoption and Maintenance Act, 1956.

Q.7 Explain various requirements of valid adoption.

SYNOPSIS

Meaning of adoption-
Object of adoption-

To offer final rite-
To carry on family name and lineage-

III. Hindu Adoption and Maintenance Act. 1956-

Essentials or Requisites of valid adoption (S. 6 to 11)-
Person capable and having the right can adopt (S. 7 and 8)-
a) Capacity of a male Hindu to take in adoption (S. 7)-
b) Capacity of a female Hindu to take in adoption (S. 8)-

Changes brought by the Act-

Person capable of giving a child in adoption (S. 9)-

(a) Father’s power to give the child in adoption-

(b) Mother’s power to give the child in adoption-

Changes brought by the Act-

According to old shastras Hindu law-

3) Capacity of a child to be adopted (S. 10)-

Changes brought by the Act-

According to old shastric Hindu law-

4) Other conditions for valid adoption (S. 11)-

Changes brought by the Act-

According to old shastric Hindu law-

Effects of adoption (S. 12 to S. 17)-

1) Deemed to be a natural child (S. 12)-

2) Right of adoptive parents to dispose of their property (S. 13)-

3) Determination of adoptive mother in some instances (S. 14)-

4) Valid adoption not to be cancelled (S. 15)-

5) Presumption as to registered documents relating to adoption (S. 16)-

6) Prohibition of particular payment (S. 17)-

I. Meaning of Adoption-

Hindu law has recognised adoption since ancient times. To ‘adopt’ means “to take something on as your own.”[2]. According to Manu, “adoption is taking of a son, as a substitute for the failure of a male issue”. In other words, adoption is the process of adopting a child.

An ‘adoption’ is the transplantation of a son from the family in which he is born into another family by way of a gift made by his natural parents to the adopting parents.

II. Object of adoption-

Under Hindu Law, the son has been assigned utmost importance. Much importance is given to a male child. The reason behind the adoption is religious. It has two reasons viz.

(i) To offer final rite[3]–

Hindus believe that one who dies without having a son would go to hell. Therefore, the son could only save the father from hell by offering a funeral cake and a libation of water. It is a religious reason.

(ii) To carry on family name and lineage[4]–

To carry on the family name and lineage is another reason. The name of the adopter’s family is perpetuated with the adopted son. It is considered a secular reason.

Some ancillary reasons are to get protection in old age, to protect property from falling into an outsider’s hands, etc.

III. Hindu Adoption and Maintenance Act. 1956-

The Hindu Adoption and Maintenance Act came into force in 1956. The Act[5] has codified[6] the law of adoption, which was scattered in ancient Hindu scriptures. Moreover, it modified the ancient Hindu law prevalent in the scriptures. Therefore, after the Act came into existence, parties giving and taking in adoption must follow the provisions of the Act; any contravention of the provision makes the adoption void (S. 5). Thus, the section provides for the overriding effect of the Act over Shastri or ancient law on adoption.

The Act applies to all Hindus living within the territory of India except the State of Jammu and Kashmir. It also applies to Buddhist, Jain, and Sikh religions.

Personal law of Muslims, Christians, Parsis and Jews does not recognise adoption. However, they can be adopted under the Guardian and Wards Act with some limitations. 1890.

We will discuss the changes the Hindu Adoption and Maintenance Act brought about in appropriate places. 1956 in ancient Hindu law of adoption.

IV. Essentials or Requisites of valid adoption (S. 6 to 11)-

As per S. 6, the following are the requirements or essentials of valid adoption, viz.

1. A person capable and having the right can adopt (S. 7 and 8)-

a) Capacity of a male Hindu to take in adoption (S. 7)-

The section lays down the capacity of a male Hindu to adopt. It states that any male Hindu who is (i) of sound mind and (ii) is not a minor can take a son or a daughter in adoption.

If he has a wife or wives living, he shall not adopt except with her/their consent. However, consent of the wife or all of the wives is not necessary if the wife has (i) entirely and finally renounced the world[7], (ii) has ceased to be a Hindu[8], or (iii) has been declared by a court of competent jurisdiction to be of unsound mind.

The word “wives” is mentioned in the Act, perhaps because, at that time, polygamy was not prohibited.

In Sarbajeet Kabir v. Gurumal Kaur[9]

The Court held that- adoption by a male Hindu without the wife’s consent is void.

Changes brought by the Act-

According to old Shastri Hindu law, only sons could be adopted. It was sufficient if the adopting father had attained the age of discretion (which may be below 18). However, under present law, both son and daughter can be adopted by a man who has completed 18 years of age. In the old law, the consent of a wife or wives was not necessary; however, present law has made it mandatory.

b) Capacity of a female Hindu to take in adoption (S. 8)-

The section lays down a female Hindu’s capacity to adopt. Any female Hindu (i) Who is of sound mind, (ii) who is not a minor, and (iii) who is not married, or if married,-

(1) whose marriage has been dissolved, or (2) whose husband is dead, or (3) has completely and finally renounced the world, or (4) has ceased to be a Hindu, or (5) has been declared by a court of competent jurisdiction to be of unsound mind,

-can take a son or daughter for adoption.

Changes brought by the Act-

According to old Shastri Hindu law-

(i) A female who has her husband alive could not adopt during her husband’s lifetime except with his express consent; however, present law does not require the consent of the husband in the above circumstances.

(ii) A widow could adopt only with her husband’s authority (i.e., the authority given for adoption before his death by the husband). However, no such authority is needed for a widow to adopt under the present Act.

(iii) an unmarried female could not adopt; however, under the present Act, she can adopt.

2. Person capable of giving a child in adoption (S. 9)-

The father, mother, and guardian have the power to give the child up for adoption.

(a) Father’s power to give a child in adoption-

The father cannot give the child up for adoption without the consent of the mother of the child. However, the consent of a mother is not required if-

(i) she has finally and completely renounced the world, (ii) if she has ceased to be a Hindu, or (iii) if she has been judicially declared to be of unsound mind. The consent of the mother is necessary even though she is divorced. In the absence of the mother’s content, adoption becomes void.

(b) Mother’s power to give a child in adoption-

The mother cannot give the child in adoption except if the father is (i) dead, (ii) has completely and finally renounced the world, (iii) has ceased to be a Hindu, or (iv) has been declared by a court of competent jurisdiction to be of unsound mind.

However, the adoptive father and mother cannot further give the adopted child in adoption. Similarly, “mother” does not include stepmother.

(c) Guardian’s power to give a child (ward) in adoption-

The Guardian of a child has the power and capacity to give a child in adoption. The ‘Guarding’ having the capacity to give a child in adoption is defined as a person having the care of (i) the person of a child, or (ii) 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 a court.

In Deen Dayal v. Sanjeev Kumar[10]

Facts- The mother was neither party nor was her consent adopted on the adoption deed.

Court Held– the adoption is void.

Changes brought by the Act-

According to old shastric Hindu law-

(i) Only sons could be given for adoption by the natural father and mother only. The Guardian had no such power.

(ii) the father could give a son in adoption even without consent and against his wife’s wishes.

(iii) during the lifetime of her husband, the wife herself could not give up her son in adoption, nor could she consent to the adoption.

3) Capacity of a child to be adopted (S. 10)-

The section lays down the capacity of a child who may be adopted. According to the section-

(a) the child being adopted must be a Hindu,

(b) the child being adopted must not have already been adopted.

(d) the child being adopted shall not have completed fifteen years (unless custom permits).

Even orphans are also capable of adoption.

Changes brought by the Act-

According to old shastric Hindu law-

(i) Only a son could be adopted.

(ii) The adoptee of the son was to be from the same caste.

(iii) there was a prohibition for adoption in certain relations (virus[11]).

In other words, the adopting father is presumed to have begotten the child from the child’s natural mother. Therefore, the father and mother must be in a relationship wherein marriage is permitted. For example, a father cannot adopt the son of his daughter or sister because they both are in the prohibited degree of marriage.

(iv) orphan or illegitimate child could not be adopted.

However, there is no such prohibition in the present Act.

4) Other conditions for valid adoption (S. 11)-

The section lays down some common conditions applicable to all above-mentioned adoptions, viz.-

a) If a male child is being adopted, the person who is adopting must not already have a son, son’s son, or son’s son’s son, whether natural or adopted.
b) If a female child is being adopted, the person who is adopting must not already have a daughter or son’s daughter.
c) If a male adopts a female child, their age difference must be greater than 21 years.
d) If a female adopts a male child, their age difference must be greater than 21 years.
e) Two persons cannot adopt the same child.
f) Actual giving and taking of the child must happen. The mere intention of giving and taking is not enough. The child must be transferred from the home of the natural parents, or in the case of an orphan, from where he grew up to the adoptive parent’s home. However, the Dattak Homa ceremony is not necessary.

Changes brought by the Act-

According to old shastric Hindu law-

(i) Dattak Homa was a necessary ceremony for adoption. However, in the present law, only the transfer of a child is necessary; no home is necessary.

(ii) The Age gap was not mentioned; however, a 4—to 5-year-old son was considered proper for adoption. In some cases, the adoption of advanced-aged persons was also permitted.

V. Effects of adoption (S. 12 to S. 17)-

12 to 17 of the Act lays down adoption’s direct and indirect effects. We will discuss them as follows-

1) Deemed to be a natural child (S. 12)-

(a) An adopted child is deemed a natural child of his adopted parents for all purposes, effective from the date of adoption.

(b) From the date of adoption, all relations with the natural parents and family are severed, and new relationships are established with the adopted parents.

Exceptions-

(i) that the adopted child cannot marry anybody from his natural family in contravention of Sapind and prohibited relationships[12].

(ii) that the adopted child is not divested of the property that has vested in him before his adoption[13], and

(iii) that an adopted child cannot divest anybody of his vested property before adoption[14].

2) Right of adoptive parents to dispose of their property (S. 13)-

Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos[15] or by will.

3) Determination of adoptive mother in certain cases (S. 14)-

(a) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother.

(b) Where an adoption has been made with the consent of more than one wife, the senior most in marriage among them shall be deemed to be the adoptive mother and the others to be stepmothers.

(c) Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the stepmother of the adopted child.

(d) Where a widow or an unmarried woman adopts a child, any husband she marries subsequently shall be deemed the stepfather of the adopted child.

The section is inserted to remove doubt about the motherhood of the adopted child.

4) Valid adoption not to be cancelled (S. 15)-

No adoption which had been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.

Thus, once adoption is made, it cannot be cancelled.

5) Presumption as to registered documents relating to adoption (S. 16)-

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 is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act.

6) Prohibition of certain payments (S. 17)-

(a) No person shall receive or agree to receive any payment or other reward in consideration of the adoption of any person, and no person shall make or give or agree to make or give any other person any payment or reward, the receipt of which is prohibited by this section.

(b) If any person contravenes any of the provisions, he shall be punishable with imprisonment, which may extend to six months, or with a fine, or with both.

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[1] दत्तक घेणे [ दत्तक ग्रहण]

[2] आपले स्वतःचे aअसल्याप्रमाणे स्विकारने [अपने स्वयं के रूप में स्वीकार करके]

[3] अंत्यसंस्कार करण्यासाठी [ अंतिम संस्कार करने के लिए]

[4] कुटुबाचे नांव पुढे चालविण्यासाठी [ परिवार के नाम को आगे बढ़ाने के लिए]

[5] To avoid repetition and for the sake of brevity ‘The Hindu Adoption and Maintenance Act 1956’ is described as ‘the Act’ in present topic.

[6] शास्त्रवचनात विखुरलेला कायदा ऐकत्र केला [ शास्त्रों में बिखरा हुआ विधान इकठ्ठा हो गया]

[7] संन्यास घेतला असल्यास [ यदि सन्यास लिया जाता है]

[8] धर्मांतरण केल्यास [ अगर परिवर्तित ]

[9] AIR 2009 NOC 889 (P&H)

[10] AIR 2009 Raj 122

[11] विरूध्द [ के खिलाफ]

[12] जन्मलेलया घरात/नात्यात तो मुलगाच असल्यामुळे लग्न करू शकत नाही उद. बहीण इ. [ वह शादी नहीं कर सकता क्योंकि वह उस घर/रिश्ते में एक बेटा है जहां उसका जन्म हुआ था। बहन आदि।]

[13] जन्मलेलया घरातुन तो दत्तक जान्यापुर्वि त्यास काही मिळकत मिळाली असल्यास ती तो दुस-या घरात दत्तक गेला म्हणुन काढुन घेता येणार नाही. [ अगर उसे गोद लेने से पहले जन्म के घर से कोई आय मिली, तो उसे नहीं काटा जा सकता क्योंकि उसे दूसरे घर में गोद लिया गया है।]

[14] दुस-या घरात दत्तक जाण्यापुर्वि त्या घरातील मिळकत एखादयास मिळाली असल्यास दत्तक गेल्यामुळे ती काढुन घेतली जाऊ शकत नाही. [ गोद लेने से पहले दूसरे घर में अर्जित आय को गोद लेने के कारण वापस नहीं लिया जा सकता है।]

[15] हयातीत मिळकत तबदीली [ जीवनकाल के दौरान आय में परिवर्तन]