Hindu Adoption

Under the old Hindu law, adoption was a sacramental act. At present however, the Hindu Adoption and Maintenance Act 1956 has steered clearly away from all religious and sacramental aspects of adoption and has made it a secular institution and secular act. Under the old Hindu law, only a son could be adopted but not a daughter. But under modern law, a daughter also can be adopted. Earlier, only a male could take the decision to adopt but now even a single female can adopt a child. If a child is to be given in adoption during the life-time of the father, then the consent of both the parents is essential. After the death of the father, or if he has renounced the world, or he has turned insane, the mother can give the child in adoption. After both the parents, the guardian can give the child in adoption.

The result of adoption is that, for all intents and purposes, the adopted child becomes the child of the adoptive family and his position is the same as that of a natural-born child of that family. The relationship with his natural family comes to an end. A Hindu cannot adopt more than one son and one daughter. Adoption is not revocable at any time.

Laws pertaining to Hindu adoption in India

The Hindu Adoption and Maintenance Act, 1956 for Hindus provides for the adoption of only Hindu children by Hindu persons. Other communities, like Muslims, Christians, and Parsis come under the Guardians and Wards Act, 1890. Barring Hindus, the other communities do not have any law, regulating and permitting adoption. They are governed by their customary practice.

India also has constitutional provisions, e.g. Articles 39, 45, 46, 47 and the National Policy for Children, 1973. These oblige the Government to have laws, which permit the adoption of all children, irrespective of religion, race, caste, sex or place of birth.

Scope and ambit of the Hindu Adoption and Maintenance Act, 1956

The Hindu Adoption and Maintenance Act only extends to those rules, which govern the capacity and the right of a male and/or a female Hindu to adopt a son or a daughter, who must be a Hindu.

Essential conditions for a valid adoption

As per S.6 of the Hindu Adoption and Maintenance Act, 1956, the conditions are as follows:

  1. The person adopting, has the capacity to adopt;
  2. The person, giving the adoption has the right to give in adoption;
  3. The person to be adopted is capable of being taken in adoption;
  4. All formalities and procedures for adoption are observed.

PROCEDURE TO BE OBSERVED FOR ADOPTION

The physical act of giving and taking the child is an absolute necessity for the validity of adoption. This power to give the child may be empowered by the mother, father or guardian of the child to someone else; and the same holds for the adopter. If the father or the mother have to give a child in adoption, no prior permission of the court is required. However, in case the guardian wants to give the child in adoption, the prior permission of the court is required. No court will accord permission unless it finds that the proposed adoption is for the welfare of the child.

There is no legal requirement for any documentation, but as a matter of practice, an adoption deed is executed.

Registration of adoption is not compulsory under Indian Law. However, it would be advisable to register an adoption deed, as the law creates a presumption in favour of the person, producing documentation, which certifies the validity of the adoption.

LEGAL POSITION OF ADOPTION

An adoption, once made, is irrevocable. The adopted child shall be deemed to be the child of the adoptive parents for all purposes, with effect from the date of adoption. On the date of adoption, all the ties of the child’s family of birth shall be deemed to be severed and be replaced by that of the adoptive family.

However, there are certain conditions:

  • The child cannot marry any person, whom she or he could not have married if he or she has carried on living in the family of his/her birth;
  • Any property that vested in the adopted child, before the adoption, shall continue to vest in such person, subject to the obligation if any;
  • The adopted child shall not divest any person of any estate, which vested in him or her, before the adoption.

Any consideration in the form of a payment or reward for adoption is strictly prohibited by the Hindu Minority and Maintenance Act. This amounts to trafficking in children. Such giving and receiving of consideration is a penal offence, punishable with imprisonment, which may extend to six months or with fine or with both.

WHO CAN GIVE A CHILD IN ADOPTION AND HOW?

Only the father, mother or guardian of the child can give away the child for adoption.

The father or mother can give the child in adoption in the following circumstances:

If the father is alive, he alone can give the child in adoption, but not without the consent of the mother, unless the mother has completely renounced the world.

This is subject to the following conditions:

A guardian can give a child in adoption, under the following circumstances:

  • Where both the father or mother are dead;
  • Where both the father or mother have renounced the world;
  • Where both the father or mother have been declared by a Court of competent jurisdiction to be of unsound mind;
  • Where both the father and mother have abandoned the child.

The guardian may give the child in adoption with the previous permission of the Court to any person, including himself/herself.

WHO IS CAPABLE OF BEING ADOPTED?

According to the Hindu Adoptions and Maintenance Act, the persons, who satisfy the following requirements, are capable of being adopted:

  • He or she is a Hindu;
  • He or she has not been adopted before;
  • He or she has not been married, unless there is a custom or usage, applicable to the parties, which permits persons who are married to be taken to adoption;
  • He or she has not completed the age of 15 years, unless there is a custom or usage, applicable to the parties, that permits persons who have completed the age of 15 years to be taken into adoption;

Further, if the adoption is of a male, the adoptive father or mother, by whom the adoption is made, must not have a Hindu son, son’s son or son’s son, living at the time of adoption.

If the adoption is of a female, the adoptive father or mother, by whom the adoption is made, must not have a Hindu daughter or son’s daughter, living at the time of adoption.

Further, if the adoption is of a female and, the person adopting is a male, then he should be at least 21 years older than the adopted person. Similarly, if a male is adopted by a female, she should be at least 21 years older than the adopted person.

ESSENTIAL FOR VALID ADOPTION

Conditions essential for valid adoption (Section 11)

  1. If a son is being adopted, the adoptive father or the mother must not have a Hindu son, grandson (son’s son), or great grand son (legitimate or by adoption) living at the time of adoption. (Formal renunciation of religion by any of the above will not come in the way of adoption).
  2. If a daughter is being adopted, then the adoptive father or mother must not have a Hindu daughter, or grand-daughter (son’s daughter), or great grand daughter (whether by legitimate or by adoption).
  3. The adoptive parents (mother, in case of a boy and father, in case of a daughter) should be at least 21 years older than the adopted child.
  4. The same child may not be simultaneously adopted by two or more persons.
  5. The Child to be adopted should be actually given to and taken in adoption by parents or guardians, concerned with the intent to transfer the child from of its birth or, in the case of an abandoned child, from the place or family where he was brought up.

ESSENTIAL CONDITIONS FOR A MALE FOR ADOPTION

As per S.7 of the Hindu Adoption and Maintenance Act, 1956, these conditions are as follows:

  • The person, adopting, should be of sound mind;
  • He should not be a minor, i.e. a person below the age of 18 years;
  • The consent of the wife, if present, has to be procured, unless:
    • The wife has completely renounced the world;
    • The wife has ceased to be a Hindu;
    • The wife has been declared by a Court to be unsound.
    • If the person, adopting, has more than one wife, the consent of all of them is necessary, unless for the reasons specified.

Essential conditions for a female Hindu to adopt a child

As per S.8 of the Hindu Adoption and Maintenance Act, 195, the conditions are as follows:

The person, adopting:

  • Should be of sound mind;
  • Should not be a minor, i.e. a person below the age of 18years;
  • The person should not be married. Or, if married, the marriage should have been dissolved, or whose husband is dead, or has completely renounced the world, or has ceased to be a Hindu, or has been declared by a Court to be of unsound mind by the court of competent jurisdiction.

* Two people can only adopt if they are married and are living together.