Introduction to 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 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.