Adoption under Hindu Law (Hindu Adoption and Maintenance Act,1956)

Adoption under Hindu Law (Hindu Adoption and Maintenance Act,1956)

Author: Meenakshi Dixit

college name: Banasthali Vidyapith

Introduction

Under Hindu system, children are considered important for various religious and secular causes. Adoption under ancient Hindu law was based on religious theory. Particularly, having a son was requisite to perform pinda daan, antyeshthi (cremation) ceremonies, sacrifices and so on. Secular reasons include the man’s desire to continue his lineage, providing security in the old age, and the satisfaction that one has left heir for one’s property. Baudhayana declared: “through a son one conquers the world, through a grandson one obtains the immortality, and through the great grand son one ascends to the highest heaven” (Diwan, 2019). Hindus have always desired an aurasa (natural born legitimate son) for spiritual benefit and continuation of family. But it is also observed that secondary sons were in existence since the vedic age such as Khetraja (soil born), Kanina (maiden born) and dattaka (adopted) sons.

Nature of Adoption under Hindu Law

Adoption under ancient Hindu law was purely a sacrament, although some of the motive behind it may be secular. It was a rule that adopted son must be a reflection of a son (saunaka) and no one could adopt a daughter’s son or sister’s son as one could not marry one’s sister or daughter. (Family Law I , 2020) It was also required that the adopted son must be of the same caste and sect as of his adoptive father. Besides the age of adoption in all schools of hindus except Bombay, before 1956, was accustomed to be before the performance of upanayana ceremony for twice born caste, and for shudras, it was before marriage. Also, adoption was sacred because of inevitability of two ceremonies:- (a) ceremony of giving and receiving and (b) Datta Homa.

After the passage of Hindu Adoption and Maintenance Act,1956, adoption has predominantly become a secular institution, so much so that even a religious ceremonies are not necessary for adoption now. And also, there remains no restriction as to caste, sect etc of adopted person and adoption of an abandoned, illegitimate, or orphan child is permitted which was not so in the old Hindu law.

Requisites of Valid Adoption as per Hindu Adoption and Maintenance Act,1956

Section 6 lays down requisites in terms of

(a) who may take in adoption,

(b) who may give in adoption,

(c) who may be taken in adoption,

(d) formalities

Section 7: Capacity of a Hindu Male to Take in Adoption

A major Hindu male of sound mind can adopt, whether he is a bachelor, widower, divorcee or married person. For a married Hindu, it is necessary to obtain consent of his wife. In case of

Bholooram v/s Ramlal1 it was held that if consent of wife living with the husband is taken but not of the wife living separately, the adoption would be void.

This requirement of consent is dispensed with if the wife has ceased to be a Hindu, has renounced the world, declared as unsound by a competent court.

Also, if he adopts a female child, he must be at least 21 years older to her.

Section 8: Capacity of Hindu Female to Adopt

Earlier a married woman had no right to adopt even after consent of her husband. With the passage of Personal Laws (Amendment) Act, 2010, she can adopt a child if she is of sound mind and major. Provided if she is living with her husband, she shall not adopt without his consent unless he has renounced the world, ceased to be a Hindu, been declared unsound by competent court.

In case of Vijayalakshamma v/s B.T. Shankar2, it was held that where a widow adopts a child, she need not take consent of a co-widow because she adopts the child in her own capacity.

The prohibition of Shastric law barring woman to adopt is no longer applicable. In Abhishek Sharma v/s State of Uttar Pradesh3, it was held that after death of her husband she can adopt a son and a daughter provided she does not have one of her own.

Section 9: Persons Capable to Give in Adoption

According to Yajnavalkya, under old Hindu law, “A dattaka son is one whom his mother or father gives”4. Now, the father, mother and guardian have the power to give in adoption. However, the father or mother can give the child in adoption only after obtaining consent of other. The requirement of consent is only dispensed with in one of the following case-

• Completely renounced the world

• Ceased to be Hindu

• Declared unsound by a competent court

The mother of an illegitimate child can give the child in adoption even without obtaining putative father’s consent.

The expression mother/father used in this section doesn’t include adoptive mother/father or stepmother/stepfather.

This section also provides that where father/mother are dead, or child is an abandoned one, or where parentage of child is not known or such other case, the guardian of the child may give in adoption with the permission of court. Guardian includes both de jure and de facto guardian.

Dhanraj v/s Suraj5, it was held that a manager, secretary, or in-charge of an orphanage or any person who has brought the child or in whose care the child was, can give him in adoption.

However, the court will grant permission only on being satisfied that the proposed adoption is beneficial for the child seeing all the pros and cons of the adoption. The court is not bound to follow the wishes of child, (if any expressed) as welfare of child is the paramount consideration. Besides, the court also has to see that no payment or reward has been given or agreed to be given in consideration of adoption, except for such payment as the court may sanction.

Section 10: Persons Who May be Taken in Adoption

The child must be Hindu. Therefore, adoption of a muslim child by a Hindu is not recognized under this act as laid down in Kumar Sursen v/s State of Bihar6. Under the old Hindu law, it was a rule that no one could be adopted whose mother in her maiden state could not marry the adopter. However, by the 1956 act, no such restriction exists now and the child, howsoever be related to the adopter, can be adopted7.

Two persons cannot adopt the same child. Therefore, he or she should not already be adopted.

Section 10(iii) prohibits adoption of married child, but recognizes custom to the contrary. In Tarabai v/s Bagonda8, it was held that where adoption of married person of any age is valid, any child born to him after adoption will be the child of adoptive family.

It also provides that the child to be taken in adoption must not have completed the age of 15 years, unless it is permitted by a custom. In Alturi Brahmanandan v/s Anne Sai9, adoption of boy above 15 years of age was held valid when custom was amply proved to be existing in Kamma community.

Section 11 mentions other conditions for valid adoption. It provides that the adopter must not have a son/daughter or their descent up to 3 degrees living at the time of adoption. It also provides that performance of Datta Homam is not essential but there must be actual giving and taking of child in adoption with intent to transfer the child from family of his birth to the family of adoption.

Section 12: Effects of Adoption

It provides that the from the date of adoption, the ties of the child in family of his birth be deemed to be severed and created in that of the adoptive family. However, the child cannot marry any person whom he could not have married, if continued in natural family. Adoption means a complete transplantation of the child in the adoptive family, therefore, he cannot marry any person whom he could not have married had he/she been the natural child of the family.

Proviso (b) provides that property vested will continue to be vested with all obligation attaching to it, including maintenance of relatives of family of his birth. Muthurishan v/s Sri Palani10, it was held that any property that the child inherited before adoption will continue to be his property even after adoption.

Section 13 provides that subject to an agreement to contrary, adoptive parent’s right to dispose of their property by transfer inter vivos or will continues even after adoption.

In Chandrani v/s Pradeep11, it was held that agreement restricting power of alienation of adoptive parents is valid.

Section 14 lays down determination of adoptive mother in cases such as where adoption is made with the consent of more than one wife, the senior-most in marriage would be the adoptive mother, and others be the stepmothers; where widower, bachelor, widow, or unmarried woman marries after adoption of a child, the spouse be deemed as step parent to the child.

Section 15 gives a permanent nature to system of adoption by laying that the adoption cannot be cancelled by adoptive father/mother, neither the adopted child can renounce his/her status as such and return to family of his birth.

Proof of adoption

Section 16 provides that registered document of adoption raises a presumption that adoption has been made in compliance of this act. In absence of such document, adoption must be proved by some cogent evidence. But absence of registered document does not nullify the adoption as held in case of Chandrani v/s Pradeep.

1 1989 MP 198

2 2001 SC 1424

3 AIR 2009 ALL 77 (DB)

4 Yajnavalkya II, 131

5 1981 Pat 204

6 2008 Pat 24

7 See Minakshi v/s Ramanodha (1880) 11 Mad 49

8 1981 Bom 189

9 AIR 2011 SC 545

10 (1969) 1 MLJ 129

11 1991 MP 286

REFERENCES

• https://tcw.nic.in/Acts/Hindu%20adoption%20and%20Maintenance%20Act.pdf

• https://allindialegalforum.in/2020/08/06/adoption-under-hindu-law/

• http://plrs.org.in/pdfs/Hindu%20Adoptation%20And%20Maintainence%20Act.pdf

• http://docs.manupatra.in/newsline/articles/Upload/E8EFE493-114B-4E5B-A014-682EB1729301.pdf

• http://www.nja.nic.in/2.%20Hindu%20Adoption%20Law%20and%20Judicial%20interpretation-%20Deepak%20KR.Verma.pdf

• https://www.indiacode.nic.in/handle/123456789/1638?view_type=browse&sam_handle=123456789/1362

10 (1969) 1 MLJ 129

11 1991 MP 286