THIS ARTICLE WAS WRITTEN BY ZETA TERESA PEREIRA, A STUDENT OF SYMBIOSIS LAW SCHOOL, PUNE.
What is Adoption?
Adoption refers to taking another’s child and bringing up the child as one’s own. This process vests in the child all the rights and privileges that a natural born child would otherwise inherit. Adoption can also be termed as the process of becoming non-biological parents.
Adoption under the old Hindu law
Under the earlier Hindu law, adoption was considered more sacramental than secular. Having a male child was important for the continuance of one’s lineage and was important to perform one’s last rituals. It was believed that a male child would bring moksha. The idea was to not just have a son but a son that must bear a reflection of the natural son. A daughter could not be adopted under the old Hindu law. Whenever a widow adopted a son, it was always deemed to be her husband’s son. The adoption related back to the date of the death of her husband. This was known as the theory of relation back.
Nowadays, people adopt for different motives. The courts need not enquire into the motives for adoption. The rules and regulations relating to Hindu adoption are given in the Hindu Adoption and Maintenance Act, 1956 (HAMA). HAMA has made adoption a very secular institution. All adoptions after 1956 are secular and must conform to the requirements of the Act to be valid.
Adoption under HAMA (Hindu Adoption and Maintenance Act, 1956)
The applicability of the Hindu Adoption and Maintenance Act, 1956 extends to all Hindus domiciled in India and to any person who is a follower of Virashaiva, Lingayat or a follower of Brahmo, Prarthana or AryaSamaj. This Act applies to any other person who is not a Muslim, Christian, Parsi or Jew by religion (Section 2 of HAMA).
The adoption under HAMA, once made is final and revocable. An adoption cannot be cancelled by the adopter neither can the adopted child renounce his adoptive parents and return to his or her family of birth (Section 15). Any agreement made between the parties to not adopt is void being against public policy. But any adoption made in consideration for any pecuniary benefit is valid despite the fact that such agreement is void. This is because the law does not enquire into the motive behind the adoption.
Once the adoption is complete, the adopted child loses all ties with the natural family and gets transplanted to the adopted family. All relations on the paternal and maternal side in the adoptive family also come into existence. This means that a male adopted child cannot marry the daughter of his adopted parents, whether that daughter was natural born or adopted as she, by fiction of law, became his sister (Section 12 of HAMA).
Under the Hindu Adoption and Maintenance Act, 1956, both males and females can make an adoption.
Who may take in Adoption?
No person who is of unsound mind or who has not reached the age of majority can make an adoption (Section 7 & 8). Majority means the completion of the age of 18 years. A person who is a lunatic, idiotic or insane is termed to suffer from unsoundness of mind.
Adoption by a Hindu Male (Section 7): A major Hindu of sound mind whether bachelor, widower, divorcee or married can make an adoption. It is obligatory for a married Hindu man to obtain the consent of his wife. If the man has more than one wife, the consent of all the wives must be taken. The consent of his wife can be dispensed off only in conditions such as when the wife has ceased to be a Hindu, if she has finally and completely renounced the world and if she is declared by a court of competent jurisdiction to be of unsound mind. An adoption made without the consent of the wife is void. If a Hindu male adopts a female child, there must be a gap of 21 years between them, otherwise, the adoption would be void.
Adoption by a Hindu female: Section 8 ofthe Hindu Adoption and Maintenance Act, 1956 was amended by the Personal Laws (Amendment) Act, 2010. Prior to this amendment, a married woman was not permitted to adopt even with the consent of her husband. After the amendment, any major Hindu female of sound mind can adopt, whether she is a spinster, widower, divorcee or married person. The consent of the husband is necessary and can be dispensed off only in conditions such as when the husband has ceased to be a Hindu, if he has finally and completely renounced the world or if he is declared by a court of competent jurisdiction to be of unsound mind. If a female adopts a male child, there must be a gap of 21 years between them, otherwise, the adoption would be void.
Who may give in adoption?
Under the old Hindu law, only the father or mother of the child could give the child in adoption. But Section 9 ofthe Hindu Adoption and Maintenance Act, 1956, permits a father, mother and the guardian to give the child in adoption.
The term guardian includes both de jure and de facto guardians. But a guardian can exercise his power only if both the parents are dead, if the parents have finally and completely renounced the world, if the parents have been judicially declared of unsound mind, if parents have abandoned the child or if the parentage of the child is not known. When the guardian exercises the power of giving the child in adoption, prior permission of the court is necessary.
The father should obtain the consent of the mother before giving in the child for adoption. In the absence of the mother’s consent, the adoption is void. After the amendment in 2010, a mother can also give the child for adoption with the consent of the father.
Who may be taken in adoption?
- Two persons cannot adopt the same child. The term two persons do not refer to husband and wife (Section 11).
- It is necessary that the child to be adopted must be a Hindu (Section 10).
- Orphans, foundling and abandoned children can be adopted under HAMA.
- HAMA lays down that the child must not have completed the age of 15 years(Section 10). Thus, a child can be adopted up to the age of 14 years and 364 days.
- Under the Act, no person can adopt more than one son or one daughter.
Restrictive Conditions of Adoption
- Adopter must not have a Hindu son, son’s son (grandson) or son’s son’s son (great grandson). If he has any of these, he cannot make an adoption. If the son, grandson or great grandson has ceased to be Hindu, the adoption of a son will be valid (Section 11).
- If a Hindu wants to adopt a daughter, it is necessary that he must not have a Hindu daughter or son’s daughter(Section 11).
- Two persons cannot adopt the same child.
- Adoption of a child of the opposite sex is only permitted if there is an age gap of 21 years between the adopter and the adopted child.
CASES ON ADOPTION
- Asha v. Vilhal: The court held that if a son’s widow had made an adoption, a widowed mother-in-law cannot make an adoption as then she will have an adopted son of a son.
- Golak v. Krutibas: The court held that violation of the 21 years age gap to adopt a child of the opposite sex, renders the adoption void.
- In Re: Adoption of Payal @SharineeVinayPathak: It was held by the court that a child could be adopted by a Hindu couple under the Juvenile Justice (Care and Protection of Children) Act, 2015, if the child completed the description of the specific class of children for whom the Juvenile Justice Act was made.
- Martland v. Narayan: The Bombay High Court held that a father can exercise the power of giving in adoption his son born to him before adoption.
The Hindu Adoption and Maintenance Act, 1956 is the Act that deals with the rules and regulations relating to adoption and maintenance and is applicable to Hindus only. No other personal laws deal with adoption other than the Hindu law. This is because Hindu law believed that it was necessary to have a male child to continue one’s lineage and attain moksha. On the other hand, the provisions relating to adoption contained in Juvenile Justice (Care and Protection of Children), 2015 are applicable to all Indians. The 2010 amendment to HAMA has made the Act more gender neutral.
 A.I.R. 1990 SC 670
 A.I.R. 1979 Ori 205
 2010 (1) Bom CR 434
 A.I.R. 1939 Bom 305