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Adoption under Hindu law


Authored by Satvica Dixit


Keywords: Adoption, Hindu male, Hindu female, Valid legal adoption, Legitimate child, Legal capacity for adoption, Rights, and obligations.


Abstract

Adoption is the process whereby parenting of a child is done by someone who is not the biological parent of that child. Legal adoption under the law confers all the rights and responsibilities along with filiation from the biological parents to the adopted parents. India has a wide range of Adoption laws for people belonging to different religions. As per Hindu Puran, it is assumed that the adopted son is also kind of a reflection of the natural son and is a legitimate child of the adoptive parents. This article gives an engrossing and engaging insight into the Adoption laws for Hindus in India.


Introduction

Adoption under Hindu law is governed by the Hindu Adoption and Maintenance Act, 1956 which was derived and based on uncodified laws of Dharmshashtra especially Manusmriti. The Hindu Adoptions and Maintenance Act was enacted in 1956 in India as part of the Hindu Code Bills. This specifically deals with the legal process of adopting a child by a Hindu adult with the legal obligations of Hindu maintenance for his/her child. Section 9 of the Act specifically states that only the biological parents of the child can give for adoption but in case the biological parents are dead, have renounced the world, or have gone insane then the guardian of the child who has been legally appointed by the court can give the child for adoption.


This act covers adoption and maintenance belonging to every other religion except Muslim, Christian, Parsi, and Jew.

Section 2 of the act talks about the application of the act which includes:

· a Hindu who has his/her by religion in any of its development or form

· one who is Buddhist, Jain, and Sikh by religion

· any legitimate or illegitimate child one of whose parents are Hindus, Jains, Buddhists, and Sikhs or has been so brought up;

· a person or child who converted into Hindu, Jain, Buddhist, and the Sikh religion

· an abandoned child whether legitimate or illegitimate of unknown parents who are brought up as a Hindu, Buddhist, etc.


Legal capacity to adopt

Section 7 states the capacity of a Hindu male to adopt a child while Section 8 talks about the legal capacity of a Hindu female to adopt a child.


According to Section 7, any Hindu male who is major and of sound mind can adopt any boy and girl as his son/daughter. If the person is married then the consent of the wife is also necessary, it can only be overlooked in the cases if the wife is not of a sane mind. In the case of Bhola & Ors v. Ramlal & Ors[1], the plaintiff had two wives as one absconded and was never seen or heard but then the court held that as before seven years, divorce is not considered between the husband and wife as per the Hindu divorce. So, the consent of both wives is required before adopting a child.


As per Section 8 of the act, any Hindu female who wants to adopt a child should have attained the age of majority and be of sound mind. A Hindu female can only adopt a child if she is either a widow, divorced, or unmarried because if she is married then her husband can only adopt a child on his name. In the case of Malti Roy Chowdhury v. Sudhindranath Majumdar[2], the plaintiff adopted a child with the consent of her husband but then this adoption was held invalid by the court as under The Hindu Adoptions and Maintenance Act, 1956.


Legal capacity to be adopted

Section 10 of the act talks about the capacity of a child who can be adopted under Hindu law. Any child who is given for adoption should:

· The child needs to be Hindu or follower of Hinduism in case of adoption under Hindu law and this act.

· If the child is already adopted by someone, he/she cannot be given for further adoption or cannot go for another adoption.

· There is no provision for a married person to be adopted in this act. So, the married individual cannot be given for adoption as per this act.

· The child given for adoption or going for adoption should be less than fifteen years to be adopted as per this act.


Some pre-requisites for Adoption

Section 11(i) of the act states that if a Hindu female or male need to adopt a son then he/she has to make sure that they don’t have a son, grandson, or even a great-grandson living at the time of adoption otherwise the adoption will be held invalid. The same is with adopting a daughter which is given in Section 11(ii) that an individual should not have a daughter or grand-daughter from his/her son living at the time of adoption.


Section 11 further in its clause (iii) states that if any male wants to adopt a daughter then he has to be at least 21 years older to her otherwise the adoption will be held invalid. The same is with a female given in clause (iv) that when any Hindu female wants to adopt a son, she needs to be a minimum of 21 years older to him. Another pre-requisite in Section 11(v) is that the same child cannot be adopted by multiple people.


Effects of Adoption

Section 12 states distinctly that after the valid legal adoption, the adopted child is considered as the legitimate child of his/her adoptive parents and earns all the rights and duties of a natural son/daughter. The adoptive parents also get the rights and obligations as the parents of their adopted child.


However, the adopted child still needs to adhere to certain norms as he/she cannot marry someone in the relation which is prohibited under Hindu law from their biological family. If the adopted child holds any property which brings some obligations to him/her concerning his biological family then he/she needs to fulfill it. Even though the adoptive parents become obligated towards their adopted child but still they have their right to dispose of their property by will or transfer as per Section 13 of the act.


Section 14 talks about the fact that in case the male widower or bachelor adopts any child after which he marries someone then that woman will be called step-mother of that child. A similar provision is with the unmarried or widowed female, in case she adopts a child and marries someone afterward, he will be called as the step-father of that child.


Section 15 of the act apprises clearly that the valid adoption under the law and this act cannot be canceled by the adoptive parents or even the child cannot renounce his/her status as the son/daughter of adoptive parents. Once the adoption is done, it is final under Hindu law and there's no going back.


Conclusion

The Hindu Adoption and Maintenance Act, 1956 has also given a very important provision in

its Section 17 that prohibits any kind of money exchange in the adoption process. It strictly states that if any amount of money is exchanged during the adoption process then that adoption will be termed as invalid under the law and the person doing so will also be prosecuted and punished for the same with imprisonment up to 6 months and/or fine.


This kind of provision is very imperative because of the growing cases of child trafficking in the country to ensure that no child should fall in the wrong hands under the veil of adoption.

Although the act certainly has accurate provisions for adoption and maintenance but still under some provisions there is a lot to improve as in some provisions no married woman can adopt a child under her name even after the consent of her husband which has to be taken care of so that everyone can be given equal rights.


References

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

[ii]https://blog.ipleaders.in/hindu-adoption-maintenance/

[iii]https://thefactfactor.com/facts/law/civil_law/family_laws/hindu-laws/adoption-by-hindu-female/3708/


Foot notes:

[1] Bhola and others v. Ramlal and others, AIR 1989 MP 198 [2] Malti Roy Chowdhury v. Sudhindranath Majumdar, AIR 2007 Cal 4