Table of Contents
“The concept of Adoption is more of giving a child to a childless couple and it is more of a home to a homeless child”.
Adopting a child is generally a good deed that is considered to be a holy process. There is no uniform law for all religions in India. Hence, the process of adopting a child under Hindu law is governed by the Hindu Adoption and Maintenance Act, 1956. It deals specifically with the legal process of adopting a child. This act was passed after the independence which further divided the scope of adopting a child in the country and is aimed at eradicating all discriminatory and prejudicial provisions. This Hindu law derived from uncodified ancient Hindu laws of Dharmasastra, specifically Manusmriti.
Adoption is a legal process in which a child is placed with a married couple or a single woman after looking into their capability and other details. They should agree to raise and take care of the child. Adoption is a way available in law for people who are not related by blood to establish a parent-child relationship. Therefore, if a Hindu couple is willing to adopt a child, they should follow the procedure given under the Hindu Adoption and Maintenance Act, 1956.
To whom does Hindu Adoption and Maintenance Act, 1956 apply?
Adoption does not require any formal ritual to be conducted. It has been described in Manusmriti as ‘taking someone else’s son and raising him as one’s own. According to the applicability of the act, Hindus do not only mean a person that follows Hinduism but also include other sub-religions of Hindus. Buddhism, Jainism, and Sikhism are considered to be sisters of Hindu law and hence this law applies to all of them but it does not apply to Christians, Parsi, Jew, and Muslims. It also applies to a child whose parents are Hindus or a convert from some other religion to Hinduism. So the Hindus can adopt a child with the fulfillment of certain criteria.
What is adoption and who can adopt a child?
Adoption is the act of a person taking as his lawful child a person who is not his child. Section 11 (i) (ii) of the Hindu maintenance and adoption act, 1956 allows the adoption of a child who is of the opposite gender. For example, if the parents who are willing to adopt already has a male child, then they only adopt a female child and vice versa. A child gets transferred from one family or some other place to a new family through legal means is called adoption. The adopted child is considered to be born in the new family where the child acquires rights and duties and his ties with the old family will come to an end. The parental duties and rights of the parents get severed when a child is adopted, and those responsibilities and rights will get transferred to the adoptive parents. He procures new rights, obligations and duties per the law. However, there are many progressive improvements as a result of the new concept’s adoption.
- Firstly, any married or unmarried male, any married or unmarried female or even an NRI can adopt a child.
- Any male Hindu being a major with a sound mind is eligible for adopting a child. If that male is a married person and if he wants to adopt a child, then the consent of his wife is necessary. The consent should also be free and not a coerced one. If the above person has more than one wife, then the consent of all of them is necessary. It can be considered when the wife is unable to give consent due to insanity.
- Likewise, any Female Hindu, being a major with a sound mind is eligible for adopting a child. If that Female is married and wants to adopt a child, then she has to take the consent of her husband and the consent should be free.
- Any person to adopt a child must be a Hindu and have the capacity to adopt it. A Hindu male who wishes to adopt a child must meet the requirements provided in Section 7 of the act and a Hindu female wanting to adopt shall abide by Section 8 of the same.
In a case, the plaintiff had two wives and regarding the validity of adoption, he had not taken the consent of one of his wives before adopting. The High Court of Madras held that the wife of the plaintiff had run away but could not be considered dead unless she had not been heard from for at least seven years. It was ordered that as long as the wives are alive, the consent of each wife is necessary for a valid adoption (Bhola & ors v. Ramlal & ors AIR 1989 MP 198).
Difference of opinion takes place in few cases wherein a case, the child to be adopted is orphaned, abandoned or surrendered child or a child in need of care and protection as defined in Juvenile Justice Act, the ban imposed by Section 11 (i) and (ii) of Hindu Adoption and Maintenance Act does not bar the Hindu having a biological child from adopting the child of the same gender. Due to the rapid change in social scenarios, acts are amended harmoniously to ensure rehabilitation and social reintegration of orphaned, abandoned and surrendered children – Therefore in this case the adoption of child girl was held maintainable
As pointed out by Hindu Adoption and Maintenance Act 1956, Section 10, a child should only be adopted according to certain conditions:
- The child ought to be Hindu.
- The child should not have been adopted previously.
- The age of the child should be under 15 years.
- The child ought not to be married
What are the major requisites for adoption?
- When a male or a female separately want to adopt a son, then they should not have a son living at the time of adoption. The son may be a legitimate or an illegitimate son.
- Same way, when a male or a Female Hindu wants to adopt a daughter, they should not have a daughter or son’s daughter living at the time of adoption.
- If a male wants to adopt a daughter, that male should be at least 21 years elder than the adoptive daughter.
- If a Female wants to adopt a son, she should be at least 21 years older than the son whom she is going to adopt
Apart from all of these, the person taking the child as his own must have the right and capacity to raise the child. Also on the other hand the child adopted must be capable of giving in adoption. All the procedures and formalities regarding the adoption must be complied with properly according to law.
What is the procedure to adopt a child under Hindu law?
Hindu Adoption and Maintenance Act specifically deals with the legal procedure of adoption of children by Hindus. It is followed by some legal obligations. It also covers the maintenance of children, wives, and in-laws. The process of adoption can be time-consuming and to streamline the process, we need to ensure that there is awareness about adoption procedures and there are sufficient adoption centers in our country.
- So when a party is willing to adopt a child, who has fulfilled all the criteria mentioned under the act, he can proceed with making an application to the child welfare agency.
- The registration of parents and the adoptive child can be done through an agency certified by the central adoptive research authority.
- Later, an interview or a formal meeting will be conducted to ensure that the parents understand the nook and corners of adoption.
- After this process, the court will look into the matters in a broad perspective after the filing of the petition
- Lastly, the court will pass the decree and the adoption becomes valid.
Adoption will completely change the life of both the parents and the adopted child. The child becomes a part of the family and can be given all the rights in the family. Section 12 of the act states that the adopted child shall be considered as the own child of the adoptive parents and they can carry all the parental obligations and rights. It states the effects of adoption. In case if the adoptive child is from a proper family, then he need not deceive all the relations with his biological family. However, it works at the discretion of both the biological parents and the adoptive parents. In case of any property attached to the child, it shall continue to be in his possession even after the adoption.
It is very important to note that for the adoption to be valid it should fulfill all the mandatory procedures mentioned under the act. Otherwise, it becomes void. The court has stated in a case that a void adoption will not create any rights in the adoptive family for anyone that could have been obtained from a valid adoption, or any existing rights will end in the child’s biological family. (Sri Chandra Nath Sadhu & Ors v. The State of West Bengal & Ors, 3 CALLT 1 HC, I (2004) DMC 359) Also, no adoption that has been validly made under the law can be canceled by the adoptive parents.