Introduction
Hindu Adoption and Maintenance Act deals with the legal procedure of adoption of children by Hindu and other legal obligations that follow, including maintenance of children, wife, and in-laws. In the first part of this article, I will talk about adoption for Hindus and the second part shall deal with maintenance.
Applicability of Hindu Adoption and Maintenance Act
As per the act – a Hindu does not merely mean a person that follows Hinduism but also includes other sub-religions of Hinduism, such as- Buddhists, Jains, Sikhs, Virashaiva, Lingayat, or members Arya Samaj. Followers of Brahmo and Prarthana are also included in the definition of Hindu.
As a matter of fact, the Hindu Adoption and Maintenance Act covers everyone residing in India who is not a Christian, Muslim, Parsi or Jew.
The Act sheds light upon:
- What a valid adoption is?
- Who can adopt children?
- Procedure to adopt children along with other duties and obligations that occur after adoption.
What is Adoption?
The Act has no description of the word “Adoption” per se, but it is a Hindu law derived from uncodified Hindu laws of Dharamsastra, specifically Manusmriti.
Adoption has been described in Manusmriti as ‘taking someone else’s son and raising him as one’s own’.
Hindu Adoption and Maintenance Act has made the definition of ‘adoption’ much wider by using the word ‘child’ instead of ‘son’. Child includes both a girl and a boy child, and not merely a son.
With the change in society over time a codified and uniform legislation was required to serve the democracy, so, no adoption can be made without the procedure mentioned in this act. If any adoption is made neglecting this act, the adoption shall be rendered to be void.
Adoption will be valid only if it has been made in compliance with this Act.
Who can Adopt a child?
In order to adopt a child, the person 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.
The capacity of a Hindu male to adopt.
Section 7 states that a male Hindu who is willing to adopt a child must fulfil the following conditions:
- Attained the age of majority; and
- Be of sound mind.
- Must have a wife that is alive whose consent is absolutely necessary.
- It can be overlooked if the wife is incapable of giving consent due to insanity or other reasons.
- If a person has multiple wives, the consent of all the wives is necessary for adoption.
In Bhola & ors v. Ramlal & ors, the plaintiff had two wives and the validity of adoption was in question as he had not taken the consent of one of his wives before adopting.
It was the contention of the plaintiff that his wife had absconded and could be considered as good as dead.
The High Court of Madras observed 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 held that as long as the wives are alive, the consent of each wife is necessary for a valid adoption.
If the wife has converted to some other religion or renounced the world, her consent isn’t necessary for adoption. But, the existence of a living wife is an essential requirement for a Hindu male to adopt children.
The capacity of a Hindu female to adopt.
Section 8 of the act states that a Hindu Female willing to adopt a child must:
- Have attained the age of minority;
- Be of sound mind;
- Be either a widow;
- Divorced, or
- Unmarried in order to adopt.
If she has a husband who is alive, she will not have the capacity to adopt a child.
Who can give a child for adoption?
No one but the parents and guardian of the child can give them up for adoption as per Section 9 of the Hindu Adoption and Maintenance Act.
As per the act:
- Only the biological father of a child has the authority to give him up for adoption;
- The consent of the child’s biological mother is necessary.
A mother will have the capacity to give the child up for adoption if:
- The father is either dead;
- Of unsound mind;
- Has renounced the world; or
- Converted to some other religion.
The section clearly mentions that the father and mother mean biological parents and not adoptive parents. Adoptive father or mother can not give the child up further for adoption.
Can the guardian give a child for adoption?
A guardian as described in Section 9 of the act means a person appointed by the parents of a child or the court for taking care of the child and his/her property. If the child’s biological parents are either dead, have renounced the world, have lost their mind or have abandoned him – he can be given up for adoption by the guardian.
But in order for a guardian to give up a child for adoption, he must have the permission of the court for doing so. The court for giving such permission must be satisfied that:
- The adoption is for the welfare of the child;
- No payment has been made in any form in exchange for the child.
When is adoption valid?
Under the Hindu law of adoption, only a Hindu can adopt a child if he/she abides by the essentials prescribed in Section 6 of the act:
- The adoptive parent/s have the capacity and rights to adopt;
- The person/s giving up the child for adoption has the capacity to do so;
- The person being adopted has the capacity to be taken in adoption;
- The adoption is made in compliance with the act.
Only upon meeting these requirements shall adoption be valid.
Necessary conditions to be fulfilled for:
The Hindu Adoption and Maintenance Act prescribes a set of rules for a valid adoption, which must be complied with. Such as:
Adoption of a son
Section 11(i) of the act states that if a Hindu male or female desires to adopt a son, they must not have a living son, grandson, or even a great-grandson at the time of adoption.
It is irrelevant whether the son is legitimate, illegitimate, or adoptive. They should not already have a son who is living.
Adoption of a daughter
Similar to the conditions of adopting a son – Section 11(ii) states that one wishing to adopt a daughter must not have a living daughter or a granddaughter from their son at the time of the adoption.
It is immaterial whether the daughter or granddaughter is legitimate, illegitimate, or adoptive.
Adoption of a female child by a male
A Hindu male willing to adopt a girl child must have the capacity to adopt a child as prescribed in Section 7 of the act, and Section 11(iii) states that he must be at least 21 years older than the girl child that is to be adopted.
Adoption of a male child by a female
If a Hindu female wants to adopt a male child she must first meet the requirements prescribed in Section 8 of the act and have the capacity to adopt a child.
Also, she has to be at least 21 years older than the child she wishes to adopt.
Other conditions
When adopting a child a person must comply with some additional conditions along with all the aforementioned conditions.
These additional conditions are basic and are very important for the welfare of the child.
- Section 11(v) of the act says that the same child can not be adopted by multiple people at the same time.
- Section 11(vi) states that a child that one wants to adopt must have been given up for adoption as per the guidelines of this act, by their biological parents or guardian.
- The Section further states that the child shall be given up for adoption with the intention to transfer him/her from their biological family to the adoptive one.
- In the case of an abandoned child or whose parents are unknown, the intention must be to transfer him/her from the place or family that they have been brought up to their adoptive family.
Effects of adoption
Adoption will completely change the life of a child in many ways. He becomes a part of a new family and will have rights in the property as well.
Section 12 of the act states:
- When a child has been adopted,
– They shall be considered as the child of their adoptive parents for all purposes.
– The adoptive parents shall have all the parental obligations and rights.
– The child shall have all the rights and obligations of a son/daughter.
However, there are some conditions that the child must abide by after he has been adopted, such as:
- He/she must not have an incestuous relationship with anyone from their biological family, and should not marry anyone from their birth family. The rules of the Hindu Marriage Act, 1955 regarding ‘sapinda relation’ shall be applicable to them towards their birth family.
- If the child had any property before the adoption, it shall continue to be in their possession after. However, such property may bring some obligations over him and he shall be liable to all those obligations, including having to maintain his biological family if required.
- The adopted child shall not deprive any member of his birth family of any property that he held before the adoption.
It is important for the adoption to be valid to have any effect at all. In Sri Chandra Nath Sadhu & ors v. The State of West Bengal & ors, the High Court of Calcutta stated that a void adoption will not create any rights in the adoptive family for anyone that could have been obtained from a valid adoption, nor any existing rights will end in the child’s biological family
Rights of adoptive parents to dispose of their property
If adoptive parents wish to dispose of their properties by transfer by gift or will, they are free to do so and adoption does not stop them. Unless there is an existing agreement that states the contrary.
Who will be the adoptive mother in case of adoption by a male?
We have already discussed that a Hindu male who has a living wife must have her consent for adopting a child.
- Section 14(1) of the act states that in such cases the wife shall be deemed to be the mother of the adopted child.
- If a male who adopted the child has multiple wives, the senior-most wife shall be considered to be the mother of the adopted child while his other wives shall have the status of stepmothers as stated in Section 14(2) of the act.
- Section 14(3) of the act states that if a child has been adopted by a bachelor or a widower, the woman he marries if he ever gets married will become the stepmother of the child.
- A widow or bachelorette who adopts a child will be their mother and in case she gets married to anyone, the man will be deemed to be the child’s stepfather as per Section 14(4) of the act.
Can a valid adoption be cancelled?
- When a person has opted for adoption and it has been validly made, there is no way that they can cancel the adoption.
- Section 15 of the act clearly states that neither the parents can cancel a valid adoption, nor the child has any right to renounce their adoption and return to their biological family.
- Once a valid adoption is made, there is no going back. It is final.
Prohibition of payments
With the increasing child trafficking around the world, the prohibition of payments during an adoption is one of the most important rules in order to ensure that the child is not being sold.
It is stated in Section 17 of the act that no payment can be received or made during an adoption by anyone. No one shall receive any reward in monetary or non-monetary ways for adopting a child or giving them up for adoption.
If one is caught making or receiving payment in any form during the process of adoption, they shall be liable for imprisonment for up to 6 months and/or