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hindu-law:part-2:adoption

Adoption under Hindu Law

‘Adoption’ means the process through which the adopted child is permanently separated from his biological parents and become the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship. Adoption has been aptly described as the process by which the legal relationship between a child and his or her birth parents is severed and an analogous relationship between the child and adoptive parents is established.1)

Adoption, an ancient practice

Adoption of children is a practice of greatest antiquity, which was recognized by civil law from its earliest date and obtains among the continental nations of Europe whose jurisprudence forms the civil law. Though adoption was unknown to the Common Law of England, it was very well known among the Hindus, the Assyrians, the Egyptians, the ancient Jews, Greeks and Romans. The ancient Hindu Law recognized twelve kinds of sons of whom five were adopted. The five kinds of sons adopted in early times must have been of very secondary importance, for, on the whole, they were relegated to an inferior rank in the order of sons. Out of the five kinds of adopted sons, only two survive today, namely, the dattaka form prevalent throughout India and the kritrima form confined to Mithila and the adjoining districts. The primary object of adoption was to gratify the means of the ancestors by annual offerings and, therefore, it was considered necessary that the offerer should be as much as possible a reflection of a real descendant and had to look as much like a real son as possible and certainly not be one who would never have been a son. Therefore, the body of rules was evolved out of a phrase of Saunaka that he must be 'the reflection of a son'. The restrictions flowing from this maxim had the effect of eliminating most of the forms of adoption.2))

Object of adoption

The Hindu Adoptions and Maintenance Act, 1956, provides for adoption of children by Hindu parents. The main purpose of law of adoption is to provide consolation and relief to childless person. An adopted child is transplanted in the adoptive family, creating all rights and relationships as if the child was a biological child. On the other hand, all his rights and relationships cease in the natural family. As far as Hindus are concerned, adoption is to preserve the continuation of one’s lineage. Apart from the religious motives, secular motives are also important such as man's desire for celebration of his name for the perpetuation of his lineage, for providing security in the old age and for dying in satisfaction that one has left an heir to one's property.3)

Requisites of a valid adoption

Section 6 of the Hindu Adoptions and Maintenance Act, 1956 provides that

“No adoption shall be valid unless—

(a) the person adopting has the capacity, and also the right, to take in adoption;
(b) the person giving in adoption has the capacity to do so;
(c) the person adopted is capable of being taken in adoption; and
(d) the adoption is made in compliance with the other conditions mentioned in this chapter.”

A perusal of section 6 contemplates basic requisites of a valid adoption. Section 6 provides that no adoption would be valid unless the person adopting has the capacity and the right to take a child in adoption. Similarly, the person giving in adoption should have capacity to do so and the child should be capable of being taken in adoption apart from other condition as laid down in sections 7, 8, 9 and 10.

Capacity of a male Hindu to take in adoption

Section 7 of the Hindu Adoptions and Maintenance Act, 1956 provides as following—

  1. Any male Hindu who is of sound mind and is not minor has the capacity to take a son or a daughter in adoption.
  2. If the male Hindu has a wife living then he shall not adopt except with the consent of his wife unless:
  3. she has completely and finally renounced the world; or
  4. she has ceased to be a Hindu; or
  5. she has been declared by a court of competent jurisdiction to be of unsound mind.

A major Hindu male of sound mind can adopt, whether he is a bachelor, widower, divorcee or married person. However, if he is a married male, it is essential on the part of him to obtain the consent of his wife. An adoption made without the consent of the wife is void.

If a person has more than one wife living at the time of adoption, then the consent of all the wives is sine qua non for a valid adoption, unless either of them suffers from any of the disabilities, namely:

  1. she is incapacitated to give the consent by reason of her having completely and finally renounced the world; or
  2. her having ceased to be a Hindu; or
  3. she has been declared by a court of competent jurisdiction to be of unsound mind.

Capacity of a female Hindu to take in adoption

Section 8 of the Hindu Adoptions and Maintenance Act, 1956 provides that any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption. An unchaste woman, widow or divorcee also has the capacity to adopt. However, a married woman has no capacity to adopt. She cannot adopt even with the consent of her husband. If there is to be an adoption, it must be by her husband with her consent. The position is that a married woman totally lacks the capacity to adopt, except in the following situations:

  1. if the husband has completely and finally renounced the world; or
  2. if he has ceased to be a Hindu; or
  3. if he has been declared by a court of competent jurisdiction to be of sound mind.

Married woman’s right to adopt

Section 8 of the Act empowers any female Hindu who is an adult, of sound mind, and unmarried, to adopt a child in her own right. However, a married Hindu woman can only adopt, if the marriage has been dissolved or if the husband is dead, has renounced the world, has ceased to be a Hindu, or has been declared to be of unsound mind. A married Hindu woman cannot adopt a son or daughter to herself, even with the consent of her husband. The section laying down the capacity of a Hindu female to adopt does not include a married woman adopting with the consent of her husband.4)

Widow’s right to adopt

The Act contemplates the right of women to adopt who are single, but have attained the age of majority, a widow and a woman who has divorced her husband. It is usual that a widow adopts a boy to her husband and that nobody except a widow can make an adoption to her husband. In Sarkar Sastri’s Hindu Law, it is stated that though according to the commentaries, the widow adopts in her own right, the modern view is that she acts merely as a delegate or representative of her husband. That is to say, she is only an instrument through whom the husband is supposed to act.

Unmarried girl’s right to adopt

After the completion of the age of eighteen, a woman gets the capacity to adopt even though she herself is unmarried. Where after the adoption, she is married, her husband would be step-father and she herself would remain adoptive mother as earlier. Adoption by an unmarried girl can also take place despite the fact that she is having an illegitimate child.5)

About the Author

author Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.

1)
Bromley's Family Law
2)
See: Hindu Law by SV Gupte: referred to in Brajendra Singh vs State of MP, AIR 2008 SC1058; 2008 (2) ALD 105 (SC
3)
Philips Alfred Malvin vs YJ Gonsalvis, AIR 1999 Kerala 187
4)
Brajendra Singh vs State of Madhya Pradesh, 2008 (1) SCALE 372
5)
Ashoka Naidu vs Raymond, AIR 1976 Cal 272


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Created on 2021/02/21 10:36 by LawPage • Last modified on 2021/04/09 22:25 (external edit)