Essentials of a Valid Adoption under the Hindu Adoptions and Maintenance Act

Requisites of a Valid Adoption (Ss. 5 to 11):

S. 5 of the Act lays down that all adoptions made after the Act came into operation are to be regulated and governed by the provisions of the Act. If any adoption is made in contravention of these provisions, it would be null and void. Such a void adoption would neither create any rights in the adoptive family in favour of any person (which he or she could not have acquired but for such adoption); nor would it destroy the rights of any person in the family of his or her birth.

Four important requisites of a valid adoption are mentioned in S. 6, as follows:

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(a) The person adopting should have the capacity, and also the right, to take in adoption.

(b) The person giving in adoption should also have the capacity to do so.

(c) The person who is adopted should be capable of being taken in adoption.

(d) The adoption should be made in compliance with the other conditions mentioned in the Act.

The above requirements are cumulative, and all of them have to be complied with. Each of these four conditions is discussed below in greater detail.

(a) The person adopting should have the capacity, and also the right, to take in adoption. (Ss. 7 and 8)

Sections 7 and 8 bring about important changes in the Hindu law of adoption, and specify the persons who may lawfully take a son or daughter in adoption.

Under S. 7, any male Hindu of sound mind, and who is not a minor, can take a son or a daughter in adoption. If he has a wife who is alive, he cannot adopt without her consent, unless the wife-

(i) Has completely and finally renounced the world; or

(ii) Has ceased to be a Hindu; or

(iii) Has been declared to be of unsound mind by a Court of competent jurisdiction.

if such a person has more than one wife living at the time of adoption (as polygamy was not prohibited by Hindu Law prior to 1955), the consent of all the wives is necessary, unless the consent of any one of them is dispensed with for any of the three reasons referred to above.

As observed by the Madras High Court, the object of S. 7 is to complete abrogate the earlier customary Hindu law under which a male Hindu could foist the relationship of an adoptive mother upon his wife without her consent and sometimes, despite her objections. (Arumugha v. Valliammal, AIR 1969 Mad 72)

It may be noted that the consent of the wife need not be express consent, i.e., it can also be spelt out from the facts and circumstances of the case. Thus, if the wife has taken a prominent part in the adoption ceremonies, such an inference can validly be made.

Under S. 8 of the Act (as amended by the Personal Laws (Amendment) Act, 2010), any female Hindu who is of sound mind and is not a minor, has the capacity to take a son or a daughter in adoption. However, if she has a husband who is alive, she cannot adopt without the consent of her husband, unless the husband –

(i) Has completely and finally renounced the world; or

(ii) Has ceased to be a Hindu; or

(iii) Has been declared to be of unsound mind by a court of competent jurisdiction.

Under the previous law, only a male Hindu could take in adoption. This section brings about an important innovation, by providing that a female Hindu can also now adopt — provided she satisfies the conditions stated above. It is to be noted that this right is now also conferred on a widow.

(b) The person giving in adoption should have the capacity to do so. (S. 9)

S. 9 of the Act (as amended by the Personal Laws (Amendment) Act, 2010) deals with persons who can lawfully give a son or daughter in adoption. Only three categories of persons, viz., the father, the mother and the guardian are given this right. Further, it is also clarified that the terms “father” and “mother” do not include the adoptive father and the adoptive mother.

Under the amended section, both the father and the mother have an equal right to give a son or daughter in adoption. However, either of them cannot exercise this right except with the consent of the other spouse, unless such other spouse –

(i) Has completely and finally renounced the world; or

(ii) Has ceased to be a Hindu; or

(iii) Has been declared to be of unsound mind by a court of competent jurisdiction.

The guardian of the child has also been given the power to give a child in adoption, with the previous permission of the Court, in cases where-

(i) Both the father and mother-

(a) Are dead; or

(b) Have completely and finally renounced the world; or

(c) Have abandoned the child; or

(d) Have been declared to be of unsound mind by a Court of competent jurisdiction; or

(ii) The parentage of the child is not known.

It may be noted that a child can be given in adoption to any person, including the guardian himself.

It is also clarified that a “guardian” in this context, means a person having the care of the minor’s person, or of both his person and property, and includes-

(i) A guardian appointed by the will of child’s father or mother, and

(ii) A guardian appointed or declared by a Court.

Before granting such permission to a guardian, the Court will have to be satisfied that the adoption will be for the welfare of the child. As in the case of the appointment of a guardian, the child’s welfare is always the paramount consideration. For this purpose, the Court will also give due consideration to the wishes of the child, having regard to the age and understanding of the child. It will also ensure that the applicant has not received or agreed to receive (and that no person has made or given, or agreed to make or give to the applicant) any payment or reward in consideration of adoption, except such as the Court may sanction.

The Gujarat High Court has, in a case involving adoption of Hindu children by Norwegian couples, observed that the welfare of the child ranks in priority over all else, including religion of the child. It held that, in such cases, a petty contention like the change of religion or culture of the child cannot stand in the way of sanctioning any inter-country adoption. (Jayantilal Shah v. Asha Shah, A.I.R. 1989 Guj. 152)

S. 9, it will be noted, mainly re-affirms the law on the point prevailing prior to 1956. Under the prior law, only the father and mother could lawfully give a son in adoption. This section reiterates this, and goes a step further to provide that the guardian of the child can also give the child in adoption in specified cases, although only with the previous permission of the Court.

(c) The person who is adopted should be capable of being taken in adoption. (S. 10)

S. 10 provides that no person shall be capable of being taken in adoption, unless the following four conditions are satisfied, viz.-

(i) He or she is a Hindu;

(ii) He or she has not already been adopted;

(iii) He or she is not married unless there is a custom or usage applicable to the parties, which permits married persons being taken in adoption; and

(iv) He or she has not completed the age of fifteen years unless there is a custom or usage applicable to the parties, which permits persons over fifteen years being taken in adoption.

Under the previous uncodified law, only a male could be adopted, because adoption of a daughter was not recognised. Under this Act, it is amply clear that adoption can be both of a son as well as of a daughter.

Then again, prior to 1956, it was necessary that the adopted son belonged to the same caste as his adoptive father. In other words, a Brahmin could not adopt a Kshatriya or a Vaishya or a Sudra. This limitation is now abolished, and all that is now necessary is that both parties should be Hindus.

Clause (ii) above reiterates the rule of uncodified Hindu Law that a person can be given in adoption only once, and that the law will not recognise a second adoption of the same person.

Under the uncodified law, there was a difference of opinion amongst the various schools of Hindu Law as regards the age of the son to be adopted. This matter is now set at rest by clause (iv) above, which also contains a saving clause in favour of a custom or usage to the contrary.

Likewise, there was no consensus of opinion as to whether a married person could or could not be adopted. Clause (iii) above now settles this controversy, subject to a savings clause in favour of a custom or usage to the contrary.

Under the prior law, a further condition which had to be satisfied was that the person to be adopted could not be a boy whose mother the adopting father could not have legally married, as for instance, the daughter’s son, the sister’s son, etc. The present section, it will be seen, does not refer to any such disqualification.

(d) The adoption should be made in compliance with the other conditions mentioned in the Act. (S. 11)

S. 11 lays down six further conditions of a valid adoption. These vital rules are mandatory, and non-compliance with any of them will render the adoption invalid.

The first condition is that if a son is being adopted, the adoptive father or mother must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of the adoption. It will be noticed that the section speaks of a Hindu son. Thus, if there is only one son (and no son’s or son’s son’s son) and such a person had renounced Hinduism by a formal conversion to another religion, S. 11 will not come in the way.

The second condition is that if a daughter is being adopted, the adoptive father or mother must not have a Hindu daughter, or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of the adoption.

The third condition to be fulfilled applies only to cases where a Hindu male is adopting a female. In such cases, the adoptive father should be at least twenty-one years older than the girl to be adopted. There was no similar rule under the previous law, and S. 11 seems to have adopted it as a precautionary measure (for obvious reasons).

Under the fourth condition, if a Hindu female is adopting a male, the adoptive mother should likewise be at least twenty-one years older than the boy to be adopted. No similar rule existed under the previous law.

The fifth condition lays down that the same child may not be adopted simultaneously by two or more persons. This clause is in keeping with the previous rule of Hindu Law on the subject.

The sixth condition prescribed by S. 11 is that the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned (or under their authority), with intent to transfer the child from the family of its birth (or in the case of abandoned child or a child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption.

There is a two-fold reason why the law insists on a formal ceremony of “giving” the adopted child to its adoptive parents. The first is that there should be no mistake in the mind of either the natural father or the adoptive father that the child is being taken out of its natural family and being “transplanted”, so to say, in the adopter’s family. The second reason is that the formal “giving” of the child would make the fact of adoption known to everyone concerned. (Ramji Dass v. Manget Sen Kripa Ram, I.L.R. 1953 Patiala, 309)

Under the previous law, it was not well-settled whether the ceremony of datta homam (i.e., oblations of clarified butter to fire) was essential to the validity of a Hindu adoption. S. 11 now lays down, in express terms, that performance of datta homam is not essential for a valid adoption.

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