Adoption Rights And Capacity

The Shastric Hindu law has considered Adoption more as a ‘sacramental’ act than a religious one. But there has been an acute controversy among judges that whether in adoption the secular motive predominates or the religious one.[1] Some judges are of the opinion that the aim or the objective of adoption is two-fold :

  1. To secure performance of one’s funeral rites and
  2. To preserve the continuance of one’s lineage.[2]

There were many rules in the old Hindu law with regard to adoption. These rules could only be supported on the basis of adoption being a sacramental act. For instance, these rules were only applicable only on the following basis:

1) the adopted son must be a reflection of a son (saunaka): this ultimately prevented the adoption of orphans and illegitimate children;

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2) daughter could not be adopted and no one could have more than one adopted son;

3) one could not adopt a child whose mother one could not marry i.e. to say one could not adopt a daughter’s son or sister’s son as one could not marry one’s sister or daughter.[3]

It goes without saying that apart from the religious motives, the secular motives were also important which can include a man’s desire for the celebration of his name, the continuity of his lineage, for providing certainty, protection and security during old age and to be able to die with peace and satisfaction that his/her property is left to one’s heir.[4]

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There might be different reasons for adoption but the focus and main objective behind adoption is to provide consolation, comfort and relief to a childless person. In modern law, its purpose is not only to rescue the helpless, the destitute or the unwanted child but to also provide it with a home or parents. Whatsoever might be the reason, the court must not acquire into them.[5]

The Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the Act) has made adoption a secular institution and secular act so that even a religious ceremony is not required or necessary in order to institutionalize Adoption. In Nand v. Bhupindra, it was held that adoption which is validly made cannot be canceled by the adopter, natural parents, or any other person.[6]

The most common and essential requirement which is needed for a person to be capable enough to adopt a child is that the person must be a major i.e. to say he has completed 18 years of age and is not of unsound mind.

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‘Unsoundness of Mind’ can be described as general conditions of the mind. No adjudication of insanity by a court is necessary. The conditions of insanity including epilepsy, idiocy, and lunacy will come under ‘Unsoundness of mind’.[7]

Who can take in Adoption:

  1. According to Section 2 of the Act, it is applicable to following class of persons:
  2. Any person who is a Hindu by religion, including Virashaiva, a Lingayat or a follower of the Brahmo, Prathana or Arya Samaj,
  3. Any person who is a Buddhist, Jaina or Sikh by religion,
  4. Any other person who is not a Muslim, Christian, Jew or Parsi by religion.

The Section 6(i) of the Act provides that the person who is adopting not only has the Capacity but also has the Right to take in Adoption. This section basically provides the power to Adopt.

Adoption by a Hindu Male:

According to Section 7 of the Act, any male Hindu who is of sound mind and has attained the age of majority that is 18 years has the capacity to take in a son or daughter in adoption. The Hindu male can be a bachelor, widower, divorcee or a married person. But for a married person, it is essential for the Hindu Male to obtain consent from his wife, unless the wife has completely or finally renounced the world and has ceased to be a Hindu or has been declared by the Court to be of unsound mind.

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In case, the person has more than one wife, then he has an obligation to obtain the consent of all his wives.[8] The consent of the wife may be express or implied. e.g. If she is participating in the performance of the ceremonies of adoption, then her consent, in this case, is implied.

Adoption by a Hindu Female:

By the virtue of Amendment in Section 8 in 2010, the old Hindu law has bid adieu wherein the Hindu female whose marriage was in subsistence had no capacity to adopt even with the consent of her husband. Now, a married woman having a living husband can also adopt a child along with the due consent of her husband.[9] Now, this section has been made on the same lines as Section 7 which pertains to adoption by male Hindu, giving much-needed equality and empowerment to a female adopter also.

As per Section 8 of the Act, any female Hindu who can be an unmarried woman, widow or divorcee is of sound mind and is not a minor has the capacity to adapt. It was held in Vijayalakshamma v. B.T.Shankar[10], that where a widow adopts a child, she need not take the consent of the co-widow as she is adopting the child in her own capacity.

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A married woman can adopt a child whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption.[11]

Restrictive Conditions of Adoption:[12]

1. As per Section 11(i) of the Act, the Adopter or the person who is adopting must not have a Hindu son, son’s son or son’s son’s son whether by legitimate birth or by adoption. If the son, son’s son or son’s son’s son has ceased to be a Hindu then the adoption will be valid.

2. As per Section 11(ii) of the Act, if a Hindu wants to adopt a daughter, it is necessary that he must not have a Hindu Daughter or son’s daughter. This is a new provision as in old Hindu law adoption of a daughter was not allowed. If there is a living adopted daughter or son’s adopted daughter, then this will bar the adopter from adopting a daughter. But if she has ceased to be a Hindu, then the adoption can be validly made.

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3. According to Section 11(iii), it states that if a Hindu male has to adopt a female, then the adoptive father must be at least twenty-one years older than the person who is being adopted and as per Section 11(iv), if a Hindu female has to adopt a male, the adoptive mother mandatorily be twenty-one years older than the person who is being adopted.

4. Section 11(v) states that the same child cannot be adopted simultaneously by two persons i.e. to say two sisters, two brothers or two friends etc. cannot adopt the same child.

In modern Hindu Law, adoption has the effect of transferring the adoptee from his natural family to that of his adopter’s conferring on him the rights and privileges of the legitimate natural-born son’s rights. The adopted child loses all rights and privileges of a natural-born child in the natural family.[13] However, he gets a new family in the form of the family of the adoptive father or mother and is deemed to be a child of his or her adoptive father or mother for all purposes with effect from the date of adoption. This includes property rights as well as other incidental rights.

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The personal laws of Muslims, Christians, Parsis, and Jews do not recognize the concept of ‘adoption’. As non-Hindus, they do not have a law that enables them to adopt a child legally but whoever wishes to adopt a child can do so by taking the child in ‘Guardianship’ under the provisions of The Guardian and Wards Act, 1890.[14]

Conclusion:

The age difference between the adopter and the person being adopted has been deliberately kept twenty-one years in order to avoid any mishappening that is to say that the adopter does not take undue advantage of the adoptee and to obviate any sexual misgivings which may be the ultimate reason for adoption. Not only this, several amendments have been taken place in order to provide much-needed equality to women and to end the gender disparity which has been in existence since time immemorial. It may be noted that the adopted child gets the same rights and is subject to the same obligation as are applicable to a biological child vis-à-vis his/her parents and is at par for all practical and legal purposes.

[1] See Mayne, Hindu Law and usage ,(11Th Ed) 184-188.

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[2]Inder Singh v. Kartar Singh, AIR 1966 Punj 258

[3] Family Law by Dr. Paras Diwan; Chapter 25; Adoption under Hindu Law; Pg. 318

[4] Ibid

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[5]Shripad v. Dattaram, AIR 1974 SC 878

[6] AIR 1966 Cal 181

[7]Gopi v. Madan, AIR 1970 Raj 190.

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[8] Section 7 of the Hindu Adoptions and Maintenance Act,1956; Explanation

[9] The Personal Law (Amendment) Act, 2010

[10] AIR 2001 SC 1424

[11]http://www.legalserviceindia.com/articles/hmcp_adopt.htm

[12] Hindu Adoptions and Maintenance Act,1956

[13]  Family Law by Dr. Paras Diwan; Chapter 25; Adoption under Hindu Law; Pg. 319

[14]http://www.legalserviceindia.com/articles/hmcp_adopt.htm

This article is authored by Sonakshi Chaturvedi, Second-Year, B.A.LL.B. (Hons.) student at Maharaja Agrasen Institute of Management Studies, IP University.

Also Read –  Is Consent of the Husband Required for Adoption in India?

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