Before 1956, two ceremonies were considered to be necessary for a valid adoption under Hindu law. These are :
- The ceremony of giving and taking
- Datta hona.
There was a contraversy whether the latter was an obligatory ceremony. Under the modern Hindu Law, only the former is essential.
Ceremony of giving and taking
This ceremony is performed by the person who gives the child in adoption whether he is father, mother or guardian, and by the person who takes the child in adoption.
Section 11(vi) expressly lays down:” The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with the intention of transferring the child from the family of its birth or in case where the child is abandoned or whose parentage is not known ,from the family where it has been brought up to the family of its adoption.
The ceremony of giving and taking is indispensable and inseparable in modern Hindu Law.
The ceremony of giving and taking is necessary even when the person to be adopted is an adult.
The ceremony of giving and taking must be performed:
- By the giver and taker, or
- By any person under the authority of the giver and taker, as the case may be.
It should be noted that the performance of the ceremony can be delegated but not the power to give and take in adoption.
The power is to be exercised by the person who is entitled to give the child in adoption and the person who wants to take the child in adoption. It seems that no specific Shastric or customary ceremony is necessary.
Registration in adoption
Registration in adoption is not necessary and is not mandatory though the parties are free to enter into a registered deed.
Under section 16 of the Hindu Adoptions and Maintenance Act, 1956, a registered document of adoption raises a presumption that the adoption has been made in compliance with the provisions of the Act, and it would be presumed that necessary and important ceremonies have done and performed.
This presumption may be rebutted by the persons challenging the adoption.
Under section 16, the court shall presume that a valid adoption had been made, wherever a registered of adoption is produced before the court of law unless the other party disproves it.
If the registered document or deed is not signed by the natural father, no presumption arises under section 16.
If the adoption is itself is disapproved or when it is shown that the adoption deed is not executed voluntarily the presumption under section 16 is rebutted.
If an adoption is challenged long after it has been made and it has been recognised by all the members of the family as valid adoption, the burden to rebutt the presumption of valid adoption is very heavy on the person who challenges it.
If there is registered deed the onus is on the person who challenges an adoption.
The above mentioned two ceremonies are important under Hindu e for adoption and the person giving and taking the child in adoption must be adult of sound mind and there must be 21 years of age gap in case to adopt an opposite-sex child.
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