What is adoption?
Adoption in literal terms means the act of accepting a relationship willfully. In legal terms, Adoption is the act in which a person willfully and by-laws accepts a relationship that is not by blood. Such relations are known as relation-by-adoption. For example, a child is adopted by married couples or unmarried singles where they treat the child as their own legitimate child.
In recent times adoption is very common and is like near to next-door things. People have started to treat it as a socially good thing and are also encouraged by the folks around. In early times only those people used to adopt who were not blessed with their child. But even today some people consider adoption as a menace as there is little or no information about the origin of an adopted child.
Laws of adoption in India
In India, there are various adoption laws for Hindus under which they are free to adopt a child unlike Christians, Parsis, and Muslims who are supposed to proceed under the Guardians and Wards Act, 1890 or Juvenile Justice (Care and Protection of Children) change Act, 2006 for any adoption as their personal law doesn’t have anything about adoption. Various laws available for Hindus are:
- Hindu Adoptions and Maintenance Act, 1956
- The Hindu Minority and Guardianship Act, 1956
- Juvenile Justice (Care and Protection of Children) change Act, 2006
- Guardians and Wards Act, 1890
- Central Adoption Resource Authority
Adopting any child as per laws in India is known as a legal adoption. Any child once adopted is known and brought up as one’s own child in society. The adopted son/daughter has the rights same as that own child of adopting parents. He/she has all the rights related to adoptive parents and also in terms of Maintenance, Succession, etc.
For adoption under the Guardians Act or Juvenile Justice Act, one has to move to the court for the authority of adopted child and parent but for adoption under the Hindu Adoptions and Maintenance Act, 1956, one has to move to an agency to get the certificate of adoption.
Who can adopt?
Any male or female, married or unmarried but of sound mind and above the age of 18 years can adopt a child.
Who can be adopted?
Under Hindu laws any child can be adopted who fulfills the following conditions:-
- The child is Hindu
- The child is not married
- The child is below the age of 15 years
- The child wasn’t adopted before.
Who can give for adoption?
As per the Hindu Adoptions and Maintenance Act, 1956, no person other than the father, mother, or the Guardian of the child has the capacity to give the child for adoption. Also, the father and mother if they are alive, both have equal rights to decide for adoption unless one of them has totally renounced the world or turned unsound.
If no mother or father is alive it’s the right of the guardian to give the child for adoption, with previous permission of the court to adopt the child himself or to give to any other person in adoption. Provided the court will give consent only when the adoption is for the welfare of the child.
Conditions for Adoption under the Hindu Adoptions and Maintenance Act, 1956
Under the Hindu Adoptions and Maintenance Act, 1956, Section 6 illustrates what are the requisites to be fulfilled for a valid adoption and they are:-
- Person adopting has the capacity to adopt and also the right to do so
- Person who is giving in adoption also has the right and capacity to do so
- Child adopted is capable of adoption
- Adoption is made in compliance with the other conditions mention in chapter II of the Act, 1956.
Adoption by a Hindu Female under Hindu Adoptions and Maintenance Act, 1956
Section 8 of the Hindu Adoptions and Maintenance Act, 1956 describes that in what capacity a Hindu Female can take in adoption. It says that- “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.” Which means that any female who is of sound mind i.e. not unsound and is above the age of 18 years i.e. not minor; then has the capacity as per law to take in adoption.
The section has provided certain other conditions as follows:-
- She is required to take consent of her husband if she is married.
- She is exempted from taking such consent if the husband has completely renounced the world or the husband is ceased to be Hindu or he has been declared of unsound mind by a court of competent jurisdiction.
The Supreme Court illustrated in a leading case of Ghisalal V. Dhapubai (AIR 2011 SC 644) that a female Hindu who is of sound mind and has completed the age of 18 years can take a son or a daughter into adoption in her own right and to herself. And also a female Hindu who is unmarried or a divorcee can also adopt a son to herself, in her own right with a condition that the woman has no living Hindu daughter or Son’s daughter at the time when she takes in adoption.
The Supreme Court of India also in the case of Smt Vijayalakshmamma & Anr. V. B.T. Shankar (2011 SC 1424) said that where a widow adopts a child, she need not take consent of co-widow because she adopts the child in her own capacity. After the death of her husband she can adopt a son or a daughter, with the only condition that she doesn’t have one of her own.
Other valid conditions of adoption for female adopting a son
1. Wherever a son is adopted, the adoptive father or mother must not have a Hindu son, son’s son or son’s son’s son, be it by legitimate blood relationship or by adoption that is living at the time of adoption. But if adopting father and mother wishes to adopt a son when they already have a son or a daughter where they already have a daughter, they can do so under Juvenile Justice (Care and Protection of Children) change Act, 2006.
In the case of In Re: Adoption of Payal @ Sharinee Vinay Pathak and his wife Sonika Sahay @ Pathak (2010 (1) Bom CR434) a petition was filed before the court where the Hindu couple governed by the Hindu Adoptions and Maintenance Act, 1956 who was having a natural child of their own could adopt a child of the same gender taking the course of Juvenile Justice Act. The court held that the Juvenile Justice Act has been enacted to take care and protection of children who are abandoned and who need care and protection and also said that the Hindu Adoptions and Maintenance Act, 1956 does not allow to adopt the child of same gender as adoptive parents already have but the two Acts must be read harmoniously. Therefore the court allowed the adoption if it fulfills the criteria mentioned under the Juvenile Justice Act.
2. When a son is adopted by a female it is necessary that the adoptive mother is at least 21 years elder than the child to be adopted and similarly where a male is adopting a daughter she shall be at least 21 years younger than him.
This was explained by the Bombay High Court in the case of Hanmant Laxman Salunke (D) by L.R.s V. Shrirang Narayan Kanse (AIR 2006 Bom 123) where the court held that provision of Section 11 requiring age difference between adoptive mother and adoptive son to be at least 21 years is mandatory in nature and not discretionary. The word “must” cannot be read as “may”. This breach is fatal to adoption.
3. According to Section 15 of the Hindu Adoptions and Maintenance Act, 1956; an adoption which was valid since its inception cannot be canceled or renounced by the adoptive father or mother or any other person. Even the adopted child cannot give away his status and return back to the family who gave him/her birth.
But under other personal laws like Muslim law, Christian law, Parsi law, etc there are few or no conditions given for the adoption of a child. So whenever they have to adopt a child they need to go to the court under the Guardians and Wards Act, 1890 where the adopting couples are not parents of the child but termed as mere Guardians. Also, the child after attaining the age of 21 years is a separate entity.
In the case of Muhammad Allahdad Khan and Anr. V. Muhammad Ismail Khan and Ors. Allahabad High Court said that if a Muslim person wishes to adopt, they can do so by giving an application to the court under the Guardians and Wards Act, 1890.
- The Hindu Adoptions and Maintenance Act, 1956
- Universal’s Bare Act- Hindu laws (2015)
- Modern Hindu Law (Dr. Paras Diwan)[23rd Edition Reprint-2017]
This article is authored by Swikritimala Dubey, LL.B.(Hons.) from Law College Dehradun, Uttaranchal University.
Also Read – Child Labour and Recognition of Child Rights in India