What Is Requisite of Adoption and Who Are Capable of Giving an Adoption?

Adoption

According to Manusmriti, adoption is defined as ‘taking someone else’s son and raising him as one’s own’. Adoption is a process that establishes the relationship between those who are not related by blood. It allows the parent less child, to have parents, and all the necessary things so that the child can lead a good life ahead, on the other hand, it enables childless parents to have a child of their own. It is a judiciary process 3+ which terminates the right of a child toward biological parents and creates new rights between the child and the adoptive parents.

Adoption in India

India is a secular country and has a different religion, India has 2 acts to deal with adoption under different religion. The Hindu Adoption and Maintenance Act, 1956 deals with the adoption of people who follow the Hindu religion, according to this act Buddhists, Jains and Sikhs are also considered as Hindu and will follow this act. Other religion like Muslim, Parsi, Christian and Jews will follow The Guardians and Wards Act, 1890 and will adopt a child according to it

Requisite condition for a valid adoption

According to section 6 of the Hindu Adoption and Maintenance Act, no adoption shall be valid unless these conditions are fulfilled[1].

1. The person adopting has the capacity, and also the right, to take in adoption.

Any Hindu male who is of sound mind, not a minor and is eligible to adopt a son or a daughter, but if she has wife then he can adopt only with the permission of his wife[2].

Any female Hindu, who is unmarried or if married, whose husband is dead or who has been divorced or if the court has declared her husband as incompetent for the marriage, she can go for adoption[3].

2. The person adopted is capable of being taken in adoption

As discussed above, in India there are 2 acts about adoption, The Guardians and Wards Act, 1890 and The Hindu Adoption and Maintenance Act 1956. There is some difference in both the acts upon the capability of a person to get adopted.

According to The Hindu Adoption and Maintenance Act 1956, anyone can be adopted who fulfills these conditions-

1. The child can either be a girl or a boy if he/she is a Hindu.
2. No one has adopted him/ her before.
3. He/ She is below 15 years.
4. The child is not married.

According to The Guardians and Wards Act, 1890 anyone can be adopted who fulfills these conditions-

1. Can be of any religion.
2. One who is minor (one who has not completed 18 years).
3. An orphan or abandoned or surrendered child.

3. Adoption should be made in compliance with the other conditions mentioned.

Apart from these conditions, there are some more criteria which should be fulfilled to adopt a child these are-

Adoption of a son

If anyone wants to adopt a son, they should not be any son, grandson and not even a great-grandson. If the person satisfies this condition then he can adopt a male son[4].

Adoption of daughter

If anyone wants to adopt a daughter, they should not be any daughter of his own, and should not have any granddaughter from his son at the time of adoption. Anyone who satisfies these conditions can adopt a daughter[5].

Adoption of opposite gender by single parent

If any Hindu male wants to adopt a girl child[6], he must be at least 21 years older than the girl child that is to be adopted[7] and he should also follow conditions given in section 7 of the act. If any Hindu female wants to adopt a boy child, she must be at least 21 years older than the boy child that is to be adopted[8].

4. The person giving an adoption must have the capacity to do so.

It is also important that the person who is giving an adoption must have the capacity to do so. Section 9 of the Hindu Adoption and Maintenance Act, 1956 deals with the question of who can give up a child for adoption. Its 5 sub clauses adequately lay down situations with the presence and absence of either or both biological parents.

It states that “No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.”[9] Here, the expressions “father” and “mother” do not include an adoptive father and an adoptive mother[10] but rather refer to biological parents. “The father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother 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.”[11]but if in case the father is dead or has been declared of unsound mind by any court or has renounced the earthly world or has ceased to be Hindu, then the mother can give a child for adoption.[12]

Subsection 4 says that “if both father and mother are not alive or if the court has declared them of unsound mind or if they have completely renounced the world, then guardian has a right to give a child for adoption, he can give the child to himself also so that guardian can become the parent of the child.[13] Before the court grants permission for this, it may satisfy itself by making sure, that the adoption will be for the welfare of the child and that the applicant for permission 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 the adoption except such as the court may sanction. [14]

Although, unlike the other sections, this section doesn’t expressly say that the biological parents or guardians should be Hindu. But, taking into account the preamble of the act, which says, “the act is one not merely relating to Hindus but also adoption among Hindus”, it can be assumed that the parents, as well as the guardian, should be Hindu.

Conclusion

Adoption has always been considered a sacred act in Indian society; it helps the parent less child as well as the childless parent. In India, anyone can adopt a child if he fulfills the condition given in  The Hindu adoption and maintenance act, 1956 if he/she is Hindu, Jain, Sikh or Buddhist and if a parent is of other religion, then he/she has to follow conditions given in The Guardians and Wards Act, 1890.

[1] Hindu adoption and maintenance act 1956, s 6.

[2] Hindu adoption and maintenance act 1956, s 7.

[3] Hindu adoption and maintenance act 1956, s 8.

[4] Hindu adoption and maintenance act 1956, s 11(1).

[5] Hindu adoption and maintenance act 1956, s 11(2).

[6] Hindu adoption and maintenance act 1956, s 7.

[7] Hindu adoption and maintenance act 1956, s 11(3).

[8] Hindu adoption and maintenance act 1956, s 11(4).

[9] Hindu Adoption and Maintenance Act 1956, s 9(1).

[10] Explanation to Hindu Adoption and Maintenance Act 1956, s 9.

[11] Hindu Adoption and Maintenance Act 1956, s 9(2).

[12] Hindu Adoption and Maintenance Act 1956, s 9(3).

[13] Hindu Adoption and Maintenance Act 1956, s 9(4).

[14] Hindu Adoption and Maintenance Act 1956, s 9(5).

This Article is Authored by Manas Shrivastava, 1st Year, B.A. LL.B, Student of National law university Odisha.

Also Read – Effect Of Valid Adoption Under Hindu Law