“Every child has a right to love and be loved and affection and of moral and material security and this is possible only if the child is brought up in a family. The most congenial environment would of course be that of the family of his biological parents. But if for any reasons it is not possible for the biological parents or other near relative to look after the child or the child has been abandoned and it is either not possible to trace the parents or the parents are not willing to take care of the child; the next best option would be to find adoptive parents for the child so that the child can grow up under the loving care and attention of the adoptive parents as the adoptive parents would be the next suitable for the biological one” Pertinent laws governing adoption are:-
- Hindu adoption and maintenance act 1956
- The guardians and ward act 1890
THE HINDU ADOPTION AND MAINTENANCE ACT 1956
Hindus believe that one who died without bearing a son would have to continue the cycle of life and death and those who bear a son can get “mukti” from this cycle as only the son has the power to perform rites for the parents. The ancient Hindu shastras recognised dattak as types of sons. In the shastras it is said that the adopted son or the dattak son should be considered as the clone of the son who should have naturally been born.
Keeping this philosophy in mind the “HINDU ADOPTION AND MAINTENANCE ACT 1956” was enacted under the leadership of our late PM Jawaharlal Nehru.
This act specifically dealt with the legal process of adopting children by Hindu adults and with the legal obligation of a Hindu to provide “maintenance” to various family members including their wives or parents and in-laws.
This law is applicable to all the Hindus and all those religions which are considered to be the sisters of Hinduism like Buddhism, Jainism and Sikhism. This act does not apply to a person who is not a Hindu such as a Muslim a Christian a Jews or a Parsi. This act also does not apply to the adoption prior the date of enactment of the Act.
REQUISITES OF A VALID ADOPTION
No adoption shall be valid unless:-
- The person adopting has the capacity and also the right to take in adoption.
- The person giving in adoption has the capacity of being taken in adoption.
- The person taking the adoption has the capacity to do so.
- The person adopted is capable of being taken in adoption.
- The adoption is made in compliance with the other conditions mentioned in this chapter.
WHO CAN ADOPT
A Hindu male
- Of sound mind and is not a minor and has the capacity to take a son or a daughter in adoption.
- If he has a living wife; her consent is very important and if he has multiple wives consent of all the wives is mandatory and the wife has clearly stated her consent.
The Supreme Court has decreed:-
“A HINDU ADOPTION IS NOT VALID UNLESS THE MAN TAKES PRIOR CONSENT FROM HIS WIFE AND THERE IS A “CEREMONY OF GIVING AND TAKING IN ADOPTION”
A Hindu female
- Of sound mind.
- Who is not a minor?
- Who is not married, of if married, 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 the court of competent jurisdiction to be of unsound mind
A married woman cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife.
WHO CAN GIVE FOR ADOPTION
- No person except the biological father and mother or guardian of the child
- The biological mother, may give the child in adoption, if the biological father is dead or of unsound mind or ceased to be a Hindu
- When both the parents are dead or have abandoned the child or have been declared by the court of unsound mind and where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.
- Before granting permission to a guardian the court shall be satisfied that the adoption will be for the welfare of the child.
WHO CAN BE ADOPTED
- He or she should be Hindu.
- He or she has not been adopted already.
- He she not been married or has not completed the age of fifteen years (unless there is a custom or usage applicable to the parties which permits person who are married being taken in adoption)
In Dundappa A/F Goudappa vs Sundrawwa w/o Rangangouda
though the plaintiff Dundappa was at the age of 15 years as on the date of his adoption in the year 1983, still his community practicing the adoption of a person above 15 years of age has permitted for such adoption and the evidence led before the Court below has proved that the plaintiff Dundappa has been adopted by the propositus Goudappa duly performing the rituals and ceremonies prevailing in their community.
OTHER CONDITION FOR VALID ADOPTION
- If any adoption is of a son the adoptive father or mother by whom the adoption is made shall not have a Hindu son, son’s son or son’s son’s son (legitimate blood relation or by adoption) living at the time of adoption and same goes for the daughter as well.
An issue arose before the Bombay high court in Payal vs. Indian adoption that whether a Hindu couple governed by Hindu adoption and maintenance act with a child of their own can adopt a child of the same gender under the provision of the juvenile justice act of 2000. When there is a conflict between the provision of Hindu adoption and maintenance act 1956 and juvenile justice act of 2000 it is the later act which would prevail following all the conditions of the later acts.
- If a male wants to adopt a female child, the adoptive father should be at least twenty one years older than the child and if a female wants to adopts a male they also should have a twenty one year of age gap
- The same child cannot be adopted by two or more persons simultaneously
- The child to be adopted must be actually given and taken in adoption by the parents or guardian.
In Gurdas v. Rasaranjan AIR 2006 SC 3275.
Adoption is made when the actual giving and taking had taken place and not when the religious ceremony is performed like Datta Homam. For a valid adoption, it would be necessary to bring on records that there has been an actual giving and taking Ceremony.
EFFECTS OF ADOPTIONS
An adopted child shall be deemed to be the child of his adoptive father or mother for all purposes. He/ she is the reflection of their natural children.
“Like a son born into the family, an adopted son is also entitled to succeed to the joint family property. He becomes a coparcener with adoptive father, but his relationship with the natural family is severed, including his status as a coparcener in the family of birth as laid down in Nagindas Bhugwandas v. Bachoo Hurkissondas, AIR 1915 PC 4”
- He cannot marry a person whom he/she could not have been married if he/she had continued in the family of his or her birth
- Any property which belonged to the person before adoption shall he his/hers even after their adoption they are also obligated to maintain relatives in the family of his or her birth.
- Child has to cut off all legal benefits from the family who had given him or her up for adoption.
RIGHT OF ADOPTIVE PARENTS TO DISPOSE OF THEIR PROPERTIES
In Sawan Ram & Others vs Kala Wanti & Others on 19 April, 1967 an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will.
Determination of adoptive mother in certain cases
When a Hindu whose wife is living, adopts a child, she shall be deemed to be the adoptive mother when the man has more than one wife the senior most wife is the adopted mother of the child adopted and others are deemed to be the stepmothers.
When a widower or a bachelor adopts a child the wife whom he marries subsequently shall be deemed to be the stepmother of the adoptive child same goes when a widow or unmarried child adopts a child the husband she subsequently marries shall be the stepfather of the adoptive child.
Valid adoption not be cancelled
No adoption is cancelled either by the adopted father of the adopted mother or the child who has been adopted if the adoption has been validly made.
Section 17 prohibition of certain payments No person shall receive or agree for any kind of payment or reward in consideration of the adoption and if someone’s indulging himself in this practice they are subjected to punishment of imprisonment which may extend to six months or with fine or with both. Muslims, Christians and Parsi do not have any particular act that governs their adoption proceeding.
Islam does not recognise adoption in Mohammad Allahabad khan vs. Mohammad Ismail; it was held that there is nothing in the Mohammedan law similar to adoption as recognised in Hindu system. But it is never discouraged to take care of an orphan but in no manner he/ she is a reflection of their own natural offspring’s. It is considered to be a blessing to take care of an orphan in Islamic law, if forbidden by Islamic law to adopt a child but permissible to take care of another child which is known as kafala which is translated into sponsorship.
Christians do not have the option of adoption in their respective personal law boards nevertheless in Phillip Alfred Marvin vs V.J Gonsalves, the court upheld the legal validity of an adoption undergone through the help of the church despite the absence of any law or custom, the court held that adoption was recognised under Christian law and the adopted child had same rights as that of a natural child.
Parsis personal law board also have no provision for adoption however a custom prevails among the Parsis known as the Palak where the widow of a childless Parsi can adopt a child after four days of her husband’s death so that certain religious ceremonies could be performed annually, this child acquires no property rights.
So to this problem of adoption Muslims, Christains, Parsis, Jews approach the court under the Guardians and Ward Act 1890 under this act Christians can take a child under the said Act only under foster care. Once a child under foster care becomes major, he is free to break away all his connections. Besides, such a child does not have legal right of inheritance.
MAIN PROVISION OF THE GUARDIAN AND WARD ACT 1890
- Applicable to all the children with no relevance to their race cast or creed
- Unlike Hindu adoption and maintenance act 1956 the guardianship and ward act does not grant equivalent status to the adopted child as that of the biological child of the adoptive parents
- Here the guardianship is only till the child is a minor. This relationship last only till the child attain the age of 21 after completing the prescribe age he/she will not remain as ward and will be considered as an individual identity
- Under this ast the child will only become a ward of his /her guardian parents; he will not become their own child however if the adoptive parent wishes to bequeath their property then they can do so by way which can later be challenged by any of their blood relations.
References:
Hindu adoptions and maintenance act 1956
Family law by paras diwan
Guardian and ward act 1890
About the author –
This article has been written by Aparna Mishra, 3rd Year B.A.LL.B (Hons.) student at The Maharaja Sayajirao university of Baroda.