MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI.

FAMILY LAW I
SEMESTER-II
FIRST DRAFT
ADOPTION IN HINDU LAW AND ITS REQUIREMENTS.
NAME: SIDDHANT LOKHANDE.

ROLL NUMBER: 2017-054.

COURSE: B.A., LL.B.

SUBMITTED TO:

DATE OF SUBMISSION:23rd JANUARY 2018

LIST OF ABBREVIATIONS-

HAMA- Hindu adoption and maintenance Act,1956.

HSCA- The Hindu Succession Act,1956.

CARA- Central Adoption Resource Authority.

HMGA-The Hindu Minority & Guardianship Act, 1956.

HMGA-The Hindu Minority & Guardianship Act, 1956.

HDPA-The Hindu Disposition of Property Act, 1916.

GWA-The Guardians and Wards Act, 1890.

Sec- Section.

JJA-Juvenile Justice (Care and Protection of Children) Act 2006

INTRODUCTION-

In Hindu law utmost importance has been given to a son. As Hindu philosophers say man is
born with three debts, Debts to rishis, Debts to gods and, debts to ancestor. These debts are
discharged by giving a birth to a male child, who studies Vedas and offers sacrifice.

Great importance was given to a son as he saved his ancestors from going to hell, he also
continued his father’s lineage. It must have been that for this purpose that this custom of
adoption must have been devised. This adoption was limited only to male children, and
daughters were not adopted. This is clear evidence of patriarchal society’s dominance in
Ancient India.

Law of Adoption finds its origin in the ancient Hindu shastras. Adoption is a legally recognised
mode of affiliation as the son of a person, of one, who in fact was not his own child. It is the
act of a person taking as his lawful child a person who in fact is not his child. On adoption, ties
of the son with his old family are severed and he is taken as being born in the new family.

Hindus believed that one who died without having a son will go to hell. Also they think that
there is a particular division of hell or the infernal or the extremely annoying regions to which
childless persons are said to be condemned. It was son and only son who could save the father
from hell. This belief was one the reasons to beget a son. Another reason to have a son is that
the family line is continued by the son.

The object of having a son is twofold

1)the existence of son secured the parent’s beatitude (moksha).

2)he continues the family line.

Widows under the ancient law were not allowed to adopt sons, for their spiritual benefit and
therefore the adoption of a daughter was also not permitted. It was believed that widows
adopted sons only to divert the course of succession and religious motive was absent in such
adoptions. The new legislation of 1956 has come out successfully from the religious and
sacramental aspects of adoption and has made the institution of adoption a secular one.
Now according to the HINDU ADOPTIONS AND MAINTENANCE ACT,1956. the object
of adoption is three fold:-

 To secure performance of one’s funeral rites

 To preserve the continuance of one’s lineage.
 To have someone to take care of the property.

In India, adoption of children by Hindu adults is governed by the Hindu Adoption and
Maintenance Act, 1956 (hereinafter referred as “HAMA”). A Non-Indian Hindu male cannot
adopt under the provisions of HAMA. This law has been further supplemented with New
Adoption Regulations, 2017 framed by CARA (Central Adoption Resource Authority) as
mandated under section 68 (c) of Juvenile Justice (Care and Protection of Children) Act, 2015
which has come into force from 16th January, 2017.

Section 6 of the Act enumerates the requisites of a Valid Adoption

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

The person giving in adoption has the capacity to do so,

the person adopted is capable of being taken in adoption and

the adoption made in compliance with the other conditions mentioned in this Chapter

Therefore, no adoption is considered valid unless it fulfils the abovementioned conditions

under Section 6 of the Hindu Adoption and Maintenance Act, 1956. According Section 5 of
the Act, an adoption made in contravention of the provisions of Chapter II of the Hindu
Adoptions and Maintenance Act, 1956 is void.

Section 12 of Hindu Adoptions and Maintenance Act provides that after adoption, the adopted
child loses all its ties with the natural family and is treated like a born child in the adoptive
family. The adopted child is conferred with all the rights and privileges of a natural born child
in the adopting family. On the other hand, such a child loses all his rights and privileges of a
natural born child in the natural family. Section 15 of Hindu Adoptions and Maintenance Act
provides that “No adoption which has been validly made can be cancelled by the adoptive
father or mother or any other person, nor can be adopted child renounce his or her status as
such and return to the family of his or her birth.” Also, the New Adoption Regulations, 2017
framed by Central Adoption Resource Authority (CARA) are silent regarding
cancellation/revocation of adoption. Section 13 lays down that where there is no agreement to
the contrary, 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. Thus an adoptive parent is in no way
restrained in the disposal of their property by reason of adoption. Adoptive parent’s right to
disposing off his property is subject to an agreement to the contrary that might have been
entered into at the time of adoption between the adoptive parents and the natural parents on
behalf of the child for his benefit. Under the Act, thus, agreements restricting the power of
alienation of the adoptive parents is void.

IDENTIFICATION OF RESEARCH PROBLEM:

Who is a Hindu?

Why is there a need for special law for Hindus?

What is meant by adoption?

What is the necessary criteria to adopt?

Are widows allowed to adopt?

Who can give their children for adoption?

OBJECTIVES OF THE RESEARCH:

The study attempts to analyse the important dimensions of Hindu law. The main focus in Hindu
law is the adoption law. The researcher shall focus on the history of the origin of the concept
of adoption and also will critically examine the conditions of the adoption. The objectives of
the research are-

 To understand the legal definition of the word ‘Hindu.’

 To understand the need for special set of laws for Hindus.
 To understand meaning of adoption.
 To analyse the necessary conditions for adoption.
 To gain information on the people can adopt and who can give children for adoption.

METHODOLOGY-

The literature shall be collected by means of Secondary research. The reliance on primary
literature will be lesser or as compared to secondary literature as due to the scope and nature
of the project.
Secondary Research- The Researcher will be undergoing extensive research and study and
make an analysis based on the Secondary literature available through books, newspaper,
journals, thesis papers, articles and online sources, reports, case laws and legislation for the
same. All this shall be compiled and put together by the Researcher to present the topic.

LITERATURE REVIEW-

LEGISLATIONS

The Hindu Marriage Act, 1955 (24 of 1955),

The Hindu Succession Act,1956 (30 of 1956),

The Hindu Minority & Guardianship Act, 1956 (32 of 1956),

The Hindu Adoptions & Maintenance Act, 1956,

The Hindu Disposition of Property Act, 1916 (15 of 1916).

ARTICLES-

 Hindu law(https://www.britannica.com/topic/Hindu-law)

The article focuses on Hindu law and also tells us about evolution of Hindu law through
shastras. It focuses on origin of various customs and traditions and their evolution into law.

 Sources of Hindu Law: A critique

(http://www.legalservicesindia.com/article/article/sources-of-hindu-law-329-1.html)

The article analyses the sources of Hindu laws and also individually analyses each source.

 Personal laws and the Constitution

(http://www.thehindu.com/opinion/editorial/Personal-laws-and-the-
Constitution/article16074921.ece)

The Centre’s categorical stand that personal laws should be in conformity with the Constitution
will be of immense assistance to the Supreme Court in determining the validity of practices
such as triple talaq and polygamy. By arguing that such practices impact adversely on the right
of women to a life of dignity, the Centre has raised the question whether constitutional
protection given to religious practices should extend even to those that are not in compliance
with fundamental rights. This is what the article fundamentally talks about.
  Adoption: Under Hindu, Muslim, Christian And Parsi Laws
(http://www.legalserviceindia.com/articles/hmcp_adopt.htm)

Muslims, Christians and Parsis have no adoption laws and have to approach court under the
Guardians and Wards Act, 1890. Muslims, Christians and Parsis 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.
Foreigners, who want to adopt Indian children have to approach the court under the aforesaid
Act. In case the court has given permission for the child to be taken out of the country, adoption
according to a foreign law, i.e., law applicable to guardian takes place outside the country.

BOOKS

 Hindu Law-B.M.Gandhi ( 3rd Edition)

CHAPTERIZATION

A) HISTORY OF ADOPTION-

Adoption in ancient India was through DATTAKA SYSTEM.1 Ancient people think that laws
are the gifts of God and the discovery of the sages. This view appears to be similar to the
Ancient Hindu view that Brahma created Dharma as law.2 Kautilya in his Arthasastra has given
a classification of the different branches of learning namely Anviksiki, Trayi,Varta" and
Dandariiti. In this Anviksiki is the branch of study for logic. In Ancient European theory, law
is the embodiment of eternal justice.3

Manu, Yajnavalkya and Vasista define law as the practice of the Sistas or Sadacaras. Secular
law is also a branch of Dharma. In the Smriti literature the word, Dharma was used in a very
comprehensive sense. According to Katyayana, the etymological meaning of the word
Vyavahara indicates that removal of various doubts. In Ancient Indian Literature many records
say that the number of Smritis were about 100.4 Srdeal with a host of subjects such as domestic
rituals, customary rites, inheritance etc. Adoption is a breach of Vyavahara portion. The Smritis
like Manu, Yajnavalkya, Kapila, Lohita, Angira &Ankara strongly discuss about the law

1
Gaganpreet Kaur., Hindu adoption (Paradise Publishers) (2010)
2
Narahara Kurundakara & Madhukar Deshpande, Manusmriti (Sangam Books) (1994)
3
Id.
4
Gandhi B.M, Hindu Law
of adoption and inheritance of the adoption child. Anandadeva has compiled a vast digest called
Smrtikaustubha divided into several sections. The portion of Samskarakaustubha on the subject
of adoption is frequently cited as Dattadidhiti, is a treaty of great important and deserves to be
studies along with the Dattakamimamsa and Vyavaharamayukha and other similar works.5
Abbe J.A.Dubbois in his work about manners and customs of the Indian people in general has
given an exhaustive details regarding adoption based on his own observances and texts that
have come to his notice.6 Adoption is a process to incorporate a child permanently into a family
with all the rights of a natural child, in which he was not been born. The concept of adoption
as a welfare measure is of recent origin. Traditionally, a child was adopted for temporal and
spiritual purposes and more recently, to satisfy the emotional and parental instincts of the
adopters.( Adoption Law, D.C. Manuja).Manu says, 'by a son, a man attains victory over all
people; by a son's son heenjoys immortality; and after words by the son of that grandson he
reaches the solar abode. According to Arthashastra and other Ancient Jurisprudent texts, the
inheritance of a person is divided in various modes, i.e. by caste, categoryand pratiloma-
Anukuna sons. Here there is a discussion about the 12 kinds of sons.7 They are Aurasa,
Ksetraja, Dattaka, Putrikaputra, Krtrima, Gudaja,Apavidha, Kanlna, Sahodhaja, Knta,
Paunarbha and Svayamdatta.8 In the absence of Aurasa, Ksetraja equals to that place. After
these twosons, most of the Smritis give importance to Data otherwise called asDatrima or
Dattak.(Abbe J. A. Dubbois, Hindu Manners, Customs and Ceremonies).9In the Smritis
literature, the law of adoption was parent based and not child based. The Smrtikaras suggested
that only one son could be adopted for the continuation of the family line and to offer oblations
to the deceased ancestors. The Dharmasastras deals in detail with the qualifications of the male
child to be taken in adoption.The adopted son is uprooted from hisnatural family and
transplanted in to adoptive family like a natural son.10But at present the law of adoption among
Hindu is completely regulated by the Hindu Adoption and Maintenance Act of 1956. The whole
Smritis and Purina’s ordain that an only son shouldn't givenor received in an adoption. Another
common judgment is that, adoption should be done by caste or gotra based. Manu, Yajnavalkya
and other Smrtikaras declare that the sale and gift of children to be sinful. It points outthat the
practice of sale and gift of children in ancient India But the Smrtikaras recognized adoption.

5
Golapchandra Sarkar & Rishindra Nath Sarkar, Hindu law (S.C. Sarkar) (1947)
6
M. N Srinivasan, The Hindu law (Law Book Co.) (1957)
7
Kauṭalya. & L. N Rangarajan, The Arthashastra (Penguin Books India) (1992)
8
Id.
9
Ni ̄lakaṇṭha et al., Vyavahara mayukha, or, Hindu-law (Asian Publication Services) (1982)
10
Supra 6
(pl85. Indian Family Law vol.II,Adv. K. Sreedharavariar)11 In ancient Indian Jurisprudence
adoption ceremony (Dattahoma) is The age of adoption is also an important point in ancient
and modern jurisprudence.12 Most of the earlier law givers points out, the best time of adoption
are three to five years old. But Vyavaharamayukha permit an oldage adoption too. Under Hindu
Adoption and Maintenance Act 1956, anadoptive father is at least 21 years older than the person
to be adopted and admits an unmarried man or woman can adopt a child with the age difference
of 21 years. In ancient Indian Jurisprudence Adoption ceremony(Dattahoma) is the valuable
witness of the adoption Godavarma says that for the validity of adoption the adopter should
invite his relatives, Acaryas, King etc. Nowadays the District Court should have Jurisdiction
to conduct adoption proceedings. The Smrtikaras also discuss about the inheritance of an
adopted child. They say if a person takes a child as his own, he will be the authority or heir of
the whole properties. But if a boy is born after adoption, the adopted child is entitled for the
property. In the Vedic period of Indian law, Practice of adoption was not often resorted to the
failure of male offspring. The Hindu law of adoption is mainly founded on the religious belief
that a son is absolutely essential for spiritual salvation. In 1956 the Hindu Adoption and
Maintenance Act was passed to remove adoptionof child without judicial dicta. Any way issue
lessens is an unbearable mental affliction and it is same as the pain or grief of foundling.
Adoption may be given protection or dependence to this foundling. The legal adoption is valued
and permitted for ever. As per earlier historical accounts a natural born was taking to be the
sole representative of a man and acceptance of secondary sons by adoption - was downright
denounced. In this regard it is significant to note that ancient Hindus scriptures never
legitimized any son other than the natural born [aurasa] to be begotten by a man. The rejection
of adoption on the earlier annals of history can be evidenced from the following extract from
Rig Veda:"oh Agni, no son is he who spring from others," It even went to the extent o observing
that considering sons gotten by others as ones own was the "path of fools and such a child
should not be taken nor even be though of in the mind" this condemnation of secondary sons
is further manifest from the grihayasrtras, which provide the code for domestic rituals in the
ancient Vedic society, overtly excluded rituals for the taking of a secondary son. With the
advent of Dharmashastras, the institution of adoption eventually received societal acceptance
and became ingrained in Hindu mores there by altering the concept of son ship forever,"1.
Paras Diwan, Law of Adoption, Minority, Guardianship and Custody 2(Universal Law

11
Adv. K. Sreedharavariar., Indian Family Law vol.II,(1969)
12
Werner Menski, Role and ritual in the Hindu marriage (1984)
Publishers, 3rd ed. 2000)2.13 Rig-Veda VII,4, 7-83. Naresh Chandra Sengupta, Evolution
of Ancient Indian Law 138-139(Eastern Law House, 1953).14The Dharmashastras, in
particular, imposed myriad restrictions and ritualistic obligations to be performed prior to
undertaking the act of adoption. To illustrate a few, the adopted had to be, as a rule, a sapinda
implying that the person had to be related through some common ancestor of the individual
seeking to adopt. However, if a sapinda wasn't available, then a sagotra and if neither were
available then only one could15

adopt a bhinna – gotra sapinda. There were further precincts of caste andgotra imposed for
an adoption to be conferred legitimacy.1A primary reason for the evolution of adoption laws
in Hindu religion has been due to the importance Hindus attach to a male child. Every Hindu
was enjoined by scriptures to have his own natural born son (aursa putra), only failing which
he was permitted to have secondary sons. Moreover, only a male child could be adopted and
the taking of a female born was not accorded acceptance in early Hindu philosophy .A second
limb of justification for the ancient law prescribing for an exclusive male adoption could be
owing to the fact that the scriptures did not permit the wife or a daughter to perform the funeral
rites of a man or utter sacred texts, is as a result, she could not, in theory, redeem the deceased
from hell or save from the suffering of the after-life.16

B) ANALYSIS OF HINDU ADOPTION AND MAITENANCE ACT-

The Hindu Adoption And Maintenance Act is a progressive piece of legislation. It is so because
the Act is free from all religious and sacramental aspects of adoption. All that is required after
1956 is that the adoption in order to be void must conform to the requirement of thee ac. Thus
the performance of Dattak Homa, a religious ceremony is no more necessary. The act now
governs all the adoptions for to any person, who is a Hindu by religion in any of its forms or
developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prathana or
Arya Samaj,to any person who is a Buddhist, Jain or Sikh by religion.17 Hindu by religion
include practicing religion in any of its forms including Virashaiva, a Lingayat or a follower
of the Brahmo, Prarthana or Arya Samaj

13
Diwan Paras, Law of Adoption, Minority, Guardianship and Custody (Universal Law Publishers,3rd ed.)
(2000)
14
Sengupta Naresh, Evolution of Ancient Indian Law(Eastern Law House)(1953)
15
S Gajrani & Raj Pruthi, Law in ancient India (Commonwealth Publishers) (2014)
16
Id.
17
The Hindu Adoption And Maintenance Act,1956, No. 78, Acts of Parliament, 1956(India)
The Hindu Adoption And Maintenance Act is a progressive piece of legislation. It is so because
the Act is free from all religious and sacramental aspects of adoption. All that is required after
1956 is that the adoption in order to be void must conform to the requirement of thee ac. Thus
the performance of Dattak Homa, a religious ceremony is no more necessary.

Some of the main provisions of the Act relating to adoption are –

Hindus may adopt both male and female as their heirs. The old Hindu law did not permit giving
of daughters in adoption but the present Act enables a person to adopt a daughter if he so
desires. For purposes of adoption, whether of a son or of a daughter, the consent of a wife is
also necessary. The provisions of the Act are to override all existing customs, usage, texts, rules
or interpretations of Hindu law except as expressly provided in the Act. Moreover , any other
law in force immediately before the commencement of the Act shall seize to operate and apply
to Hindus as it would be inconsistent with the provisions of this Act. No person needs to be
divested of any property which had vested in his possession to the adoption by reason only of
the fact that subsequent to such vesting, the person has made an adoption. The adopted child
should not be the sole cause or reason for a person to be divested in him/her before adoption.
It will be possible for a person to adopt a child irrespective of his caste A Hindu widow may
adopt a child in her own name. Any adoption made after the commencement of the Act except
in accordance with the provisions of this Act will be void.

For any adoption to be void, the Act has made it mandatory for persons to satisfy the conditions
as mentioned in Section 618

The father, the mother or in both their absence, the guardian shall have the right to give the
child in adoption .

Under the old Hindu law , a son adopted by a Hindu widow was deemed to be her husband’s
son and the adoption was related back to the date of death of her husband. But under this Act,
the adoption is effective from the date on which the adoption is made.

Sec 2 – Applicability of the Hindu Adoption And Maintenance Act19

18
The Hindu Adoption And Maintenance Act,1956, No. 78, Acts of Parliament, 1956(India)
19
Supra 17
The Act extends to the whole of India except to the state of Jammu and Kashmir – vide Section
1 . According to Section 2, the Act applies to –

(a) to any person, who is a Hindu by religion in any of its forms or developments, including
a Virashaiva, a Lingayat or a follower of the Brahmo, Prathana or Arya Samaj,

(b) to any person who is a Buddhist, Jain or Sikh by religion, and

(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it
is proved that any such person would not have been governed by the Hindu law or by any
custom or usage as part of that law in respect of any of the matter dealt with herein if this Act
had not been passed.

Explanation to Sec 2 20–

The following persons are Hindus, Buddhists, Jains or Sikhs by religion, as the case may be:-

(a)any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or
Sikhs by religion;

(b)any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh
by religion and who is brought up as a member of the tribe, community, group or family to
which such parent belongs or belonged;

(b)any child, legitimate or illegitimate, who has been abandoned both by his father and mother
or whose parentage is not known and who in either case is brought up as a Hindu, Buddhist,
Jain or Sikh; and

(c)any person who is convert or reconvert to the Hindu, Buddhist, Jain or Sikh religion.

Section 5 – Adoptions to be regulated21 –

Section 5(1) has expressly stated that no adoption shall be made other than the commencement
of the fact by a Hindu or to a Hindu – except in accordance with the provisions contained in
chapter II of the Act. Any adoption made in contravention to the provisions of the Act shall be
void.

20
Supra 17
21
The Hindu Adoption And Maintenance Act,1956, No. 78, Acts of Parliament, 1956(India)
According to Section 5(2), an adoption which is void shall neither create any rights in the
adoptive family in favor of the adopted person nor destroy the rights of such person in the
family of his/her birth.

Sec 6 – Requisites of a valid adoption22

No adoption shall be valid unless-

(i) the person adopting has the capacity, and also the right, to take in adoption;

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in Chapter II.

Each of the conditions of a valid adoption are discussed as follows –

Capacity of the person to take in adoption – Sections 7 and 8

In order that adoption can be said to be valid in law it is necessary that the person adopting the
child has the capacity as well as the right to take in adoption.

According to Section 723 of the Act, every MALE Hindu who is of sound mind and not a
minor has the capacity to take in adoption. But if he has a wife living to take a son or daughter
in adoption, he cannot adopt, except if the wife –

a)Has completely and wholly renounced the world

b)Ceased to be a Hindu

c)Declared by a Court of competent jurisdiction to be of unsound mind.

Explanation to Section 7:

The section states that if a person has more than one wife living at the time of adoption, then
the consent of all the wives is compulsory for any of the reasons specified in this Section, as
mentioned above.

22
Id.
23
Id.
The expression “sound mind” has not been defined in this Act but under Section 12 of ICA,24
it means that the person making the contract, when he makes it, should be capable of
understanding it and forming a rational judgment as to its effect upon his interest. When wife
has renounced the world, it is not necessary to obtain her consent before adopting the child by
her husband. Renunciation is a tantamount to civil death.

Section 825 of the Act provides for the capacity of the FEMALE Hindu to take in adoption.
The Section lays down that any female Hindu has the capacity to , adopt who is of –Sound
mind

;Not a minor; Not married, but if she is married –

a)But her marriage has been dissolved

b)Husband is dead (widow)

c)Husband has completely renounced the world

d)Husband has ceased to be a Hindu

e)Has been declared by a Court of competent jurisdiction to be of unsound mind.

Under the old Hindu law, an unmarried female Hindu or a widow had no power or right to
adopt. A married woman, then, could not adopt even without the consent of her husband. If
there had to be an adoption, it would be in the name of her husband, made with her consent.
The position thus, is that a married woman whose marriage subsists, totally lacks the capacity
to adopt except in the following three cases –Husband has completely renounced the world

Husband has ceased to be a Hindu

Has been declared by a Court of competent jurisdiction to be of unsound mind.

Adoption by Widow26

Under the old Hindu law a Hindu WIDOW could not adopt a child in her own right. She had
no power to adopt except under the authority given by her deceased husband before his death
or with the consent of a Sapinda of her deceased husband. Under the old Hindu law, a son
adopted by the Hindu widow was deemed to be her husband’s son. But after the enactment of

24
Id.
25
Id.
26
Id.
this Act, no such authority is necessary for a widow who can now adopt as a matter of right.
She is not bound to make adoption and cannot be compelled to do so. Adoption by the widow
will come to the benefit of both the widow as also to her deceased husband.

Section 927-Who can give in adoption

The second condition to constitute the valid adoption is that the person giving the adoption
must have the capacity and right to give the child for adoption.

Giving and receiving of the adopted child are absolutely necessary to validate the adoption .
But the Act does not prescribe any particular form in which these might be carried out. For a
valid adoption all that the law requires is that there must be evidence of intention to transfer
child from the natural family to the adoptive family. The father of the child who is to give in
his child for adoption shall be asked by the adoptive parent and then the child is to be handed
over and taken in for that purpose. The provision relating to who can give in adoption is
envisaged in Section 9 of the Act. Under Section 9 (1) – only the father or mother or the
guardian of the child has the capacity to give the child in adoption . Section 9 (2) states in
explicit terms that the FATHER if alive alone has the right to give his child in adoption. But
such right cannot be exercised without the consent of the mother. However, at the same time,
this Section has provided that the consent of the mother need not be taken , where the mother
– has completely renounced the world

has ceased to be a Hindu

has been declared by a Court of competent jurisdiction to be of unsound mind.

Section 9 (3) empowers the MOTHER to give the child in adoption provided that the father of
the child – has completely renounced the world

has ceased to be a Hindu

Has been declared by a Court of competent jurisdiction to be of unsound mind.

Section 9 (4) of the Act gives authority to the GUARDIAN of the child to give the child in
adoption. According to this Section, the guardian may give the child in adoption with the prior
consent of the Court to any person including the guardian himself where both the parents of
the child –Are dead (orphan)

27
Id.
-Have completely renounced the world

-Have ceased to be a Hindu

-Have been declared by a Court of competent jurisdiction to be of unsound mind.

-Have abandoned the child

-Parentage of the child is unknown (foundling)

Prior permission of the Court necessary? Section 9 (5) lays down that before granting
permission to a guardian under Section 9 (4), the court shall be satisfied that the adoption will
be for the welfare of the child, due consideration being for this purpose given to the wishes of
the child having regard to the age and understanding 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.

Explanation to Section 9 28– states that for the purposes of this section-The expressions
“father” and “mother” do not include an adoptive father and an adoptive father and an adoptive
mother; “guardian” means a person having the care of the person of a child or of both his person
and property and includes-

(a) a guardian appointed by the will of the child’s father or mother;

(b) a guardian appointed or declared by a court; and

“court” means the city civil court or a district court within the local limits of whose jurisdiction
the child to be adopted ordinarily resides.

Section 1029-Capacity of the person adopted

The third necessary condition for valid adoption is that the person adopted is capable of being
taken in adoption. Section 10 deals with persons who may be adopted.Section 10 states that no
person shall be capable of being taken in adoption unless the following conditions are fulfilled,
namely:-(i) he or she is Hindu;(ii) he or she has not already been adopted;(iii) he or she has not
been married, unless there is a custom or usage applicable to the parties which permits persons
who are married being taken in adoption; (iv) he or she has not completed the age of fifteen

28
Id.
29
Id.
years, unless there is a custom or usage applicable to the parties which permits persons who
have completed the age of fifteen years being taken in adoption. Thus is general, the male or
female child must not have completed the age of 15 years at the time of adoption.

Section 1130-Other conditions

In every adoption, the following conditions must be complied with:-(i)Adoption of a son –

If the adoption is of a son, the adoptive father or mother by whom the adoption is made must
not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship
or by adoption) living at the time of adoption;

(ii) Adoption of a daughter –

if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made
must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or
by adoption) living at the time of adoption;

(iii)Male adopts a daughter –

if the adoption is by a male and the person to be adopted is a female, the adoptive father is at
least 21 years older than the person to be adopted;

(iv)Female adopts a son –

if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at
least twenty-one years older than the person to be adopted;

(v)Adopting same child by 2 different persons –

the same child may not be adopted simultaneously by two or more persons (does not refer to
if both persons are adoptive mother and father) ;

(vi)Intention to transfer –

the child to be adopted must be actually given and taken in adoption by the parents or guardian
concerned or under their authority with intent to transfer the child from the family of its birth
or in the case of an abandoned child or child whose parentage is not known, from the place or
family where it has been brought up to the family of its adoption: Provided that the performance
of datta homam shall not be essential to the validity of adoption. Every adoption implies an

30
Id.
element of free consent to the adoption, both of the persons receiving and giving the child in
adoption as well as the child being adopted if that child is a major on the date of adoption taking
place. If adoption was made by coercion, undue influence, fraud, misrepresentation, etc., then
the adoption is voidable at the option of the party whose consent was so caused. A lunatic child
may be validly adopted. Also, under the old Hindu law, though an illegitimate child was not
permitted for adoption , however, under the Act, such child can be validly adopted.

Effects of a valid adoption – Section 1231

An adopted child shall be deemed to be the child of his or her adoptive father or mother for all
purposes with effect from the date of the adoption and from such date all the ties of the child
in the family of his or her birth shall be deemed to be severed and replaced by those created by
the adoption in the adoptive family: Provided that- (a) the child cannot marry any person whom
he or she could not have married if he or she had continued in the family of his or her birth;(b)
any property which vested in the adopted child before the adoption shall continue to vest in
such person subject to the obligations, if any, attaching to the ownership of such property,
including the obligation to maintain relatives in the family of his or her birth; (c) the adopted
child shall not divest any person of any estate which vested in him or her before the adoption.

Relationship of adopted child – Section 14

Section 14 lays down as to how an adopted child will be related to certain relations of adopter.
The Section provides for the determination of adoptive mother in certain cases . The Section
lays down that – (1) Where a Hindu who has a wife living adopts a child, she shall be deemed
to be the adoptive mother. (2) Where an adoption has been made with the consent of more than
one wife, the senior-most in marriage among them shall be deemed to be the adoptive mother
and the others to be step-mothers.(3) Where a widower or a bachelor adopts a child, any wife
whom he subsequently marries shall be deemed to be the step-mother of the adopted child. (4)
Where a widow or an unmarried woman adopts a child, any husband whom she marries
subsequently shall be deemed to be the step-father of the adopted child.

Section 1532-Valid adoption not to be cancelled

31
Id.
32
Id.
Section 15 lays down that no adoption which has been validly made can be cancelled by father
or mother. An adopted child also cannot renounce his/her status as the adopted child and return
to the family of his/her birth.

ADOPTION FOR PEOPLE OF OTHER RELIGIONS:

As the name itself suggests, the Hindu Adoption and Maintenance Act were mostly the
guidelines for the Hindu society. Another law had to be made which was sensitive to the
personal laws of other religions which did not come under the Hindu Adoption and
Maintenance Act of 1956. This gave rise to the Guardians and Wards Act of 1890. The
Guardians and Wards Act, 189033was a law to supersede all other laws regarding the same. It
became the only non-religious universal law regarding the guardianship of a child, applicable
to all of India except the state of Jammu and Kashmir. This law is particularly outlined for
Muslims, Christians, Parsis and Jews as their personal laws don’t allow for full adoption, but
only guardianship. It applies to all children regardless of race or creed. Following is an
overview of the act:

It was stated that any child who had not completed 18 years of age was to be a minor. This
child would be appointed guardians by the court or any other appointed authority. They would
decide who would take place as the said child’s guardian or by removing another as a guardian.
All these procedures took place only after an application had been placed by the person who
was willing to take a child under himself and to act as his guardian. The applications should
contain all the possible information that would have been required, including the information
about the guardian and any reason as such for the guardianship. This was just the first step.
Once the court admits the application, a date for a hearing would be set. The court will hear
evidence before making a decision. Unlike in the procedures given in the Hindu Adoption and
Maintenance Act, 1956, where a person once adopted has a single set of parent, here a minor
and his property could have more than one guardian. It was required under these cases of
guardianship that the court use its discretionary power and considered the interests of the minor.
His/her age, sex, religion, the compatibility quotient with the guardian, the death of the parent,
etc. must be taken into consideration. The minor’s preference may also be taken into
consideration.

33
The Guardians and Wards Act, 1890, Act No. 8, Act of Parliament,(1890)
MUSLIM LAW

Adoption is a little different under Islamic law than the usual adoption practices that are
followed. The Islamic term for what is generally called adoption is kafala. Like everything else
in Islamic Law, the practice of adoption is highly regulated. A guardian/ward role is played
out rather than a parent. This relationship has specific rules. These rules are mainly to preserve
the integrity of the family line.

Adoption is certainly not prohibited. What is unlawful is to attribute one’s adopted child to
oneself, as if there is a biological relationship. This is because Islam seeks to safeguard
biological lineage and not confuse lineage.

There are a few rules in Islam surrounding the concept of Adoption:34

An adopted child retains his or her own biological family name (surname) and does not change
his or her name to match that of the adoptive family.

An adopted child inherits from his or her biological parents, not automatically from the
adoptive parents.

If the child is provided with property/wealth from the biological family, adoptive parents are
commanded to take care and not intermingle that property/wealth with their own. They serve
merely as trustees.

These Islamic rules emphasize to the adoptive family that they are not taking the place of the
biological family — they are trustees and caretakers of someone else’s child. Their role is very
clearly defined, but nevertheless very valued and important.

It is also important to note that in Islam, the extended family network is vast and very strong.
It is rare for a child to be completely orphaned, without a single, family member to care for
him or her. Islam places a great emphasis on the ties of kinship — a completely abandoned
child is practically unheard of. Islamic law would place an emphasis on locating a relative to
care for the child, before allowing someone outside of the family, much less the community or
country, to adopt and remove the child from his or her familial, cultural, and religious roots.

34
Adoption in Islam Islamweb, http://www.islamweb.net/en/article/135420/adoption-in-islam (last visited Feb
15, 2018)
This is especially important during times of war, famine, or economic crisis — when families
may be temporarily uprooted or divided.35

CHRISTIAN LAW AND PARSI LAW

The personal laws of these communities also do not recognize adoption and here too an
adoption can take place from an orphanage by obtaining permission from the court under
Guardians and wards act. A Christian has no adoption law.

Since adoption is legal affiliation of a child, it forms the subject matter of personal law.
Christians have no adoption laws and have to approach court under the Guardians and Wards
Act, 1890.36 National Commission on Women has stressed on the need for a uniform adoption
law. 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.

The general law relating to guardians and wards is contained in the Guardians and Wards Act,
1890. 37It clearly lays down that father’s right is primary and no other person can be appointed
unless the father is found unfit. This Act also provides that the court must take into
consideration the welfare of the child while appointing a guardian under the Act.

There is no specific statute enabling or regulating adoption among Christians in India. In the
absence of a statutory or customary adoption recognized by courts, foster children are not
treated in law as children. On death of the foster parents, their estate is distributed among legal
heirs of the intestate, to the detriment of foster children. Christians in India can adopt children
by resort to section 41 of the Juvenile Justice (Care and Protection of Children) Act 2006 38read
with the Guidelines and Rules issued by various State Governments.

35
Id.

36
TheHindu:Codifying personal laws, Thehindu.com (2018),
http://www.thehindu.com/2003/08/01/stories/2003080100521000.htm (last visited Jan 24, 2018).
37
Supra 33.
38
The Juvenile Justice (Care and Protection of Children) Act ,2006, Act no. 33, Act of Parliament,(2006)
BIBLIOGRAPHY

"Law And Religion: Law And Religion In Hinduism - Dictionary Definition Of Law And
Religion: Law And Religion In Hinduism | Encyclopedia.Com: FREE Online Dictionary".
2018. Encyclopedia.Com.http://www.encyclopedia.com/environment/encyclopedias-
almanacs-transcripts-and-maps/law-and-religion-law-and-religion-hinduism.

TheHindu:Codifying personal laws, Thehindu.com (2018),

http://www.thehindu.com/2003/08/01/stories/2003080100521000.htm (last visited Jan 24,
2018).

Adoption in Islam Islamweb, http://www.islamweb.net/en/article/135420/adoption-in-islam

(last visited Feb 15, 2018)

BOOKS

Gaganpreet Kaur., Hindu adoption (Paradise Publishers) (2010)

Narahara Kurundakara & Madhukar Deshpande, Manusmriti (Sangam Books) (1994)
Sengupta Naresh, Evolution of Ancient Indian Law(Eastern Law House)(1953)
S Gajrani & Raj Pruthi, Law in ancient India (Commonwealth Publishers) (2014)
Golapchandra Sarkar & Rishindra Nath Sarkar, Hindu law (S.C. Sarkar) (1947)

M. N Srinivasan, The Hindu law (Law Book Co.) (1957)

̣
Kautalya. & L. N Rangarajan, The Arthashastra (Penguin Books India) (1992)

Nīlakan ̣tha
̣ et al., Vyavahara mayukha, or, Hindu-law (Asian Publication Services) (1982)

Adv. K. Sreedharavariar., Indian Family Law vol.II,(1969)

STATUTES

The Hindu Adoption And Maintenance Act,1956, No. 78, Acts of Parliament, 1956(India)

The Guardians and Wards Act, 1890, Act No. 8, Act of Parliament,(1890)