Professional Documents
Culture Documents
Muslim Law Adoption
Muslim Law Adoption
Adoption that took place in the 20th century was conducted in a very secretive manner. This
was done so as to avoid them being labelled as illegitimate. Ancient adoptions in the Roman empire
involved adult males and the aristocracy. Wealthy families that were sonless would adopt older boys
or men to provide them with male heirs.
Adoption in the present day context is a way to create or expand a family. This however wasn’t
always so, not all adoptions were beneficial to the child. While there were adoptive parents who
genuinely cared for and loved their adopted children, in ancient times adoptions were usually done
so for the purpose of slavery.
However the process of adoption has changed substantially in the last 100 years with laws
having been created so as to protect children being adopted to ensure that they are not adopted
simply for labour and profit. Today, adoptions are celebrated as a unique and diverse way to create
a family.1
Although no concrete evidence has been shown as how the concept of adoption came about in
hindu society, it has been assumed that the primary motive for doing so that there would be a
continuance of the line and solemisation of rites. Sons, in hindu culture, have always assumed an
important place. Mostly due to the fact that he continues the family name, which is considered to be
a matter of great prestige. Furthermore, a son has the exclusive power to perform certain rites, as
indicated by the Vedas. Important rituals such as the final burial, that is, the cremation ritual, can
only be performed by the eldest son.
Sons were also important with regards to preoperty rights, according to hindu traditions, the
son is the legal heir and the inheritor of the family ancestral property. He in turn passes on the
property to his son and so on so forth. And so started the practise of adoption in families that were
sonless. This was further accelerated by Brahmin priests who propagated the view that adoption of
sons in sonless families would lead to salvation not ust in the mortal world but in the afterlife as
well.
Before the enactment of the Hindu Adoption and Maintenance act, laws regarding adoption
in the hindu community was mostly regulated by religious texts like that of Manu, Vashistha,
Saunaka etc. Each with their own interpretation of what rules were to be followed with regards to
what adoption meant and what process must be followed in the process of adoption. However, laws
regarding adoption in the hindu community become uniform with the enactment of the hindu
adoption and maintenance act. and with the enactment came about changes in the fundamental
framework of the concept of adoption in hindu law.
It was revived again in 1944, one of the objects of the comitte was to eveolve a uniform code of of
Hindu Law by blending the most progressive elemts from different schools of Hindu Law. This was a
result of demands made by progressive sections of the hindu society which felt as though they were
oppressed by the orthodox section.2
It was decided that the bill should be split into separate parts, the hindu marriage act was passed in
may 1955, Hindu succession act in june 1956, the Hindu minority and guardianship act in august
1956, and finally the Hindu adoption and maintenance act in December 1956. These four
enactments have, in certain aspects, broken violently with the past by removing all existing
anomalies and incongruencies , and are characteristic of an age which is one of the great ideals and
fast-changing theories.
(i) To any person who is a Hindu by religion in any of its forms or developments, including a
Lingayat, or a follower of brahma., Prathna or Arya Sama;
(ii) To any person who is a Buddhist, ain or Sikh by religion; and
(iii) To any other person who is not a Muslim, 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 matters dealt with herein if this Act had
not been passed3
According to section 6 of the Act, the following are the requisites of a valid adoption:
(i) The person adopting should have the capacity and also the right to take in
adoption.
(ii) The person giving in adoption should the capacity to do so,
(iii) The person adopted should be capable of being taken in adoption and
2
HINDU LAW R. RK AGARWAL
3
Write the section of the bare act
(iv) The adoption should be made in compliance with other conditions mentioned in
this chapter (CHECK WHETHER CLAUSE IS A OR I)
4
AIR 2009 NOC 889 (P & H)
5
AIR 1982 Orissa 114
6
AIR 1997 P & H 280
WHO MAY GIVE IN ADOPTION
Section 9 of the Act, states that only the father or mother or the
guardian of the child has the capacity to give the child in adoption. It
has been clairifed that the terms “father” and “mother” do not
include the adoptive father and adoptive mother.
CAPACITY OF THE FATHER TO GIVE IN ADOPTION: if the father is alive, he shall alone have the right
to give in adoption, but such right shall not be exercised save with the consent of the mother.
CAPACITY OF THE MOTHER TO GIVE IN ADOPTION: the mother may give the child in adoption if the
father is dead or had completly anf finally renounced the world or has ceased to be a Hindu, or has
been declared unsound of mind by a competent court.
CAPACITY OF THE GUARDIAN TO GIVE IN ADOPTION: the guardian may give the child in adoption
with the previous permission of the court to any person including the guardian himself if: (a) both
the father and mother are dead (b) both the father and mother have completely and finally
renounced the world or (c) both the father and the mother have abandoned the child , or (d) both
the father and the mother have been declared by a court of competent jurisdiction to be of unsound
mind, or (e) the parentage of the child is not known.
But before a guardian is given permission to give the child in adoption, the court must be satisfied
that : (i) the adoption is for the welfare of tha child (ii) that the applicant for permisiion has not
received any payment to the applicant for consideration of the adoption of the child.
The Gujarat High Court in the case of Jayantilal shah v asha shah 7 which involved the adoption of
hindu children by a Norwegian couples , that the welfare of the child ranks in priority over all else
including religion of the child. In such cases a petty contention like the change of religion or culture
of the child cannot stand in the way of sanctioning any inter-country adoption.
section 10 of the Hindu Adoption and Maintenance act, 1956 lays down conditions that need to be
fulfilled in order for a person to be taken in adoption:
Under the act, both boys and girls can be taken in adoption. Prior to the Act, any
Hindu boy of any age could be adopted. As there had been cases in which younger widows
7
AIR 1989 Guj. 152
had adopted men much older than themselves, a provision had been made in the Act that a
person to be adopted must not be over 15 years