CHAPTER III GIFT AND ACCEPTANCECHAPTER III GIFT AND ACCEPTANCE Under Hindu Law, the giving and receving are absolutely Necessary to the validity of an adoption. They are the operative part of the ceremony, being that part of it which transfers the boy from one family into another. But no particular form is insisted upon so far as giving and acceptance are concerned, The natural parent shall be asked by the adoptive parent to give his son in adoption and the boy shall be handed over by the natural father to the adoptive father. The physical act of giving away or of accepting the boy may be delegated to a third parly. Among Sudras, Datta Homam is not necessary to constitute a valid adoption. Among the regenerate classes, Datta Homam is necessary where the adoptee does not belong to the same gotra as that of the adoptive father in the absence of usage to the contrary, According to Section 11 (vi) of the Hindu Adoptions and Maintanance Act 1956, 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 abandoned child or the child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption. The Act has dispensed with the Performance of Datta Homam in respect of all classes. The physical act of handing over the boy or of accepting the boy may be delegated85 to a third party. The word child when read in relation to parents includes a major and a minor whereas when read in relation to the guardian it includes a minor only. Custom or usage permitting, a major can be adopted only with his consent but there should be actual giving and taking of such a major. Delegation of Authority Under Hindu law to constitute a valid adoption, there must be a gift and acceptance. An orphan cannot be adopted because there cannot be any lawful giving of him in adoption. The Act has remedied this defect by providing that 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. Under the Act a major orphan cannot be given in adoption because he has no guardian. To constitute a valid adoption, there must be a gift and acceptance. When the natural father is dead and the mother is living, she is the only person who can give in adoption. The Hindu law does not authorise the paternal grand-father ©r any other person to give in adoption. In the case of Vijiarangam et al v Lakshuman et al' a widow commissioned her uncle to hand over her son to the adoptive mother as she was unwell at that time to attend the ceremony herself. The Hindu law recognises the vicarious 1 (1871) 8. Bombay H.C.R. 24486 Performance of most legal acts. The object of the corporeal giving and receiving in adoption is obviously to secure due- publicity. It therefore held that the mother could appoint an agent to give the boy in adoption. In Shamsing v Santabai? a Hindu father had been converted to Muhammadanism. He had a son and it was arranged that the son should be given in adoption and he delegated his authority to his brother. It was held by the court that the delegation was lawful and that the adoption was lawful. In Behara Vijayamma and four others v Ayyagiri Veera Venkata Satya Suryaprakasa® a widow delegated her authority to an agent to Feceive the boy in adoption. It was held that if a natural father can lawfully authorize another to give his son in adoption, it must follow that the adoptive parent can delegate someone to accept the child in adoption on his or her behalf. A mother can give her child in adoption even where her husband is alive in the following circumstances (i) when he is permanently absent as for instance an emigrant or has entered a religious order (ii) where he has lost his reason provided the husband was legally competent to give away his son and has not expressly prohibited his being adopted. In Naga and others v Sukya and another‘ the plaintiff claimed to be the adopted son of one sajnya who died issueless. The defendants’ case was that the plaintiff's 2 (1901) 91.L.R. 25 Bombay 551 3 (1942) | L_R Madras 608 4 AIR 1953 Nagpur 23987 mother lived with Sajnya as his mistress and that the plaintiff was also maintained by him. The adoption was invalid as the plaintiff's mother could not give him in adoption without the consent of her husband who was alive. It was urged that as nothing was known about the natural father of the plaintiff except that he was alive, he should be treated as permanent absent and incapable of giving consent to the adoption ‘The natural father severed his connection completely from the adopt, and the mother of the adoptee. He was under the guardianship of his mother and not of his father. Four or five months before the adoption, the mother left her husband and was living with Sajnya as his mistress. The father did not raise any objection to the adoption of his son by Sajnya and for all purposes abandoned him, The law is that the wife cannot give away her son while her husband 's alive and capable of consenting with his consent. But she may do So after his death or where he is permanently absent. The Court observed: “It appears from the text quoted above that there is no absolute bar against the wife to give away her son in adoption without obtaining the consent of the husband who is alive. She can do so if the circumstances are such when it is not possible for her to obtain the consent."* “In the present case we are satisfied that the natural father did not expressly prohibit the adoption of the plaintiff. His 5 Ibid at p.24188 Whereabouts are not known. It can safely be presumed that the mother Could not obtain the sanction in the circumstances of the case. We, therefore, affirm the finding of the lower appellate court that the adoption of the plaintiff was valid”. The right to give in adoption results in the adoptee being deprived of the rights in the coparcenary Property and succession to the property of the parents. According to section 26 of the Hindu Succession Act, change of religion and loss of caste have long ceased to be grounds of forfeiture of properly and the only disqualification to inheritance on the ground that a person has ceased to be a Hindu is confined to the heirs of such convert. Where either one of the spouses has ceased to be a Hindu, the right to give Or take in adoption should not be given to the other party as it may Not augur well for the adoptee. The court's sanction should be made mandatory before adoption is effected. Even after conversion to another religion, the consent of that party should be made mandatory and where such consent is withheld on improper grounds, the intervention of the Court of competent jurisdiction may be made mandatory. Section 15 of the 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 the adopted child renounce his or her Status as such and return to the family of his or her birth. Section 15 6 Id at p.24t89 applies only to an adoption which has been validly made in accordance with the provisions of the Act after its commencement and it has no application to an adoption made prior to the coming into force of the Act. Section 30 of the Act says that nothing contained in the Act shall affect any adoption made before the commencement of this Act and the validity and effect of any such adoption shall be determined as if this Act has not been passed. Section 15 is confined in its application to an adoption made subsequent to the Act and it does not place a embargo on cancellation so far as an adoption prior to the Act is concerned. The Ceremony of Giving and Taking ‘The performance of the ceremony of giving and taking is a mandatory requirement for a valid adoption under the Hindu Law. The doctrine of factum valet is not applicable because the performance of the ceremony of giving and taking is mandatory and not directory. The doctrine of factum valet states that where a fact accomplished or an act is done in contravention of directory texts the fact will stand and the act will be deemed to legal and binding. Therefore there is no Scope of applying the doctrine of factum valet to adoption.The ancient texts are referred to in Mayne's Hindu Law? according to which Manu says “He whom his father or mother (with her husband's assent) gives to another is considered as a son given’. The Mitakshara says “He 7 11* Edition p.22690 who is given by his mother with her husband's consent while her husband is absent or after her husband’s decease or who is given by his father or by both being of the same class with the person to whom he is given, becomes his given son". The giving and taking are absolutely necessary to the validity of an adoption. But the Hindu Law does not prescribe any particular form of adoption. All that is required is that the natural father should be asked by the adoptive parent to give his son in adoption and that the boy should be handed over and taken for the purpose, Datta homam is the service of the burning of clarified butter which is offered as a sacrifice by fire by way of religious propitiation or oblation. The necessity of datta homam does not arise where the Child to be adopted belongs to the same gotra as that of the adoptive father. The use of datta homam is not necessary within that caste. The explanation is given by Strange as follows: ‘Ceremonial adoption cannot be necessary in the case of a Sudra, since by the datta homam the adopted son is offered from the stock (gotram) of the natural to that of his adopted father and Sudras have no gotra.”* The author of Dattaka Mimansa says that a son whose tonsure ceremony has been performed, in the family of his natural father cannot validly be adopted as a son given and as this ceremony ought to be Performed according to the author not later than the fifth year, no boy 8 ‘Hindu Law’ Volume 291 above that age is capable of being so adopted. In the earliest smritis, there is no such prohibition. The only restriction imposed by Manu is that the adopted son should belong to the same class or caste as his adoptive father. “He whom his father or mother with her husband's assent gives to another as his son, provided that the donee has no issue, if the boy be of the same class and affectionately disposed, is considered as a son given, the gift being confirmed by pouring water’! According to Dr. Gour “in ancient times, neither age nor marriage was a bar to adoption and an instance is frequently cited of the adoption of Sumah Sepha by Vishwamitra in the vedic age. The restrictions consequent on age and marriage are unquestionably innovations of a later age." Apart from the passage quoted from the kalika purana and adopted by the Dattaka Mimansa and a few other treaties, there is no ancient authority for the preposition that a child over five years of age cannot be validly adopted in the dattaka form. The Dattaka Chandrika quotes the disputed passage and adds: “As for what they quote thus from the puranas, that is unauthentic’ It then proceeds to state “Were it even authentic, the interpretations given by some, that one initiated in ceremonies down to that of tonsure under the family name of the natural father bears no filial relation to the adopter, but such relation obtains where the ceremonies commencing with that of tonsure are Performed by the adopter only, and if a child whose tonsure has been 9 Manu, Chapter IX 168, Jone's Translation 10 The Hindu Code p.33792 completed by the natural father or one past five years of age be adopted, in that case, the filial relation does not accrue, are inaccurate." Alternative interpretations are then given and in verse 30, the reference to the fifth year is said to apply only to Brahmins seeking the fruit of holiness resulting from a study of the Vedas. The translator of these two commentaries Setlur points out that the text of the kalika purana on which the limitation as to the age of the adopted son is based, has been held to be spurious by the author of Dattaka Chandrika and that all the High Courts and many of the modern text writers are agreed in holding that the Hindu law imposed no restrictions as to the age and whatever be the age of the adopted son, it is now settled that his adoption is valid, if made before Upanyana, if he belongs to any of the regenerate classes and before marriage if he belongs to the Sudra Caste." Nilkantha, points out that not much reliance is to’placed on the disputed passage as it is not found in two or three copies of the Kalika Purana.”? According to Sir Thomas Strange “The affiliation of one whose Coronal locks have not been reduced to the form of his patriarchal tribe is constantly inculcated. The age for this operation is the second or third year after birth but it may be extended to the eighth which among Brahmins is the general period of investiture except for such 11 Dattaka Chandrika Sec.2 Verse 25 12 Setlur’s complete collection of Hindu law Books on Inheritance p, 388. 13 Vyavahara Mayukha Chap. IV, Sec. T, para 2093 as are destined for the priesthood upon which it is performed at five. The stipulation therefore of five years as the extreme age for adoption may have reference to Brahmins of this description."* According to Rai Sahib Vishvanath Narayan Mandlik, a Sanskrit scholar of repute." The only text restricting the age is the one said to be the one from the Kalika Purana." He then refers to the authorities who have disputed the genuineness of the passage as spurious but even assuming it to be genuine explains it as referring to a son to be adopted by a king as his successor. The late Shastri Golab Chandra Sarkar in his Tagore Law Lectures strongly contends that even the Performance of the Upanayana ceremony in the family of the natural father is no bar to a subsequent adoption “It should however be observed that if you leave aside the passage in the Kalika Purana, the authenticity of which is doubted, then there is no authority in Hindu law for the proposition that any of the initiatory ceremonies must be Performed in the adopter’s family in order to cause filial relation, in other words that if all or any of the initiatory ceremonies for a person have been performed in a family of his birth, he becomes incapable of being adopted into any other family. The passage of Vasishta relied upon by the author of the Dattaka Chandrika does not lay down the rule that the Upanayana ceremony must be performed in the adopter's family nor can such a rule be fairly inferred from it. Nor is there any 14 Hindu Law Vol. |, p. 89, 15 Mayukha p. 47194 passage of law declaring that in the case of Sudras marriage is a bar to adoption.""* In Raja Makund Deb v Sri Jagannath Jenamoni,’” the question before the Patna High Court was whether putreshti jag sitting upon the beds is not absolutely necessary for validity of adoption. The appeliant relied on the decision in Luckman Lal v Mohanial"® to contend that the performance of the putreshi jag is essential to the validity of an adoption in the Dattaka form amongst the three superior classes. But it was held in Sheootan Rai v Bhirgun Rai’ that the putreshti jag ceremony was a matter of form and not essential fo an adoption. In Asita Mohan v Nirode Mohan,” the Calcutta High court held that the Putreshti jag was not an essential element in the ceremony of adoption but this was in the case of Sudras. The High Court in deciding the question referred to the following view of Sir Thomas Strange. ‘There must be gift and acceptance manifested by some over act. Beyond this, legally speaking, it does not appear that anything is absolutely necessary . and with regard to the sacrifice of fire, important as it may be deemed in a spiritual point of view, it is so with regard to the Brahmins only.”*' There is also a reference to the decision of Sir John Anstrother, C.J., in the case of the Raja Nobkissen.” “And even with 16 Sarkar’s Hindu Law of Adoption 2 Edition p.361 17 AIR 1923 Patna 423 18 (1871) 16 WR 170 19 (1917) 2 PL. 481 20 (1916) 20 C.W.N. 901 21 Sir Thomas Strange’s Hindu Law, vol | 95 22 Makund Supra note 17 at p.43095 regard to Brahmins, admitting their conception in favour of its spiritual benefit by no means follows that it is essential to the efficacy of the right for civil purposes but the contrary is to be inferred and the Conclusion is that its validity for these consists generally in the consent of the necessary parties the adopter having at that time no male issue and the child to be received being within the legal age and not being either an only or the eldest son of the giver, the prescribed ceremonies not being essential. Not that an unlawful adoption is to be maintained but that a lawful one actually made, is not to be set aside for an informality that may have attended its solemnization."> The above points were considered by the Patna High Court which held as follows. “Indeed, | think, though it may find place in the natural family of the adopted son, the necessity for the putreshti jag ceremony disappears. The necessity for its performance appears to be founded upon an ingenious interpretation of the questionable passage in the Kalika Purana as a means of explaining away that which did not commend itself as acceptable." Aurasa Son or legitimate, is one whom a man begets on his own wedded wife who is virgin at the time of marriage.* But nowadays the test of virginity is not insisted upon to give the status of an aurasa or legitimate son. Under old 23 Sir Thomas Strange's Hindu Law, vol | 95, 24 Raja Makund Deb Supra Note 17 at p. 430 25 Manu IX 16696 Hindu Law, only a male can be adopted. Under the Act, a female can also be adopted. This is a major departure from old Hindu Law as a result of changes in the social life. Section 11 of the Act deals with other conditions for a valid adoption. It does not consider the impact and amplitude of section 5(V) of Hindu Marriage Act, 1955 which states that a marriage may not be solemnized between any two Hindus if the parties are sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two. Mitakshara says: “He should marry a girl who is nonsapinda with himself. She is called his sapinda who has particles of the body of some ancestor ie. in common with him.” To take care of the provisions of section 5(v) of the Hindu Marriage Act, 1955, an amendment may be brought to the Adoption Act to the effect that a non sapinda belonging to the same caste as that of the adopter should not be adopted. In the alternative, it may be that a person who is said to be within the degree of Prohibited relationship within the meaning of section 3(g) of the Hindu Marriage Act, 1955 should not be adopted as otherwise the provisions of the two Act become irreconcilable. 26 Mayne's Hindu Law and usage Thirteen Edition