Hindu Family Law

Research paper on
Concept of “Adoption” in
India
Submitted by :
Sushmitha M Kusanur
20191BBL0094
BBA LLB (Hons)
Presidency University Bangalore

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SL NO TABLE OF CONTENTS PAGE NUMBER

1 ABSTRACT 3
2 INTRODUCTION 3
3 REVIEW OF LETERATURE 4
4 ANALYSIS 4
5 DISCUSSION 4
6 LIMITATIONS 5
7 SCOPE OF THE STUDY 5
8 CONCLUSION 6
9 BIBILOGRAPHY 6

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 ABSTRACT

The subject matter of this paper deals with comprehensive analysis of Adoption law in India. The practice of
Adoption is been followed since many decades but the law for adoption came in the 19th century. There are
various religions in India but there is no particular Adoption law governing the adoption of all religions. Till
now in India there is only one personal law governing Adoption i.e Hindu Adoption and maintenance act 1956.
In India religions like Muslims, Christians, Jews and Parsis do not have their own personal law governing
Adoption due to which they cannot adopt a child and give him/her his family name they can only become
guardian of child under Guardians and wards act 1890.The government of India have taken steps to make
Uniform law for adoption but there was failure. This paper focusses on Adoption laws which are governing
Adoption in India and how uniform civil code is necessary in area of Adoption.

INTRODUCTION

"Adoption is the foundation of a parent-child relationship through a lawful and social process other than the
birth procedure. It is a procedure by which a child of one arrangement of guardians turns into the child of
another arrangement of guardians or parent. Indian adoption approaches are etched, by quite a long while of
continuous endeavors by social change lobbyists and child welfare associations. This is clear from the laws and
approaches put forward by the Government of India. A later policy in the Section IV of the Juvenile Justice Act
of 2000 executed the idea of mainstream adoption whereby, with no reference to the network or religious
influences of the guardians or the child concerned, a privilege seems, by all accounts, to be conceded to all
subjects to embrace, and all children to be embraced.

(Friesendorf; Stoll) While this was a positive change, this idea still did not give the lawful and true blue status
to the child equivalent to that of a natural, honest to goodness child. Afterward, the Juvenile Equity (Care and
Protection of Children Act of 2006) cleared the issue, where the adoption was characterized as the procedure
through which the received child is for all time isolated from the organic guardians and turns into the genuine
child of the new parents with all rights, benefits and duties that are connected to the relationship. This
demonstration presented the articulation child needing consideration and security. Through this paper, our
motivation is to address the past, display, and the eventual fate of adoption in India. For that, one should first
get it more about the verifiable point of view of Indian adoption

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 REVIEW OF LITERATURE

In the book, “Adoption in India: Policies & Experiences‟ by Vinita Bhargava, it researches
child adoption in India and challenges prevalent in theories of adoption. In the book,
“Sociology of Adoption” by Elfreeda Momin, it states that Cultural Norms and practices
related to adoption varies from society to society. The book, “Child Rights in India
Challenges and Social Action” by Geeta Chopra, is a comprehensive compendium on child
rights in India from a child development perspective.

ANALYSIS

In India, there is a defined legal process that provides legitimate rights to both the adopted
child as well as adoptive parents. The objective of these enactments is to protect the rights of
an adopted child and transfers all the legal obligations and rights from the biological parents
to the adoptive ones. Indian citizens can adopt in India under three major legislations: Hindu
Adoption and Maintenance Act of 1956 (Hindus, Jain, Sikhs or Buddhists) Guardian and
Wards Act of 1890 (Foreign citizens, NRIs and Indian nationals who are Muslims, Christians
or Jews) Juvenile Justice Act of 2000 (a part of which deals with Adoption of children by
non-Hindu parents)

DISCUSSION

ADOPTION RULE IN HINDU LAW

Hindu law is the only law in India which treats an adopted child as being equal to a natural
born child. The reason for this is mostly because of the belief that a son was indispensable for
spiritual as well as material welfare of the family. Under the old Hindu Law, male was to be
adopted, restrictions were imposed based on Caste and Gotra. A female child could not be
adopted under the Hindu Law. Under the old Hindu law, only the male had a right to adopt
and the consent of his wife to the proposed adoption was immaterial.

But such restrictions have changed in the course of time. Such gender biases have been
minimized in today’s modern society. Under the modern Hindu Law, every Hindu, male or
female has the capacity to make an adoption provided he or she has attained majority and are
of sound mind. Most of these laws, rules and regulations have been enumerated in the Hindu
Adoption and Maintenance Act of 1956.

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 LIMITATIONS

Very strict rules – Domestic adoptions adhere to stringent guidelines and the eligibility of the
adoptive families is scrutinized very strictly. Deal with sudden change of mind of the mother
– The biological mother of the unborn child may suddenly change her decision to hand over
her child. Although there are legal restrictions, but the hopeful adoptive parents are often
faced with these swinging decisions. Delay or termination of the adoption – These changes in
moods or decisions, may lead to unprecedented delay and even termination of the adoption
process. Most often it is observed that such situations arise right at the final stages of the
adoption. Availability might be limited – It may so happen that fewer children are available
for adoption and adoptive parents may not inclined to adopt a child from the (any) minority
group.

The religion of the adoptive parent is not relevant;

Single people can adopt;

The adoption is irrevocable;

Some time limits have been set to ensure that children are considered legally free for
adoption earlier.

FUTURE SCOPE

Adoption is the institutionalized practice through which an individual belonging by birth to

one kinship group acquires new kinship ties that are socially and legally defines as equivalent
to the congenital ties. These new ties supersede the old ones either wholly or in part.

Child adoption in India has been a prevalent social practice from ancient times but with a
different perspective. Generally the view is that when an individual completely loses his
capability to conceive a child, then under that circumstance a child is being adopted. In the
past, a childless couple would ‘adopt’ a child from one’s own family. But now, it’s not like
this; adoption is not limited to relatives’ children. The people who adopt, their motives vary.
The primary consideration was the interest of the childless adoptive parents, namely, the
perpetuation of family name and lineage, protection in old age, performance of death rites
and salvation of the adoptive parents. Other motivations to adopt could be a desire to give a
home to a child who needs one, wanting a child of the other gender, or for the welfare of the

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destitute and abandon child. The adoption should be considered as a specialised child welfare
service which helps in meeting the needs and promoting the “best interests” of the child
without a permanent home or family able to provide care.

CONCLUSION
Adoption is one of the few concepts which have undergone a radical change in the course of
transit from primitive to modern age. Like most other social institutions, adoption is
essentially a product of historical and evolutionary process. Diverse economic needs and
social demands of the times have gone into shaping it through the successive ages. A study
through times provides an interesting view of its changing concept, form, objectives and
purposes. It is but natural that as the human thought progresses, the concept and organizations
of the social institutions advance and get refined. The various loopholes in the adoption laws
has proved to be a hinderence in the Adoption be it the poor laws the social taboo or the
bureaucratic hurdles. With the increase in the need of adoption and the increase in orphans in
the country there is a need for a uniform law as to adoption in India. Adoption is recognised
as such by Hindu family only not by the Mohammedon, Christian or Parsee law. Even so,
these religious communities are engaged in adopting children. Absence of any appropriate
legal provisions make them resort to the Guardianship and words act, 1890 under which only
a guardian of child can be appointed. But guardianship provides none of the advantages of
adoption. The natural parents can claim their child back at any moment from the adopter.
There is no security to the child as well. The adopter can throw the child out at any moment,
as in the absence of recognised adoption system, they are at best only guardians. Any
agreement made by the adopter is not binding on him/her regarding his property. Futures of
children of these communities thus stands jeopardized in the wake of inadequate law of
adoption. By enacting Uniform Civil Code it will also allow other religions to adopt a child
legally and it will also improve the social life of a children’s parents. A child will get proper
care and protection and he will have bright Future.
BIBILOGRAPHY

1.Derett DM. Hindu law past and present (1st edition, 1957,
148-149.
2.Bhargava, Vinita. Adoption in India: Policies and Experiences. SAGE, 2005.
3.Ananthalakshmi. Child Adoption and Thereafter: A Psycho-Analytical Study. 2001
4. https://www.latestlaws.com/articles/analysis-of-law-on-adoption-in-india-by-ekta-
kumari/#:~:text=If%20a%20biological%20child%20already,years%20older%20than%20the
%20child

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