CHAPTER-3

CODIFIED HINDU LAW OF ADOPTION

3.1 Hindu Code Bill

Before 1956 the Hindu Law of adoption was in uncodified form. The entire law

on adoption of a child by a Hindu was rooted in the Smrities, Sruties, custom. During

the British period some Acts were passed to reform the Hindu law. The Britishers had

not interference with the personal law of India , they left the personal matters which

were dealt in accordance with the respective personal law, which were claimed to be of

divine origin. The Britishers adopted non interference policy during this period in India

and for which there was a stagnation and no change in socio-legal was reflected in the

prevailing legal system.

The codification and reformation of the Hindu Law was first recommended by

the Hindu Law Committee consisted of four members in 1941, according to the

recommendation it could be achieve through Hindu Code, which aims to establish

gender equality by which social progress and reformation can be possible. In 1944 the

Committee was revived under the Chairmanship of Sir Benegal Narsing Rau.1 In 1945

the Rau Committee prepared the draft Hindu Code dealing with the Hindu personal

matters like marriage, adoption, maintenance, succession, minority and guardianship.

The draft Hindu Code prepared by the Rau Committee was widely circulated and it was

published in twelve religion languages in India. No significant steps were taken after the

1
AIR 1988, ‘Position of Hindu woman under the Hindu Adoption and Mintenance Act 1956’, by C.R.
Davda p. 55

76
submission of the draft Code till after independence.2 The orthodox section of Hindu

opposed this Bill.3 The Hindu Code Bill was introduced in the Legislative Assembly in

1947 immediately after independence under stewardship of the first Prime Minister

Pandit Jawaharlal Nehru and sent to the Ministry of Law B.R. Ambedkar for new

suggestions.4 After some modification the Bill was referred to a Select Committee of

the Constituent Assembly in 1948.5 In introducing the Code in the Constituent

Assembly B.R. Ambedkar reiterated the aim of the Bill which was to codify the rules of

Hindu Law and which were scattered in innumerable decisions of the High Court and

the Privy Council which form a bewildering motley to the common man.6 The main

direction of the codification is towards the twin goals of unification of the Hindu

community and uniformity of its personal law7.

The Select Committee submitted its Reports on the 29th August, 1948 and their

revised Draft was discussed by the provisional Parliament but no progress could be

made and it lapsed with the dissolution of the interim Parliament.8

Then the Government ultimately split the Hindu Code Bill into four separate

Bills related to Hindu marriage, adoption, inheritance of property, minority and

guardianship and thus come into existence the four major enactments of codified Hindu

2
Kumar Raj, Women & Law, 1st edn.,(2000) Anmol Publication Pvt Ltd. New Delhi, p. 30
3
Supra note 1
4
Supra note 2
5
ibid

6
ibid

7
Deva Indra,’ Sociology of Law’, edn. (2005) Oxford University Press, p.202
8
Supra note 1

77
Law – Hindu Marriage Act, 1955, Hindu Succession Act 1956, Hindu Adoption and

Maintenance Act 1956 and Hindu Minority and Guardianship Act 1956.9

The underlying principle of Hindu Law in the pre-independence era was

inequality, women were possessed inferior position in all matters governing personal

law like marriage, adoption, maintenance, inheritance and guardianship, during that

period women were dominated by the male, women were regarded only as a member of

family but they had no their own identity. The legislation on the personal matters such

as marriage, adoption, succession has a major impact on the status of women. To

achieve equality of sexes substantive changes have been made in the Hindu sacramental

law through these legislations relating to marriage, adoption, succession. 10

In the ancient Hindu Law only the male not the female could adopt a son. The

consent of the wife was not required. At that time the doctrine of relation back was

prevailed according to which a widow could adopt a son in the name of her deceased

husband and which shall take effect from the date of the death of the husband not from

the date of adoption. The Preamble of the Indian Constitution aims at to secure justice,

liberty and equality to all its citizen and good conscience. 11 To ensure this objective

Article 14 of the Indian Constitution provides equality clause according to which the

state shall not deny to any person equality before the law and equal protection of law.12

9
ibid

10
Anand CL, ‗Equality Justice and Reverse Discrimination’, edn.(1987) , Mittal Publication, p. 321

11
Preamble of the Constitution of India
12
Article 14 of the Constitution of India: “the State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India”

78
 Again Article 13(3)13 of the Constitution includes custom and usage under the

terms of law. According to Article 13(1) all law in force in India before the

commencement of the Indian Constitution shall be void to the extent to which they are

inconsistent with the provisions of Part-III of the Constitution of India.

The practice of adoption of a son in the ancient period is one of the good

customs of Hindu law. But this practice was not in consistent with the provisions of the

Constitution specially with Part-III of the Indian Constitution. It violates the equality

principle. The practice of adoption among Hindu made discrimination between male

and female. The female cannot adopt a child and the adopted child must be a boy not a

girl. From these aspects it can be expressed that there was no equality between male and

female during that time in respect of adoption.

3.2 Hindu Adoption and Maintenance Act, 1956

To remove the discrimination between male and female and to make conformity

with the Constitution, the Parliament of India has enacted the Hindu Adoption and

Maintenance Act in 1956. But this object is not specifically expressed by the Act.

Throughout the entire provisions of the Act, it depicts the provisions relating to the

abolition of the discrimination between male and female. Hindu Law of adoption is

governed by the Hindu Adoption and Maintenance Act 1956. This Act was passed by

the Parliament to reduce the discrimination between the male and female and to abolish

13
Article 13 of the Constitution of India—laws inconsistent with or in derogation of the fundamental
rights---
(1) All laws in force in the territory of India immediately the before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Parts, shall, to the
extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part
and any law made in contravention of this clause shall, to the extent of the contravention be
void.

79
the class division from the society. It amends and codifies the law relating to adoptions

and maintenance and gives overriding application to the provisions on the two subjects

contained in it. In the law of adoption it brings about some fundamental and important

changes and the result is that immediately on the coming into operation of the Act, the

law on the subjects of adoptions and maintenance hitherto applicable to Hindus whether

by virtue of any text, rule or interpretation of Hindu law or any custom or usage having

force of law ceases to have effect with respect to all matter dealt with in it. The Act also

supersedes the rules on the subjects of adoption and maintenance contained in any

Central or State enactment and any other law in force immediately before it came into

operation by enacting that all other laws shall cease to apply to Hindus in so far as it is

inconsistent with any provisions contained in the Act 14.

Hindu Adoption and Maintenance Act 1956 is the comprehensive statute

relating to Hindu adoption. As no date is fixed for the commencement of the Act, the

Act came into force on the date when it received the assent of the President i.e. 21st of

December,1956. This Act applies only to Hindu. The Hindu Adoption and Maintenance

Act 1956 is the cubling of two separate matters adoption and maintenance but there is

no such specific reason for the cubling of these two matters in the same statute.

14
Sharma Basant K.umar , ‗Hindu Law’, 3rd edn., (2011) , Central Law Publication, p.210

80
 The Hindu Adoption and Maintenance Act 1956 contains 4 Chapters in it, viz,

Chapter I (Section 1--------4) - Preliminary

Chapter II (Section 5-------17) – Adoption

Chapter III (Section 18-------28) – Maintenance

Chapter IV (Section 29-------30) – Repeal and saving

Chapter II and Section 30 in Chapter IV dealt with the law of adoption. This laid

down a new law of adoption with which the Act has replaced the whole of the old

Hindu Law and usages of adoption. It has prohibited adoption of children in any form

other than that provided for in its provisions.15

This Act is applicable to the entire territory of India except the state of Jammu

and Kashmir.16 According to the section 2, this Act applies to any person who is a

Hindu by religion in any of its forms or development, to any person who is a Buddhist,

Jain or Sikh by religion, a child legitimate or illegitimate whose parents are Hindus,

Buddists, Jains or Sikhs, a child legitimate or illegitimatre one of whose parents are

Hindu, Buddists, Jains or Sikhs and has been so brought up, an abandoned child

legitimate or illegitimate of unknown parentage brought up as a Hindu, Buddhists, etc.,

a person convert to Hindu, Buddhist, Jain or Sikh religion. The Act does not apply to a

person who is a Muslim, Christian, Parsi or Jew.

15
Mahmood Tahir, ‗Hindu Law’, edn. (1981) Law Book Com Sarder Patel Marg Post Box No. 1
Allahabad, p. 571

16
Section 1 (2) of the Hindu Adoption and Maintenance Act: ’It extends to the whole of India except the
State of Jammu and Kashmmir’

81
 The Act does not apply to those adoptions which were took place prior to the

date of enactment. Section 4 of the Hindu Adoption & Maintenance Act, 1956

supersedes the Law relating to Hindu Adoption as previously prevailed. Any Hindu

text, rule, interpretation of Hindu Law, Custom, usage having force of the law shall

ceases to have effect with all the matters which are dealt with by this Act.17

Again Section 5 of Hindu Adoption & Maintenance Act, 1956 provides that

adoption made in contradiction of any provision of this Act, after the commencement of

it, shall be regarded as void.18

So, we find by studying section 4 and 5 respectively that on the law of Adoption

the Hindu Adoption & Maintenance Act has an overriding effect. The Act is of

prospective in nature, it has no retrospective effect. A valid Hindu adoption made under

the provisions of ancient Hindu Law before the passing of the Hindu Adoption and

Maintenance Act, shall not be regarded as invalid if it contradicts any provision of the

Hindu Adoption and Maintenance Act. But if the adoption made prior to the Hindu

Adoption and Maintenance Act which is invalid adoption then that adoption shall not be

regarded as valid under the Hindu Adoption and Maintenance Act, 1956.

17
Section 4 of the Hindu Adoption and Maintenance Act: ‘Over-riding effect of Act- Save as otherwise
expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force
immediately before the commencement of this Act shall cease to have effect with respect to any matter
for which provision is made in this Act.
(b) any other law in force immediately before the commencement of this Act shall cease to apply to
Hindus in so far as it is inconsistent with any of the provisions contained in this Act’
18
Section 5 of the Hindu Adoption and Maintenance Act: ‘Adoption to be regulated by this Chapter-
(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in
accordance with the provisions contained in this Chapter, and any adoption made in contravention of
the said provisions shall be void.
(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any
person which he or she could not have acquired except by reason of the adoption, nor destroy the rights
of any person in the family of his or her birth’

82
 Illustration: adoption made by a male Hindu without the consent of his wife in

1951 and fulfilled all the requirement of the ancient law of adoption shall not be

regarded invalid as it has no conformity with the provision of Hindu Adoption and

Maintenance Act.

Illustration: Suppose, Mr. X , a Brahmin has adopted a male child who is of

Sudra caste in 1941. The adoption was invalid in accordance with the ancient Hindu

law, because the adopted parent and the child must be of the same caste as per the

provision of ancient law. The adoption is not treated as valid after enacting the Hindu

Adoption and Maintenance Act.

Section 6 of the Act provides four requirements of a valid adoption.19 First the

person wants to adopt a child must have the capacity and right to take a child in

adoption. Secondly, the person taking the child in adoption must have the capacity to

give. Thirdly the person adopted is capable of being taken in adoption . Fourthly, there

are other conditions as prescribed by the Act which must be fulfilled for a valid

adoption.

The rights and capacities of a male Hindu to adopt a child are provided by

Section 7 of the Act.20 It states that a male Hindu can adopt only with the consent of his

19
Section 6 of the Hindu Adoption and Maintenance Act----
‘Requisites of a valid adoption- 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 this
Chapter’.
20
Section 7 of the Hindu Adoption and Maintenance Act: ‘Capacity of a male Hindu to take in adoption-
any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in
adoption: Provided that, if he has a wife living , he shall not adopt except with the consent of his wife
unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be of unsound mind. Explanation- If a person has more

83
wife or wives. The Hindu male to adopt may be a bachelor or married. Consent of the

wife which is free from coercion, fraud, misrepresentation is mandatory for a valid

adoption by a male Hindu.

Section 8 lays down that a spinster, a divorcee; a widow can adopt a child in her

own name not in the name of her husband.21 During the life time of her husband, a

female can adopt only in certain cases when her husband becomes unsound mind,

ceased to be a Hindu, completely and finally renounce the world. But now Section 8 is

amended by the Personal Law (Amendment) Act 2010 and provided that whether she is

a married or unmarried, divorcee or widow can adopt with the consent of her husband.22

Previously only the father and mother had the right to give the child. Now as

provided by Section 9 besides father and mother the guardian can also give a child in

adoption.23 But the guardian‘s right to give is limited by the provision that he or she

than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent
of any one of them is unnecessary for any of the reasons specified in the preceding proviso.’
21
‘Section 8 of the Hindu Adoption and Maintenance Act: Capacity of a female Hindu to take in
adoption- Any female Hindu
(a) Who is of sound mind
(b) Who is not a minor
(c) Who is not married, or 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 a court of competent jurisdiction to be of unsound mind,
has the capacity to take a son or daughter in adoption’.
22
Section 3 of the Personal Law (Amendment) Act, 2010 Substitution of a new section for section 8:
‘Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in
adoption:
Provided that, if she has a husband living, she has not a adopt a son or daughter except with
the consent of her husband unless the husband 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’.
23
Section 9 of the Hindu Adoption and Maintenance Act-------
‘Persons capable of giving in adoption----
(1) No person except the father or mother or the guardian of a chid shall have the capacity to give
the child in adoption.
(2) Subject to the provision of [sub-sec(3) and (4)]the father if alive shall alone have the right to
give in adoption, but such right shall not be exercised save with the consent of the mother
unless the mother has completely and finally renounced the world or has ceased to be a Hindu
or has been declared by a court of competent jurisdiction to be of unsound mind.

84
must take permission from the court to give. Here the paramount consideration before

the Court is the Welfare of the child. The father has the absolute right to give in

adoption for this he must take the consent of his wife, consent of the wife to give in

adoption is mandatory. After the death of the father the mother can give. During the life

time of the father the mother cannot give except only under some circumstances, when

the husband becomes unsound mind, completely and finally renounced the world, he

ceased to be a Hindu. But the amendment to Section 9 provides equal right to both male

and female to give the child in adoption.24 After father and mother the guardian can give

a child.

To constitute a valid adoption the child must be a minor Hindu. Under the Act,

minor means who has not completed the fifteen years of age, has not already been

adopted, has not been married. By this provision the Act tries to remove the

discrimination between the male and female. Now a Hindu can adopt both girl and boy.

(3) The mother may give the child in adoption if the father is dead or has completely and finally
renounced the world or has ceased to be a Hindu or has been declared by a court of competent
jurisdiction to be of unsound mind.
(4) Where both the father and mother dead or have completely and finally renounced the world
or have abandoned the child or have been declared by a court of competent jurisdiction to be
of unsound mind or 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 under sub-section (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’
24
Section 4 of the Personal Law (Amendment) Act, 2010 Substitution of a new section for section 9: ‘In
the Hindu Adoption and Maintenance Act, in Section 9-
(i) for sub-section (2), the following sub-section shall be substituted, namely:-
“(2) Subject to the provisions of sub-section (4), the father or the mother, if alive, shall have equal
right to give a son or daughter in adoption:
Provided that such right shall not be exercised by either of them save with the consent of the other
unless one of them has completely and finally renounced the world or has ceased to be a Hindu or
has been declared by a court of competent jurisdiction to be of unsound mind.”
(ii) Sub-section (3) shall be omitted.

85
The child may not be of the same caste with that of the adoptive parents, but prior to

this enactment same caste with that of the adoptive parents must be required.

Again this Act has for the first time introduced the age difference between the

adopter and the adopted child. If the adopter and the child are of the same sex then there

must be twenty – one years of age difference between them.25 Again it is provided by

Section 12 that if the adoption is of a son then the adopter must not have a son, son‘s

son, son‘s son‘s son. If he or she wants to adopt a daughter then he or she must not have

a daughter or son‘s daughter.26 The same son or daughter must not be simultaneously

adopted by two or more person.27

For a valid adoption the ceremony of Datta Homom is not required. Only actual

giving and taking of the child is required for the valid adoption. For adopting a child

the adoptee must have the intention to take the child in adoption. After adoption the

adopted child is regarded as the child of the adoptive family.

After the Hindu Adoption and Maintenance Act, 1956, came into force there is

no room for any customary adoption. Section 4 of the Act specifically provides that any

text, rule or interpretation of Hindu Law or any custom or usage as part of that law in

force immediately before the commencement of that Act shall cease to have effect with

25
Section 11 (iii) of the Hindu Adoption and Maintenance Act 1956: ‘if the adoption is by a male and the
person to be adopted is a female, the adoptive father is at least twenty-one years older than the person
to be adopted’.
Section 11(iv) of the Hindu Adoption and Maintenance Act 1956: ‘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’.
26
Section 11(i) of the Hindu Adoption and Maintenance Act 1956: ‘if the adoption is of a son, the
adoptive father or mother by whom the adoption is made must not have a son, son’s son or son’s son’s
son (whether by legitimate blood relationship or by adoption) living at the time of adoption’.
Section 11 (ii) of the Hindu Adoption and Maintenance Act 1956: ‘if the adoption is of a daughter, the
adoptive father or mother by whom the adoption is made must not have a daughter, son’s daughter
(whether by legitimate blood relationship or by adoption) living at the time of adoption’.
27
Section 11 (v) of the Hindu Adoption and Maintenance Act 1956: ‘ the same child may not be adopted
simultaneously by two or more persons’.

86
respect to any matter for which provision is made in that Act.28 So, the question of any

customary adoption as was in force in Punjab before that Act came into force, does not

any longer arise.

3.3 Comparison of Hindu Adoption and Maintenance Act, 1956 with

the ancient Hindu Law of Adoption

Law relating to Ancient Hindu Law of Hindu Adoption and

Adoption Maintenance Act, 1956

1.who can adopt a child Only a male could adopt a Both the male and female

child of another. Female who has attained the age of

had no right to adopt the majority and who is of

child of another. sound mind can adopt a

child of another under

Section 7 and 8 of the

Hindu Adoption and

Maintenance Act.

2.Consent of the wife The consent of the wife Consent of the wife is very
much required to adopt a
was not required to adopt a
child by the husband.
child of another.
(Section 7)

3.Guardian right to give the Besides father and mother , According to Section 9

child in adoption no one has the right to give besides father and mother a

28
Supra note 17

87
 the child in adoption guardian also has the right

to give the child.

4.Eligibility of a child to be Only a son, not a daughter Both the male and female

adopted could be adopted. Because can be adopted.

it was only through a son a

Hindu can attain salvation

and a family can continue.

There is no minimum age The child must not be

limit of the child to be above the age of fifteen

adopted. years.

He may be married. He must not be a married.

The child must be of the The child may be an

same gotra with that of the orphan.

adoptive parents.

Illegitimate child could not Illegitimate child can be

be adopted. adopted.

5. Rites and ceremonies for Performance of datta Performance of datta

the valid adoption homam is required for a homam is not required.

valid adoption. Only the ceremony of

actual giving and taking the

child is required for the

88
 valid adoption.

6. After born child An adopted child was not An adopted child can

entitled equal share from entitled equal share with

the adoptive family with the natural child born

the natural born child subsequent to the adoption.

subsequent to the adoption

7. Form of adoption Various form of adoption Form of adoption are

were prevailed like— abolished.

kritrima, Punjab customary

adoption and

dwyamashyayana.

The types of sonship are

8. Different types of Twelve types of sonship
abolished.
sonship were prevailed.

Section 11 (III) and (IV) of

9. Age gap between the There was no age gap
the Hindu Adoption and
adoptive parent and between the adoptive
Maintenance Act provides
adopted child parent and the adopted
twenty-one years of age
child.
difference between the

adoptive parent and the

adopted child if they are of

the different sex.

89
10. Doctrine of relation Doctrine of relation back Doctrine of relation back is

back was prevailed. abolished by Section 12 of

the Hindu Adoption and

Maintenance Act.

3.4 Valid Adoption

Section 629 of the Hindu Adoption & Maintenance Act, 1956 lays down the

essential requirements of a valid Adoption which are mandatory and not merely

recommendatory. Non compliance of the any of the requisites shall be regarded as Void

as reveals by the opening words of Section 6 – ―No adoption shall be valid.‖

The requirements as provided by the said Section are-

3.4.1 Capacities and rights of the adopter

This first requirement of a valid adoption is provided by section 6 (i) of the Act,

which is the combination of Section 7 and 8. These two sections provides separately the

capacity of a male Hindu and female Hindu to take a child in adoption. Section 6 (i)

provides that to take a child in adoption a person must possess the capacity as well as

right to adopt. Only capacity is not enough to adopt the right is also required, in this

regard the capacity and right are two different things.

Illustration: A Hindu who is of sound mind and who has attained thirty years of

age is capable to adopt a child under Hindu Adoption and Maintenance Act. But if the

child whom he wants to adopt is thirteen years old a girl child, then the person has no

29
Supra note 19

90
right to adopt that girl child as because there should be twenty one years of age

difference between the adopted child and adoptive parent if they are of different sex as

per the provision in Section 11 (iii) and 11(iv) of the Hindu Adoption and Maintenance

Act.

The right of a male & female to take a child in adoption are discussed in Part II

of the Act. The capacity of a male & female Hindu to take a child in adoption is

provided by section 7 and 8 of the Act respectively. The object underlying these

Sections is to completely abrogate the ancient Hindu Law of adoption, according to

which a male Hindu alone could take a son in adoption to himself in order to continue

his lineage. A female had no right to take a son in her own name but a widow could

adopt not in the name of herself but in the name of her deceased husband and the

adopted child belonged to her deceased husband by the doctrine of relation back.

The adoptive parents must be of sound mind and must attain the age of majority-

Since the practice of adoption is a very sensitive issue, so to possess the capacity

to take a child in adoption, the adoptive parent must be of sound mind. To adopt a child

the adoptive male and female parents must be of sound mind in accordance with the

provision of Section 7 and Section 8(a) of the Hindu Adoption and Maintenance Act

1956. So far as the ancient Hindu Law on adoption is concerned the soundness of mind

was necessary to take child in adoption. An adoption by a lunatic or an idiot who cannot

understand the nature and effect of this act, cannot be considered as a valid adoption

unless it is shown that it was made during a lucid interval. 30 A person shall be declared

to be of unsoundness mind due to various causes like sickness, old age, lunacy, mental

30 th
Mishra Ranganath, Mayne’s ‘Hindu Law and Usage’, 16 edi., (2009) Bharat Law House, New Delhi, p.
578

91
disorder resulting from any disease. The soundness of mind of a person can be

determined by the test of whether he able to understand the nature of the act and its

implication. Any abnormality such as epilepsy, idiocy and lunacy are included in the

concept of unsoundness of mind.

In Babu Barelal V. Gulzari Devi31 it was held that the burden of proof is vested

upon him or her who makes a challenge on the validity of an adoption on the ground of

unsoundness of mind. It is not mandatory that the court have to adjudicate a person to

be of unsoundness of mind.

For a valid adoption the male & female who want to take a child in adoption

must not be a minor he must attain the age of majority according to Section 7 and 8(b)

of the Act. According to Section 3 (c)32 of the Act a person below the age of eighteen

years shall be regarded as minor. So after attaining majority i.e. completion of eighteen

years a person can adopt a child.

But here we have to mention that this is not the age of minority under the

Indian Majority Act, 1875 and the guardian and wards Act, 1890. Under these

enactments a person is said to attain the age of majority after the completion of the age

of twenty – one years of age. So a female Hindu above eighteen years below twenty –

one years of age can adopt a girl child not a boy, likewise a male Hindu above eighteen

years below twenty -one years of age can adopt a boy not a girl because the age gap

between the adoptive parent and the adopted child is twenty-one years if they are of

different sex.

31
1979 All LJ 1333-1979AllWC564
32
Section 3(c) of the Hindu Adoption and Maintenance Act--- ‘ “minor” means a person who has not
completed his or her age of eighteen years’.

92
 In the customary Hindu law a Hindu at the age of discretion and before attaining

the age of majority could adopt a son. The age of discretion was not fixed by the Hindu

text, according to the different texts of Hindu Law it may be fifteen or sixteen years of

age. Now to adopt a child the Hindu male or female must have attained the age of

majority under this Act. An adoption made by a minor shall be regarded as void which

cannot become valid by mere ratification.

A male Hindu who has attained the age of majority and who is of sound mind

can adopt a child only with the consent of his wife. This Act has brought a change to the

Hindu law of adoption by the provision contained in section 733. During uncodified

Hindu Law period, an adoption was not declared to be void merely because the adoption

was made without the consent of his wife.34 But now this is very much required for a

valid adoption. When a person wants to take a child in adoption and he has fulfilled all

the requirements of a valid adoption except the consent of the wife, then the adoption

shall be regarded as void.

The main intention of this Act by providing this provision is to give right to

express opinion in compliance with Article 19(I)(a) of the Constitution of India. It

was held in Siddaramappa Vs Gourava35 that an adoption without the consent of the

wife would be void. The consent of wife is a condition precedent to an adoption. Before

adopt a child he must take the consent from his wife. By incorporating the requirement

of wife‘s consent for a valid adoption in Section 7, the Parliament of India has tried to

33
Supra note 10

34
Nagireddi Lakshmi vs. N. Nagaraju AIR 2005 AP17

35
AIR. 2004 Kant230: 2004 (2) HLR438(Kant)

93
achieve one of the facets of the goal of equality enshrined in the Preamble as reflected

in Article 14 of the Constitution of India read with Article 15 of the Constitution of

India.

The word ‗wife‘ used by Section 7 has not been defined by the definition clause

of the enactment. Here wife means the legally wedded wife, so where the marriage

between the parties is void, under section 11 of Hindu Marriage Act, 1955, she would

not be a legally wedded wife and her consent is not needed.36 Where a decree of judicial

separation has been passed between husband and wife the consent of the wife would be

necessary for the husband to adopt a child because the decree of judicial separation did

not bring the marriage to an end. If the order of divorce takes place then consent is not

required to adopt a child because a marriage is said to be dissolved permanently through

the decree of divorce on any ground as mentioned in Section 13 of the Hindu Marriage

Act,1955.

The consent under this Section must be free consent and voluntary; it must be

free from fraud, coercion, undue influence, misrepresentation or mistake. Such free and

voluntary consent may be oral or in writing, express or implied. When a male Hindu

who is competent to adopt, has adopted a child without the consent of his wife such

adoption shall be declared to be void.37 If the wife takes part in the performance of

ceremonies of adoption, her consent will be implied, unless she pleads fraud or force38.

The consent need not be directly proved but can be inferred from circumstances.

36
Supra note 14, p. 210

37
Sarabjit KourVr. Gurmel Koue, AIR 2009 (NOC) 889 (p&H)

38
Diwan Paras, ‗Modern Hindu Law,‘ twentieth edi., (2009) , Allahabad Law Agency, p.237

94
 If a person has more than one wife living by the solemnisation of several Hindu

marriage as regarded valid under the ancient Hindu law or before the commencement of

the Hindu Marriage Act,1955 then the consent of all the wives much be taken by the

person . If one of the wives of a person disagrees to adopt a particular child, then the

adoption of that child would be regarded as invalid.

A male Hindu can adopt a child during the life time of his widow daughter-in-

law capable of adopting a child; her existence does not lost the competency of her

father-in-law to adopt a child.39 But the exercise of such right would not affect the

widow‘s independent right to adopt.40 But his right comes to an end if his widow

daughter-in-law has already adopted before his adoption.

Illustration: suppose Mr A had two sons X and Y who were predeceased to the

father leaving behind their wife L and M. respectively. L has adopted a son after the

death of Mr X. So the father-in-law could not able to adopt a child.

The main object underlying section 7 is to completely abrogate the customary

Hindu law under which a male Hindu can foist the relationship of an adoptive mother

upon his wife without her consent or even despite her objections. After the Act, if the

requisite consent of the wife is obtained, the wife is regarded as the adoptive mother

because the adoption so made by a male Hindu is not only by himself but by his wife as

39
Bhima Kotha Vs. Sarat Chandra, AIR 1988 Ori 14

40 th
Kesari U.P.D., ‘Modern Hindu Law’, 10 edn. ,(2015), Central Law Publication, p. 198

95
well.41 In Sarabjeet Kabir vs. Gurumal Kaur42 the court has held that adoption made by

a husband without the consent of the wife shall be regarded as void.

The consent of the wife or wives, if any, under three circumstances as provided

by the Proviso to Section 7 of the Act is not required. A Hindu male can take a child in

adoption without the consent of his wife or wives if any, if she43-

(i)is completely and finally renounced the world , the term completely and finally are of

wider import and merely because the wife does not take any interest in religious affair

thus taking no interest in cohabitation or in the household, unless the renunciation is

final and formal,44 or

(ii) ceased to be a Hindu, a person ceases to be Hindu when he convert to another

religion like Muslim, Christian. But when he does not have faith in Hindu religion,

denounce the main doctrine of Hinduism, does not profess Hindu religion, even if he

eats beef yet he does not cease to be a Hindu45or

(iii) has been declared by a court of competent jurisdiction to be an unsound mind. The

requirement of declaration of insanity by court has been introduced with a view to

safeguard the interests of his wife.46

The declaration of insanity must be prior to the fact of adoption. In Krishna

Chandra Sahu vs. Pradeep Das47 it was held that the consent of the wife is mandatory

41 th
Gour Hari Singh, ‘The Hindu Code’, Vol-IV , 5 Ed,( 1978) Law Publisher Sarder Patel Marg p.929
42
A.I.R. 2009 (NOC) 889 (P&H)
43
Supra note 20
44
Supra note 14

45
. Rani bhagwan Vs. J.C. Bose, (1903)31 1A 249

46
Supra note 14
47
AIR. 1982Orissa 114

96
but if the wife is subject to any exception to Section 7 then her consent is not required.

If the consent of the wife is not established the court will declared such adoption as null

and void.48 The same decision is reiterated in a recent case Ghasi lal vs. Dhapubai.49

Female right to adopt

Section 8 of the Act has brought about drastic changes on the ancient Hindu

Law of Adoption in respect of the female‘s right to take a child in adoption. Under the

ancient Hindu Law a female Hindu could not take a son in adoption. She had no right to

take in adoption during the life time of the husband. On the death of her husband the

widow could adopt on the authority of her husband.

In the ancient Hindu law period, women were dominated by the male. During

that period female had no right to adopt a son in her name. As provided by Section 8 of

the Act, before the Personal Law (Amendment) Act 2010 any female Hindu who is of

sound mind and has attained the age of majority and who is not married or 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 a Court

of competent jurisdiction to be of unsound mind can adopt a child of another.50

Like a married Hindu male an unmarried or a divorcee or a widower could adopt

personally a child under the Section 8(c) of the Hindu Adoption and Maintenance Act,

1956 before the Personal law (Amendment) Act 2010. Before the amendment a female

could not adopt during the life time of her husband or during the subsistence of her

48
Supra note 40, p. 219
49
AIR 2011 SC 644
50
Supra note 21

97
marriage. The Amendment Act 2010 has amended Section 8 and gives absolute right to

female Hindu to adopt a child.51

Unmarried Female

An un-married female has an absolute right to take a child in adoption. But this

right was not prevailed at all in the ancient Hindu Law. A major and sane unmarried

female can adopt in her own name. Here it can be mentioned about the adoption of two

daughters by Susmita Sen. She has adopted them to herself in her own name. When the

unmarried female after adopting a child marries then her husband will be regarded as

the Step- father of her adopted child, but not the adoptive father.

Married Female

Initially the Hindu Adoption and Maintenance Act,1956 provides the restricted

right to a married female to adopt. According to Hindu Adoption and Maintenance Act,

1956 a female Hindu who is not married and if married whose marriage has been

dissolved or whose husband is dead or whose husband has completely renounced the

world or whose husband has ceased to be a Hindu or whose husband has been declared

by the competent court to be of an unsound mind can adopt a child.

A married woman after dissolve her marriage on any of the grounds of divorce

as prescribed by Section 13 of the Hindu Marriage Act,1955, can adopt a child in her

own name. Subsequent marriage after the adoption does not render the adoption as

invalid. If a divorcee marries after adopting a child then her second husband will be the

step- father not adoptive father of the adopted child, while she will be in her own right

as adoptive mother.

51
Supra note 22

98
 Under this Act, a widow can also adopt a child in her own name. Formerly, a

widow could adopt only with the express authority delegated by her deceased husband.

It was held in Akshay Kumar Vs. Sarada Dai52 that the adoption by a widow is not only

to herself but also to her husband. The deceased husband is regarded as the adoptive

father of the adopted child. When she marries subsequent to an adoption of a son or a

daughter then her husband will be the step-father not the adoptive father of the adopted

child.

Again prior to the Personal Law (Amendment) Act 2010, a married woman

during the life time of her husband could adopt when her husband completely and

finally renounced the world, when her husband ceased to be a Hindu means he converts

to Muslim, Christian, Parsi and Jews, when he is declared to be an unsound mind by a

competent court of jurisdiction.53 An adoption made by a married Hindu female under

the circumstances provided by Section 8(c) would be her personal. In Brijendra Singh

Vs. State of U.P.54 the wife who lived separately from her husband without giving

divorce, adoption made by her was declared by the Court as invalid as she has adopted

during the life time of her husband. But again in Ramachandra Vs Narayana 55 the

Supreme Court has held that adoption by a widow when her husband has left a son is

not valid because a widow has no right to adopt a son for herself.

Hindu Adoption and Maintenance Act, 1956 has modified over the ancient

Hindu law of adoption, by giving right to the female to adopt a child of another. But the

52
AIR. 1995 Ori 212
53
Supra note 21
54
AIR. 2008 SC 1056

55
AIR. 2009 (NOC) 332 (Kar)

99
right guaranteed by the said Act fails to provide absolute right to adopt a child to the

female. The female could not adopt during the life time of her husband, only after the

death of her husband, she could adopt the child.

But now a female can adopt during the life time of her husband but condition is

that she must take the consent of her husband. The Personal Law (Amendment) Act

2010 provides absolute right to the female Hindu, it abolishes all the restrictions of a

married Hindu female to adopt a child.

A wife to a void marriage can adopt a child like an unmarried female. But where

during the subsistence of a void marriage, a child born then she can not adopts, because

the child is regarded as legitimate under Section 16 of Hindu Marriage Act, 1955.

There may be more than one valid adoption made by a female Hindu. Suppose a

female adopt a child during her maidenhood after then she married and her husband

adopt with her consent another child due to the issueless. The husband can adopt

because of the relation between the husband and the adopted son of his wife, the

adopted son of the wife is only the step son of the husband. The first adoption was

made by her during her maidenhood and after the change in the status she again adopted

a child, both the adoption remained valid. If after the death of her first husband she

married with the second husband who also dies without leaving behind a son or

daughter then she can adopt on behalf of her second husband. Thus the Act

contemplates a situation under which a woman can make several adoption whereas a

male could adopt only once, this part of law is analogous.56

56
Supra note41, p.200

100
3.4.2 Capacity and right of the adoptee

Under the ancient Hindu Law only the father and mother could give the child in

adoption, a guardian of the child had no such right to give. But the absolute right was

conferred on the father, he could give the child without the assent of his wife. The

consent of the wife was not required to give a child in adoption. The wife could give

only with the consent of her husband. But except father and mother no one such as

guardian, brother, uncle could give the child in adoption.

One change brought about by the Act in the matter of this requirement is that

where both the parents are dead or disabled from exercising the right by reason of

mental incapacity or renunciation of the world, the testamentary guardian or a guardian

appointed by the court can now give the ward in adoption with the previous sanction of

the court, no such sanction would be granted unless the court is satisfies that the

adoption will be for the welfare of the minor.57

Before the Personal Law (Amendment) Act, 2010 under the Hindu Adoption

and Maintenance Act the father if alive, has an absolute power to give the child in

adoption. But this absolute right was restricted by the provision that he must take the

consent of his wife58. The consent of the wife is the condition precedent to give a child

in adoption. Subsequent consent to the adoption is invalid.

After divorce the husband remains the father of the child born out of the

wedlock and by divorce his right to give in adoption with the consent of the wife does

57
Desai S.T., ‗Principles of Hindu Law‘, 4th edn, (1978) N.M. Tripathi Pvt. Ltd. P.

58
Supra note 23

101
not cease his right to give the child in adoption subject to the sub-Section (3) and (4) of

Section 9 of the Act as held in Chandra Nath Sadhu Vs. The State of West Bengle. 59 To

possess the right to give in adoption the father must be of sound minded, does not cease

to be a Hindu and does not completely renounced the world. His right to give in

adoption ceased under three conditions according to sub- Section (3) of the section 9 of

the said Act, when-

i. He is declared to be of unsound mind by the competent court of

jurisdiction

ii. He ceases to be a Hindu

iii. He has completely renounced the world

in such conditions the right to give in adoption confers to his wife.

But so long as her husband is alive she could not give in adoption except he

does not disqualified by any circumstances as enumerated in Section 9(3) of the Act.

For a mother to possess the right to give in adoption, she on her part, should also not

suffer from any disqualification. Here the father and mother refers to as natural father

and mother, does not refer to step father and step mother, adoptive father and mother.

So, it was held that a son given by the step father in adoption is invalid. 60This law is

same as prevailed in the ancient Hindu Law.

The Hindu Adoption and Maintenance Act 1956 has provided that during the

life time of the husband the wife cannot give the child in adoption. Regarding giving the

59
2003(2)HLR 267b(Cal)

60
Dhruv Raj Jain vs. Smt. Suraj Bai AIR 1973 Raj.

102
child in adoption the wife has the inferior power than her husband. To remove this

defect Section 4 of the Personal Law (Amendment) Act has amended Section 9 of the

Hindu Adoption and Maintenance Act to give equal right to both the husband and wife

in respect of giving the child in adoption provided the consent of each party is

required.61 Now the consent of both father and mother is required to give a child in

adoption. A mother can give during the life time of her husband with his consent.

But in certain circumstances the consent of the other spouse is not required

when-

(i) He or she has completly and finally renounced the world

(ii) Has ceased to be a Hindu

(iii) Has been declared by the court of competent jurisdiction to be of

unsound mind

Under the old Hindu Law only the father and mother could give in adoption the

guardian had no right to give in adoption. But now under Section 9 (4) of the Act, the

guardian can give a child in adoption. Here, the guardian means either testamentary

guardian or guardian appointed by the court. The guardian can give where both the

father and mother62-

i. are dead

ii. have completely and finally renounced the world

iii. have abandoned the child

iv. have been declared to be of unsound mind by the competent court of

jurisdiction

61
Supra note 23
62
Supra note 23

103
 v. the parentage of the child is not known

In 1962, an amendment gives a provision that here guardian includes both de

jure and de facto guardian. Before the amendment only de jure guardian i.e. guardian

appointed by the court and testamentary guardian were included under this Sub-Section.

Now under the Explanation (ia) of Section 9 guardian means a person having the care of

the person or property of the child, now, a manager , secretary or any person in-charge

of an orphanage or a person who has brought up the child or under whose care the child

is given in adoption.63

The guardian‘s right to give in adoption is restricted to the prior sanction of the

court for giving the child in adoption.64 The guardian cannot validly give a child in

adoption without the prior permission of the court. Here, ‗court‘ means the city civil

court or a district court within the local limits of whose jurisdiction the child to be

adopted ordinarily resides. The welfare of the child is the paramount consideration

before the court in granting permission to the guardian to adopt a child. In considering

the welfare of the child due regard would be given to the wishes of the child, having

regard to his age and understanding of the child.

63
Supra note 40 p.208

64
Section 9(5) of the Hindu Adoption and Maintenance Act: ‗before granting permission to a guardian
under sub-section (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‘.

104
3.4.3 The person adopted is capable of being taken in adoption

In the ancient Hindu law , a person to be adopted must be a Hindu male, who is

the nearest sapinda and belong to the same caste and he must not be a deaf and dumb,

orphan , only son , eldest son.

Section 10 of the enactment has brought change on the ancient Hindu Law in

this respect. This Section provides four qualifications which must be possessed by a

person to be adopted.65

I. Section 10(1) lays down that a Hindu may adopt either a girl or a boy. But prior to

this enactment only a son not a girl could be adopted but he must be of same caste with

the adoptive father and mother. According to the ancient Hindu Law only the son could

be adopted because it was only through a son an adoptive parent can attained salvation

and can continue his lineage. But this ancient concept of ancient text on adoption is

abolished by Section 10(1), which incorporates the principle of gender equality, under

this Section a male or female child can be adopted by a Hindu. Again it also provides

that the child may be of different caste with the adoptive parent. He or she may be

Buddhist or Jains or Sikh by religion, but must not be a Muslim, Christian, Parsi or Jew

by religion. In other words a Hindu cannot adopt a non Hindu child under the Hindu

Adoption and Maintenance Act.

II. According to Section 10 (II) the adopted child has not already been adopted. An

adoption once made cannot be cancelled under Section 9 of the Act. An adoptive father

65
Section 10 of the Hindu Adoption and Maintenance Act 1956: ‘Person who may be adopted- No
person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:-
(a) he or she is a Hindu;
(b) he or she has not already been adopted;
(c) 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’.

105
and mother cannot be giver of a child. Again Section 9 of the Act lays down that an

adopted child cannot be given in adoption. But if the first adoption be invalid the boy or

girl may be given in adoption for a second time.

III.The child has not been married unless there is a custom applicable to the parties.

There are some custom among Jats that there is no restriction of age for the person to be

adopted and even after the marriage a person can be adopted. In Maya Ram vs. Jai

Narain66 Punjab and Haryana High Court has validated the adoption of a married

person.

IV. The child has not completed the age of fifteen years, unless there is a custom

applicable to the parties to adoption. In the State of Maharastra a custom was prevailed

which permit the adoption of a boy above fifteen years, such adoption was held to be

valid in Hansa Bai vs. Jija Bai67 despite the provision laid down in Section 10(4).The

custom must be established or proved by the parties. In Virendra Singh vs. Kashiram68

for a valid adoption the custom must be proof and established custom. So in absence of

a valid custom an adoption of twenty five years of age is void.

3.4.4 Other Conditions

In addition to the above three conditions as mentioned in Sections 6 to 10,

Section 11 of the Act provides some other conditions which must be fulfilled to be a

66
(1989) I HI 352 (P&H)
67
AIR 1972 Bom.98

68
AIR 2004 Raj. 196

106
valid adoption.69 In other word, for a valid adoption all the conditions provided by

Section 11must be satisfied by the parties in addition to the other.

Existence of a Hindu son or grand-son and daughter or grand-daughter

Under the provisions of the Act, adoption of more than one child of the same

gender is not permissible.70 When one has a biological child of that gender adoption is not

legal.71 Section 11(i) states that if the adoptive person has a son or grand-son or great

grand-son whether legitimate or adopted living at the time of adoption then he or she can

not adopt a son. Existence of a son , son‘s son, son‘s son‘s son is a bar to take a son in

adoption but he or she can adopt a daughter. Here the son, grand-son means only the

biological son. In Guramma vs. Mallappa72 it was held that the existence of a son in the

womb at the time of adoption would not invalidate adoption. Here the son includes only a

Hindu legitimate son.73 A person having an illegitimate son is not disqualified to take a

son in adoption. A person who has daughter or son‘s daughter can adopt a son. It was held

69
Section 11 of the Hindu Adoption and Maintenance Act: Other qualifications for a valid adoption – In
every adoption, the following conditions must be complied with:-
(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made
must not have a 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) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is
made must not have a daughter, son’s daughter (whether by legitimate blood relationship or
by adoption) living at the time of adoption.
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is
at least twenty-one years older than the person to be adopted.
(iv) 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)the same child may not be adopted simultaneously by two or more persons.
(vi)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 data homam shall not be essential to the validity of adoption.’
70 th
Kusum, ‘Family Law-‘I, 4 edi. (2015) Lexis Nexis, p. 368
71
Ibid
72
AIR 1964 SC 510

73
Charan Singh vs. Hajor Singh [(1976)78 PLR 367

107
in Radhakrishne Vs. Bhujan Shrishyam74 that a female Hindu having a step son is not

disqualified her to taken a son in adoption.

This is the reformative step taken by this Act that now a girl child as well as a

boy can be adopted by a Hindu. Prior to this Act only a boy could be adopted not a girl.

Now under Section 11 (ii) of the Act a Hindu male or female who is of sound mind and

attained - the age of majority can adopt a daughter provided that he or she must not have

a daughter or son‘s daughter whether legitimate or adopted living at the time of

adoption.75 This bar cannot be applied in case of illegitimate daughter. So, a person

having illegitimate daughter can adopt a daughter and the adoption shall be regarded as

a valid adoption.

In Sandhaya vs. UOI76 the petitioner wanted to adopt a second female child and

challenged the constitutional validity of the provision contained in Section only a son

or/and a daughter could be adopted. The petitioner contended that Section 11 (1) and

section 11(2) violate Article 14 and Article 21 of the Constitution of India. It was held

that personal law does not come in the definition law under Article 13 of the Indian

Constitution; hence it does not violate the right of a person to adopt two daughters. The

judgement in this case cannot be accepted. The custom is included in the definition of

law under Article 13(3)(a) of the Constitution. The custom is one of the source of Hindu

Law. So the Hindu personal law is law under Article 13(3)(a) of the Constitution of

India. There is no justified reason for a Hindu not to adopt a child of the same sex with

his or her biological child.

74
AIR 1964 Ori 1136
75
Supra note 69
76
. AIR 1998 Bom. 228 (DB)

108
 Illustration I: Mr. X, a Hindu having a natural or biological daughter of eight years

has adopted a girl child in 2007 under the Juvenile Justice Care and Protection Act

with the consent of his wife.

Illustration II: Mr. Y, a Hindu having a daughter and a son again take an orphan child

who needs a healthy family.

Now it is clear that though the provision to adopt a son is prohibited when he

has a natural born son and prohibited to adopt a girl child when he has a daughter under

the Hindu Adoption and maintenance Act, but he can easily take a child of the same sex

with his or her natural child in adoption. Under other enactments relating to the law of

adoption a person can adopt a child of same sex with that of the natural child. So such

provision as provided by the Hindu Adoption and Maintenance Act should be abolished.

Age bar in case of adoption

Section 11(iii) and 11(iv) of the Hindu Adoption and Maintenance Act provides

for the age bar in case of adoption.77 In case of the same sex the question of age

difference between the adopter and the adopted child does not arise, but in case of

opposite sex there should be a gap of twenty-one years of age between the adopter and

adoptee. If a male Hindu wants to adopt a girl child then there must be twenty- one

years of age difference between the male Hindu and the girl child. Same age bar is

also prescribed in the case of adoption of a boy by a female Hindu.

77
Supra note 69

109
 The main intention behind the incorporation of this provision is to prevent

immoral relationship between the adopter and adoptee when they are of different sex,

violation of this age bar would render the adoption void.78

The guardian can in some time be the adoptive parents of the child. But for this

he must comply with Section 11(vi) which provides that for a valid adoption actual

giving and taking ceremony must be required.

Prohibition of simultaneous adoption

A child cannot be regarded as a child of two fathers or two mothers. So after

adoption only the adoptive male or female is said to be the adoptive father and mother.

His adoption to one person prevents all other to take the child for a second adoption.

Under Section 11(v), a child cannot be simultaneously adopted by two or more person.

This provision was also in force in the ancient Hindu Law. The Act has only codified

this provision under Section 11(v).

3.4.5 Ceremonies for a valid adoption

Under the ancient Hindu Law, the ceremonies in case of a valid adoption were79

i. The physical act of giving and taking a child with the intend to transfer

the child from one family to another.

ii. The ceremony of Datta-Homam must be performed.

The physical act of giving and taking a child in adoption must be required under

the present Hindu Law . The physical act of giving and taking the son or daughter is

78
Golakchandra vs. Krutibai AIR 1979 Ori. 205
79
Supra note 77, p.162

110
only ceremony at the time of adoption. In Kashi Nath Rai vs. Mahadeo Rai 80 the Patna

High Court has declared that the giving and taking ceremony is essential to the validity

of an adoption. It is an operative part of the ceremony of adoption. The performance of

Datta Homam is not essential to the validity of an adoption.

Now the adoption is complete when the child is actually given and taken in

adoption, no religious ceremony of datta homam is required. The Supreme Court in

LakshamanSingh Kothari Vs. Smt. Rup Kanwar81 has held that for a valid adoption the

act of given and taken is very much required, after the completion of such physical act

the child will be transfer from one family to another family. For a valid adoption the

proof of actual giving and taking of a child in adoption is very much required.82

But there is no particular form of giving and taking in adoption as prescribed in

the enactment. The act of giving and taking the child from one family to another family

is completed the act of adoption. The physical act of giving and taking a child is

preserved by Section 11(vi) of the Act. For a valid adoption the natural parents only

give a child to the adoptive parents and the adoptive parents must also accept the child.

That means the natural parents or guardian appointed by Court must hand over the child

and the adoptive parents must taken over the child, if the formalities of giving and

taking is not fulfilled then such adoption shall be regarded as void. The act of giving

and taking is mandatory even if the presence of the parties in adoption.

80
AIR 1977 Pat.199
81
AIR 1961 Ori 1136

82
Lal Bihari Vs. Gyanchand, AIR 2007 NOC 2540 (All)

111
 The right to give in adoption cannot be delegated to any person but the natural

parents or guardian who are authorised to give in adoption may authorise another person

to perform the physical act of giving the child to a named person who can delegate some

one to accept the child in adoption on his or her behalf.83 The Punjab and Haryana High

Court states in Narinderjit Kaur Vs. Union of India84 that an adoption will be valid only

when the child is given by the natural parent or guardian to the adoptive parent. For a

valid adoption mere execution of will or oral declaration or deed of adoption is not

sufficient if there is no actual giving and taking the child in adoption. An adoption can

not be valid unless there is proper transfer of a child from one family to another. In

Golak Chandra vs. Pratibha85 the Orissa High Court has held that an adoption made in

non-compliance with the above condition is to be an invalid. The fulfilment of these

conditions is mandatory for a valid adoption.

3.5 Effect of a Valid Adoption

On the fulfilment of above mentioned conditions the adoption shall be regarded

as a valid adoption. After adoption the adopted child is regarded as the natural child of

the adoptive parents. According to modern Hindu Law the child acquire the status of the

membership in the adoptive family. All the relation with the family of his birth ceases

after adoption. The adoption of a child can be compared to the transplantation of a plant

from one place to another.86 The child is deemed to be born in the adopter‘s family on

the date of his or her being taken into adoption. It is a system of substitution of the child

83
Agarwal R.K., ‘Hindu Law’, twenty-one edi, (2003) , Central Law Agency, p.163

84
AIR (1997)P&H 280
85
AIR 1979 Ori. 205
86
Supra note 35, p. 221

112
from one family to another family and 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. The provision of the effects of a valid adoption is discussed by Section

12 of the Act.87 Section 12 declares that the adopted child shall be deemed to be the

natural child, for all purposes. The effect of the adoption can be discussed under the

following two heads-

3.5.1 Effect of adoption in the biological family of the child

The right of the natural parents to the child comes to an end from the date of

adoption. The child can not be entitle any legal benefit from the natural family after

adoption. From the date of adoption, the adoptive father and mother are regarded as the

real father and mother for all purposes. The tie with the natural parents will be

terminated from the date of the adoption. The child has no right to inherent the natural

family property after adoption. In Kamala Bai vs. Rajesh 88the Supreme Court has held

that the adopted child can not be entitled to the gifted property made after his adoption.

After adoption, natural parent are not regarded as the legal guardian of the child. They

cannot exercise the powers over the child as the natural guardian under the Hindu

87
Section 12 of the Hindu Adoption and Maintenance Act 1956--- ‘Effect of adoption: 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.’
88
AIR 2008 M.P.125

113
Minority and Guardianship Act, 1956. Again the natural mother can not entitled the

custody of an adopted child who is of two years.

All the relations of the adopted child with the natural family come to be an end,

except he cannot marry with a person who is within the prohibited degree and sapinda

relationship of the members of natural family.89 From this we can say that the blood

relation of a person with that of other can not be altered even with the institution of

adoption.

3.5.2 Effect of adoption in the adopted family of the child:

The adopted child is treated as a child as if the child were born in the adoptive

family for all practical purposes. The adopted child has the right of inheritance in the

coparcenary property of the adoptive family. This Section has abolished the ancient

concept that if any natural son was born to the adoptive parents then the adopted son

will not inherit the equal share with the natural son. But now he is entitled the equal

share under the Hindu Succession Act, his position is same with the natural son in

respect of inheritance.

Under the Hindu Succession Act, 1956 the adopted son and daughter are

regarded as Class I heir as enumerated in Schedule of the Act. According to Section 9 of

the said Act, the adopted son and daughter can entitled equal share with the mother,

widow, natural son and daughter, after the death of his adoptive father dying leaving

intestate property. Again under Section 15 of the Act, the adopted son and daughter are

the heir in the first entry of a female and has preferential right to inherit the property of

the adoptive mother.

89
Proviso (a) to Section 12

114
 Regarding the natural parent of the adopted son, Section 7 of the Hindu Minority

and Guardianship Act, 1956 can be referred.90 Section 7 of the Act lays down that the

adopted father and mother are the natural guardians of an adopted child. But Section 7 is

silent regarding the natural parent of adopted daughter; this is probably because the

Hindu Minority and Guardianship Act was in force on 25th August,1956 and Hindu

Adoption and Maintenance Act was in force four months later than Hindu Minority and

Guardianship Act i.e. on 21 December 1956. So at the time of passing Hindu Minority

and Guardianship Act, the ancient law of adoption was prevailed according to which

only a son could be adopted by a male Hindu. So Section 7 should be amended and

include the adopted daughter with the son.

The word for all purpose and tie used in the Section 12 is very wide and includes

all types of bonds like social, religious, and cultural or any other that would bind the

adoptee to his natural family. On adoption the adopted child acquires the caste of the

adoptive parents. Where a child born in a lower caste family and adopted by a higher

caste then the child would acquire the caste of the adoptive family.91 But if the child is

of higher caste and adopted by a backward class parent at the age of fifteen or above so

after it had received benefits of upbringing in that class and having advanced

educational start off.

It was held in A.S. Sailaja vs. Kurnool Medical College92 by the Andhra Pradesh

High Court that a child who born in a family belonging to a forward caste but adopted

by the backward class is not entitled to the Constitutional benefits of reservation of

90
Section 7 of Hindu Minority and Guardianship Act: Natural guardianship of adopted child- The natural
guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after
him to the adoptive mother’.
91
Khiazan Singh vs. UOI AIR 1980 Del. 60
92
AIR 1868 AP209

115
backward class under Article 15(4)93 or 16(4)94 of Constitution of India. The same

decision of the Andhra Pradesh High Court is reiterated by the Karnataka High Court in

K. Shantha Kumar vs. State of Mysore.95

In Vikas Soni vs. Malviya Regional Engineering College, Jaipur96 the petitioner

sought admission in the college under the reserved category. He was adopted when he

was of three years by a widow whose husband was die eighteen years before the date of

adoption. In the school certificate from Class I to XII the name of the adopted father

was specified. The school authority objected the claim on the ground of eighteen years

difference between the date of death of the father and the date of the birth of the child.

But the Rajasthan High Court has held that the adopted son belongs to the deceased

father, so the petitioner was entitled to the benefit of reservation.

The researcher also agree with the decision of the Rajasthan High Court that

after adoption the adopted child will be regarded as one of the member of the adoptive

family. So after adoption the child is entitled to all the benefits of the adoptive family.

The adopted son should be regarded as the member of the adoptive family.

When an adoption is made by a widow then the adopted son would become the member

of the coparcenary if his adoptive father was so. In Sitabai vs. Ram Chandra97 there

were two brothers in a coparcenary, one brother died leaving behind his widow, who

adopted a son. The other brother was also dying leaving behind his widow and an

93
Article 15(4)
94
Article 16(4)
95
(1971)1 Mys LJ 21
96
AIR 2003 Raj. 158
97
AIR 1970 SC 343

116
illegitimate son. The Court has held that the adopted son of the first brother become the

member of the coparcenar, the illegitimate son can not be regarded as a coparcenary.

By using ‗from the date of adoption‘ Section 12 intends to abolish the Doctrine

of Relation Back which was prevailed prior to the enactment. According to the Doctrine

of Relation Back an adoption made by a widow shall be effected from the date of the

death of her husband not from the date of adoption. Now Under the present law an

adoption made by a Hindu is deemed to have come into existence in the adopted family

from the date of his actual giving and taking the child in adoption, not from a date back.

Now when a widow adopts a son then the child will be regarded as a natural son of the

widow from the date of adoption.

In Hanumanth Rao vs. Hanumayya98 the Andhra pradesh High Court has held

that as the adoption by a widow takes effect from the date of adoption, the adopted child

shall not be regarded as a child of the deceased husband.

In Ankush Narayan vs. Jana Bai99 the Bombay High Court has held that though

in adoption a child is transfer from one family to another and the child becomes the

member of the new family. So a child adopted by a widow becomes the child of the

widow‘s family and all the collaterals of the deceased husband would be connected with

the child through the deceased husband.

Again the Supreme Court in Sawan Ram vs. Kalawati 100 has overruled the

decision given in Hanumanth Rao and held that when a widow adopt a child the child

becomes the son of the wife and the deceased husband, he can claim the property left by

98
ILR 1966 AP 140
99
AIR 1966 Bom 174:67 Bom LR 864
100
AIR 1967 SC 1761

117
the husband after adoption. The adopted son becomes the son of the widow as well as

the deceased husband. But in Arumugha vs. Valli Ammal101 the Madras High Court has

held that a child adopted by a widow does not become the child of deceased husband.

In Siddama vs. Rayanagaudald102 Supreme Court held that a son adopted by the

widow cannot entitle the share of the property which the widow inherits from her

husband under the provision of the Hindu Succession Act because the adopted son is the

son of the widow only.

A male Hindu who is of sound mind and attained the age of eighteen years can

adopt a son or a daughter; he may be married or unmarried, widower or divorcee under

the provision of Section 7 of the Act.103 Likewise under Section 8 a female Hindu can

also adopt during her maidenhood, widowhood or she may be a divorcee, she can also

adopt during the life time of her husband.104 Now the question arises what will be the

relation of the child adopted by an unmarried or divorcee or widower male Hindu with

his wife with whose the marriage solemnized after adoption. Again the unmarried girl

after adopting a child does not debarred from the solemnization of marriage. So after

adoption if she married then what will be the relationship between the child and her

husband. The answer of these questions is laid down by Section 14. Sub-Section (1) to

(3) of Section 14105 gives the answer to the first question and Sub-Section (4) deals with

the second question.

101
AIR 1969 Mad. 762
102
AIR 2008 NOC 6327 Kerela
103
Supra note 20
104
Supra note 22
105
Section 14 of the Hindu Adoption and Maintenance Act—
‘Determination of adoptive mother in certain cases—
(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 seniormost in
marriage among them shall be deemed to be the adoptive mother and others to be step-mothers.

118
 When a male Hindu adopts a child under Section 7 during the life time of his

wife then the wife becomes the adoptive mother. Adoption by a married male Hindu

during the life time of his wife is possible only with the free consent of his wife. After

adoption the tie of the adopted child with his family by birth are severed and replaced

by the adoptive father‘s family.

Again Section 14(2) lays down that if the adoptive father has more than one wife

in case of a marriage solemnized before enacting the Hindu Marriage Act 1955 the

senior most wife is the adoptive mother and the other wives are the step-mother of the

child. In such case, the consent of all the wives is required but all the wives does not

acquired the status of adoptive mother. The status of adoptive mother in this case or the

seniority of the adoptive mother is depend on the date of the solemnization of marriage

but is not depend on the age of the wife.

A bachelor and a widower has absolute right to adopt a child. But when he

married after adoption then the wife shall be regarded as the step-mother according to

Section 14(3) not adoptive mother though the marriage is valid, this is because she was

not the wife of the adopter at the time of adoption.

If a spinster adopts the husband whom she subsequently married shall be

regarded as the step father of the child. If a widow adopts a child then it is regarded that

her deceases husband is the adoptive father, the child is regarded as the member of her

deceased husband. If he subsequently marries after adoption then the second husband

shall not regarded as the adoptive father, he is only stands as a step father because the

(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 deemed to be the step-father of the adopted child’.

119
child acquire the position of adopted child in the name of the decease husband of his or

her adoptive mother.

The Hindu Adoption and Maintenance Act remains silent as to the determination

of adoptive father and mother by a divorced male or female. When an issueless divorced

woman adopts a child and later on remarries another person, such husband becomes the

step father. Again when a divorced male remarries subsequent to the adoption of a child,

the wife becomes the step mother. But this provision is not expressly provided by the

Act.

Again this Act is remain silent in case of adoption by a female Hindu during the

life time of her husband when he has renounced the world, ceased to be Hindu, declared

to be of an unsound mind, then he should be considered to be the father of the child. If

he reconvert, recover his sanity he should be regarded in every sense as the adoptive

father of the child.

3.5.3 Abolition of the Doctrine of relation Back

Under the old Hindu Law a female Hindu could not adopt a son to her own as

her right. At that time only a widow could adopt a son in the name of her husband, not

in her own name and only with the consent of her decease husband which may be

expressed or implied. The adoption is deemed to be effected from the date of the death

of her husband. This is known as the doctrine of relation back. The importance of this

doctrine was very vital as during the ancient Hindu Law period a female had no right to

adopt a child.

According to this doctrine, a son adopted by a widow under the authority of her

husband is deemed to be effected on the date of the death of her husband but not on the

120
date of his adoption. All the relation with the adopted family related back to the dateof

the death of the adoptive father. However the doctrine has application only when the

question relates to succession of property of the adoptive family.

Now by the enactment of Hindu Adoption and Maintenance Act 1956, the

doctrine of relation back is abolished by the provision that a Hindu widow can adopt a

child in her own name not in the name of her husband. This is another important change

made by this enactment. All the relation with the adoptive family is from the date of the

adoption made by the widow.

Section12 provides that the adoption is effected from the date of the adoption

whether the adoption is made by a male or a female. In Arumugha Vs. Valli Ammal106

the Madras High court has held that a child adopted by a widow does not regarded as a

child of the deceased adoptive father. Again in Sitha Bai Vs. Ramachandra 107 it has

been held by the Supreme Court that the adopted son by the widow can entitled the

property of the deceased adoptive father.

If the adopted child has vested property acquired from the family of birth then

he can enjoy that property absolutely, subject to the provision that the property must be

free from encumbrances. Here property includes self acquired property, property

inherited from the natural father or mother or other coparceners any interest of the

coparcenary family. This is provided by clause (b) of the Proviso to Section 12 of the

Hindu Adoption and maintenance Act 1956. Section 13 provides the adoptive parents

106
AIR 1969 Mad 72
107
AIR 1970 SC 343

121
have absolute right to dispose of his property.108 Here the property means property

belongs to the adoptive parents. But if there is an agreement between the adoptive

parents and the natural parent regarding the dispose of his property then the agreement

is valid. The father and mother have the right to dispose the property by transfer inter

vivos or by will if there is no agreement to the contrary.

When a widow adopts a son then the son becomes the member of the family of

the deceased husband. The Supreme Court in Dinaji vs. Dadij109 has held that the

adopted son cannot divest any person of any property which had vested in him before he

was taken into adoption. In Vijaya Lakshmamma vs. B.T. Shankar110 the Supreme

Court has held that the adopted son under Section 12(c) cannot divest any person of any

property which had vested in him before he was taken into adoption. In Sorawar Singh

vs. Kan Mal111 the court has observed that consequence of adoption envisaged in

Section 12 of that Act is that the adopted child shall not divest any person of any estate

which vested in him or her before adoption.

3.6 Anti Adoption Agreement

The power of an adoptive father or mother to dispose of the property is dealt

with by Section 13 of the Hindu Adoption and Maintenance Act, which provides that

the adoptive parents are not deprive from the power to dispose of his or her property by

transfer inter-vivos or by will, subject to any agreement of the contrary. 112 The parents

108
Section 13 of the Hindu Adoption and Maintenance Act: ‘Right of adoptive parents to dispose of their
properties- Subject to any 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’.
109
AIR 1990 SC 1153
110
AIR 2001 SC 1424
111
AIR 2003 Raj.108
112
Supra note 108

122
have absolute right to dispose of his or her property which can be curtailed by an

express agreement to the contrary between the adoptive child and the adopting parents.

When the adoptive parent and the natural parents at the time of adoption enter into an

agreement whereby the right of the adoptive parent to dispose of his or her property is

curtailed, such agreement is enforceable. In Urge Gowda vs. Nage Gowda113 the

Supreme Court has held that an adoption of son does not deprive the adoptive mother

from the power to dispose of her separate property.

In Binabai vs. Wasudev114 the Bombay High Court has observed that the power

of adoptive parents to alienate the property can be curtailed only by agreement and it

must have a valid limitation and not only the legal result of an adoption. The power of

disposal is related to the property of the adoptive parents which implies that the

property should be absolutely vested in the adopter.

3.7 Revocation of a valid adoption

According to ancient customary Hindu Law, once a valid adoption is made it

cannot be revoked, this provision is retained by Section 15 according to which a valid

adoption is made by male or female under this Act after fulfilment of all requirements

cannot be cancelled by the adoptive father or mother or any other person or the adopted

child.115 In Daniraiju Maharaj vs. Srichendra Prabha116 Justice Bhagwati expressed that

this provision applied only in case of adoption made after passing the enactment but has

no application to an adoption made prior to the Act.

113
AIR 2004 SC 3974
114
AIR 1979 Bom 181
115
Section 15 of the Hindu Adoption and Maintenance Act: ‘Valid adoption not to be cancelled- 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’
116
AIR 1975 SC 784 (1975)3 ScR 32 (1975) ISCC 612

123
 By adoption all the relation with the natural born family is completely

terminated he can not entitled the membership in the natural family and acquire the

complete status of a son or daughter in the adoptive family and becomes the member of

the adoptive family. The adoption cannot be cancelled.

3.8 Evidence of an adoption

Under the ancient Hindu Law as well as Hindu Adoption and Maintenance Act

no writing or execution of document is necessary for the validity of an adoption. But it

is cardinal rule of evidence that where written document exists they must be produced

as being the best evidence of their own content. Where oral testimony is conflicting,

much greater evidence is to be given to men‘s acts than to their alleged words which are

so easily mistaken or misrepresentation.117

Section 16 of the Act deals with the significance of a registered deed of

adoption, in case of a valid adoption.118 The burden to prove the validity of an adoption

is on the person who challenges an adoption. But under Section 16 of the Act a

registered document deed of adoption raises a strong presumption that an adoption has

been made in accordance with the provision of the Act.

The presumption provided by Section 16 shall not be made unless the following

conditions are complied with----

(1) There must be a document

(2) It must be registered under the law in force

117
Supra note 7, p 231
118
Section 16 of the Hindu Adoption and Maintenance Act: ‘ Presumption as to registered documents
relating to adoption- Whenever any document registered under any law for the time being in force is
produced before any court purporting to record an adoption made and is signed by the person giving
and the person taking the child in adoption, the court shall presume that the adoption has been made in
compliance with the provisions of this Act unless and until it is disproved’.

124
 (3) It must support to record an adoption

(4) The document must be signed by both the giver and taker of the child in

adoption

(5) It must be produced before the Court

An adoption is presumed to be complete with the fulfilment of all the provisions

of this Act, where ever an adoption deed is registered or produced before the court

purporting to a record of an adoption made and signed by the person giving and taking

the child where the ceremony of giving and taking is performed by the parties and when

the adoption deed is duly registered, the adoption is said to have been validly made as

held by Madras High Court in Senthikumar vs. Dhandapani119

In Bishwanath vs. Ajoy Kumar120 the Court held that a registered deed of

adoption raises a strong presumption that an adoption has been made in accordance with

the provision of the Act and the presumption may however be rebutted by the opposite

party.121

Where an adoption by a wife was sought to be sustained on the ground that the

husband was of unsound mind and his consent was not necessary, but this fact was not

mentioned in the plaint as required by Order 6 rule 6, CPC but a registered document

was produced, it was held that the presumption under Section 16 would prevail over

Order 6 rule 6 CPC and it is for the other side to rebut the presumption.

119
AIR 2004 Mad. 403:2005 (1) HLR 717 (Mad.)
120
AIR 2008 Jhar 12
121
Supra note 22 p. 221

125
 In Shakuntala Devi vs. Angia Mandalain and others122 the Supreme Court made

validate the adoption where the registered deed of adoption was duly signed by the

persons giving and taking the child in adoption. In this case the child was not transfer

from the natural family to the adoptive and the ceremony of adoption was also not

performed by the parties.

Again in Ram Chandra vs. Banwari Lal123 the Supreme Court observed that

where the adoption deed is not properly registered and it does not bear the signature of

the natural guardian, such adoption is not a valid adoption.

In Shakuntala Devi vs. Angia Mandalain and other124 the High Court has held

that if in any adoption no ceremony took place and the alleged adopted child was not

transferred from the natural family to the adoptive mother. The court was bound to

accept the fact of adoption on proof on the basis of registered deed of adoption under

Section 16 of the Hindu Adoption and Maintenance Act. The said Hindu Adoption and

Maintenance Act provides that under a registered deed of adoption duly signed by the

person giving and the person taking the child in adoption, there is a presumption that

adoption was made in compliance with the provision of the said Act, until and unless it

is disproved. Hence in these circumstances the Court rightly held the adoption as valid.

122
AIR 2003 Jhar 57
123
AIR 2014 Raj 144
124
AIR 2003 Jhar 57

126
3.9 Prohibition of certain payment

Section 17125 of the Hindu Adoption and Maintenance Act prohibits receipt or

agreement to receive or the giving or agreement to make or give any pecuniary

advantage of payment of any kind in consideration of an adoption.126

By this provision the legislature intents to prevent trafficking or rewards in

consideration of giving or taking or agreeing to give or take a person in adoption. If any

person contravenes this provision he shall be punishable with imprisonment which may

extent to six months or with fine or with both.

3.10 Effectiveness of the Hindu Law (Amendment) Act 2010

All the respondents (academician) viewed on the first Question of the Interview

taken by the researcher that the Hindu Personal Law (Amendment) Act 2010 has

abolished the discrimination between male and female as it provides that for the

adoption of child consent of both wife and husband is required. Now a female has

absolute right not restricted right to adopt a child of another which was not absolute

prior to 2010 because according to Hindu Adoption and maintenance act, 1956 a female

cannot adopt a child during the subsistence of her marriage or during the life time of her

husband. She could adopt only after the death of her husband or after their divorce.
125
Section 17 of the HAMA-
(1)No person shall receive or agree to receive any payment or other reward in consideration of
the adoption of any person, and no person shall make or give or agree to make or give to any other
person any payment or reward the receipt of which is prohibited by this Section.
(2) In any person contravenes the provisions of sub-section (1), he shall be punishable with
imprisonment which may extend to six months, or with fine or with both.
(3) No prosecution under this Section shall be instituted without the previous sanction of the
State Government or an officer authorized by the State Government in this behalf.

126
Supra note 45 p. 174

127
 The Personal Law (amendment) Act, 2010 has amended Section 8 and 9 of the

original Hindu Adoption and Maintenance Act, 1956. The original Act has also tried to

abolish discrimination between male and female, by giving right to female to adopt a

child of another. But this right of female is not absolute because according to section 8,

a female cannot adopt a child during the life time of her husband or during the

subsistence of her marriage. Section 8 provides right to adopt only to unmarried,

divorcee, widow and a female during the life time of her husband when her husband is

declared to be of unsound mind or he has presumed to be death. Section 3 of the

Personal Law (Amendment) Act 2010 has amended Section 8 and lays down that a

female who is of sound mind and not minor can adopt a child. Here female includes a

widow, divorcee, unmarried and married. But in case of married woman she must take

the consent of her husband. So section 3 of the Personal Law (Amendment) Act does

not provide any discrimination between male and female in respect of adoption of a

child of another.

Again it can be mentioned that regarding sex discrimination in respect of giving

the child in adoption that after the amendment both male and female has a equal right to

give the child in adoption. Before the Act section 8 lays down that a father can give a

child and after him his wife can give the child in adoption which provides absolute right

to a male Hindu to adopt a child of another. Only after the death of the father of the

child the mother could give the child in adoption. In other words during the life time of

the father, the mother had no right to give the child in adoption. But now Section 4 of

the Personal Law (Amendment) Act has amended Section 9 and lays down that the

father and mother of a child has equal right to give their child in adoption, but they must

gives the consent to give the child in adoption.

128
 3.11Criticism of the Hindu Adoption and Maintenance Act

On the basis of the above study the researcher has criticised the Hindu Adoption

and Maintenance Act, 1956 on the following grounds-

I. The Hindu Adoption and Maintenance Act is not a child oriented legislation.

According to Hindu Adoption and Maintenance Act the child who may be adopted must

be a Hindu, must not be a Muslim, Christian, Parsi. The view of respondents (social

workers) on the interview also lays down the same. According to them the Hindu

Adoption and Maintenance Act incorporates the law of adoption as an institution for the

benefit of only issueless parent but remains silent on the welfare provision of child.

According to the Act a Hindu cannot adopt a son if he or she has a son or grand-son,

again he cannot adopt a daughter if he or she has a daughter or grand-daughter. So a

Hindu having a son is prohibited to adopt a son who is orphan and who needs a family

for his well development.

II. Hindu Adoption and Maintenance Act provides the determination of adoptive

mother and step-mother in four situations i.e. in case of adoption made by a married

Hindu during the life time of her husband or subsistence of her marriage, adoption made

by a widower or bachelor after remarried or married and widow or an unmarried

woman. But it does not cover other corner such as----

A. Adoption made by widow who does not marry then whether the child

adopted would also become the child of the deceased husband, conversely

whether the adopted child of the widower would also become the child of the

deceased husband is not clearly mentioned in the Act.

129
 B. In case of adoption made by a divorced husband whether the divorced wife

would become adopter mother of the child and conversely where the

divorced wife adopt a child whether the child entitled any right from the

divorced husband of his adopted mother is not specifically mentioned.

III.The Hindu Adoption and Maintenance Act is not an exhaustive legislation.

The same view is given by the respondent (social workers) in the interview schedule

(Question No.2). It does not precisely prescribe the procedure of adoption. Only proper

or actual giving and taking procedure is prescribed. Again it does not provide the

provision of penalty. After adoption the adopted child is entitled equal right with the

natural born child in the adoptive family. After adoption the child may be deprived his

right or an adoptive parent may treated the child with cruelty. But the Act does not deal

with these provisions.

V.The Hindu Adoption and Maintenance Act provides that consent of the spouse

is not required at the time of adoption when he or she convert to other religion or

becomes unsoundness of mind. But the Act does not deal with the reconversion of the

spouse after adoption. After adoption when the spouse reconvert to Hindu what will be

the status of that adoption, is not prescribed by the Act.

From the above discussion we can say that Hindu Adoption and Maintenance

Act is not a complete Act which deals only with the welfare of the parent but not with

the welfare of the child. So it should incorporate the provisions, which are not

incorporated by the enactment. The respondent (social workers) of interview schedule

also mentioned that the adoption provision under the Hindu Adoption and Maintence

Act should be abolished or should be amended.

130