ADOPTION UNDER HINDU LAW

Adoption is a fairly ancient practice. In ancient times, in hindu culture it was considered that the
family line can be continued only by a male heir. Hence every hindu family had a desire to have at
least one male child and this desire of male heir was basis of the practice of adoption among Hindus.
In older times adoption of only male child took place. According to Manu, adoption is the “taking of
a son, as a substitute for the failure of a male issue.” It was transplantation of a male child born in
one family to another family where he is given away by his birth parents as a gift.
In the present scenario, the law of adoption has been codified under  the Hindu Adoption and
Maintenance Act, 1956 (HAMA,1956) and all the adoption has to be done in conformity to this act.

ESSENTIALS OF A VALID ADOPTION

Section 6 of the HAMA,1956 provides the following essentials of a valid adoption:

1. The person adopting must have the capacity and the right to adopt.
2. The person giving in adoption must have the capacity to do so.
3. The person being adopted must have the capacity of being adopted.
4. The adoption must be made in compliance with the other conditions given under Chapter
II of Hindu Adoption and Maintenance Act, 1956.

CAPACITY TO ADOPT

Section 7 provides that any hindu male who is of sound mind and is not a minor has the capacity
to adopt a son or a daughter. But if the hindu male has a wife living at the time of adoption then
he cannot adopt without the consent of his wife unless
 The wife has completely and finally renounced the world, or
 The wife has ceased to be a Hindu, or
 The wife has been declared to be of unsound mind by a competent court.

Section 7 also provides an explanation that if the hindu male has more than one wife then it is
necessary to obtain the consent of all the wives before adoption.
In the case of Krishna Chandra Sahu v. Pradeep Das1, the court held that if the wife does not
have any of the above three disabilities, then obtaining the consent of the wife is mandatory.

Section 8 provides that any hindu female who is of a sound mind and is not a minor. However if
she has a living husband then she cannot adopt without the consent of the husband unless the
husband has completely and finally renounced the world or has ceased to be an hindu or has been
declared of unsound mind by a competent court.

PERSONS CAPABLE OF GIVING IN ADOPTION

1
AIR 1982 Orissa 114
According to section 9 , only the father , mother or the guardian of the child are capable to give
the child in adoption.
Capacity of the father to give in adoption: If the father is alive, only he has the capacity to give
the child in adoption with the consent of the mother unless the mother has completely and finally
renounced the world or has ceased to be hindu or has been declared of unsound mind by a
competent court.
Capacity of the mother to give in adoption: A mother can give a child for adoption only if the
father is dead or has renounced the world or has ceased to be a hindu or has been declared of
unsound mind by the competent court.
Capacity of guardian to give in adoption: A guardian can give a child for adoption if both father
and mother are dead or has renounced the world or has been declared of unsound mind by the
competent court.

WHO CAN BE ADOPTED

Section 10 provides that a person who fulfills the following conditions can be adopted:
I. He/she should be a Hindu
II. He /she should not have already been adopted
III. He/she has not already been married,unless there is a custom or usage which permits the
adoption of a married person.
IV. He/she has not completed the age of 15 years unless there is a custom or usage permitting
such adoption.

OTHER CONDITIONS OF A VALID ADOPTION

Section 11 provided for following conditions which must be complied with in very adoption:
 If the adoption is of a son then the adoptive parents must not have and hindu on, son’s
son or son’s son’s son living at the time of the adoption.
 If the adoption is of a daughter then the adoptive parents must not have a hindu daughter
or son’s daughter living at the time of adoption.
 If a male adopts a daughter or if a female adopts a son then there must be 21 years of age
gap between the adoptive father/mother and the child.
 Same child cannot be adopted by two or more persons simultaneously.
 The child to be adopted must be actually given by his birth family to his adoptive family.

EFFECT OF ADOPTION

Section 12 provides that an adopted child shall be deemed to be the child of the adoptive
father/mother for all purposes from the date of adoption and from that date all the ties of the
child with his birth family will be deemed to be severed. However the child canot marry anyone
who he could not have married if he continued in his birth family. And any property vested in the
adoptive child shall continue to vest in him even after his adoption.

VALID ADOPTION CANNOT BE CANCELLED

Section 15 provides that a valid adoption cannot be cancelled by the adoptive father/mother.
Also, an adopted child cannot renounce his status of adopted child and return to his/her bith
family.
Section 17 prohibits the payment or receipt of consideration for adoption of any person and
contravension of this section is punishable with imprisonment which may extend upto 6 months
or fine or both.