A legal affiliation of a child is called adoption, which relies upon the

subject matter of different personal laws in India. Few of these have to

reach court under the Guardian and Wards Act, 1890, like Muslims,
Christians, Parsis. They can only take a child for foster care. A child is
free to break all the connections once he is a major, i.e., when he/she
reaches 18 years of age. Also, such a child does not have any legal right
to inheritance.

There are three different legal systems that prevalent in dealing with
adoption in India, Guardians and wards Act, 1890, Hindu Law, and
Muslim Law. And there are three kinds of guardians, a natural guardian,
a testamentary guardian, and a guardian appointed by law.

Let us see the adoption laws under different personal laws in India:

Child Adoption Under Hindu Law

According to the Hindu Law, adoption is more of sacramental than of a
secular act. The object of adoption can be set into two parts:

1. To secure the continuation of one’s descent

2. To ensure the performance of his/her funeral rights.

The Shastras in Hindu says that the adopted child should be a reflection
of a natural child, which guarantees the love and protection of the child.
When a child gets adopted, not only he gets a set of adoptive parents,
but also he gets all relations on the paternal and maternal side in the
family come into existence. This also means the adopted child cannot
marry the other child of his/her parents, whether natural or adopted.

However, the modern adoption laws were made and penned to give a
fellow feeling and relief to a childless person/couple and, on the other
hand, to provide a proper family filthy life to an unwanted, disputed, or
an orphan child.

Provisions Under the Hindu Adoption And Maintenance Act, 1956

The Hindu Adoption and Maintenance Act, 1956, applies only to the
Hindus, who lies under the definition of a Hindu, mentioned in Section 2
of the Act. The description also includes people who are Hindu by
religion such as Virashaivas, Lingayats, Arya Samaj, or Buddhists, Jains,
and Sikhs. Also, this Act undertakes all people who are not Muslim,
Christian, Parsi, or Jew by religion, as they have their own laws. This
Act can also be applicable to any legitimate or illegitimate child whose
parents are unknown and, he/she is brought up as a Hindu, a Buddhist, a
Jain, or a Sikh. After the implementation of this Act, it has regulated a
lot of adoption cases in India.

The Act came in existence on 21st December 1956. Before this Act, only
males were entitled to get adopted, but this Act made a provision for
females as well to get adopted. The Hindu Adoption and Maintenance
Act, 1956, applies to the whole of India, except the state of Jammu and
Kashmir. Other than Hindus, it is also applicable to Buddhists, Jains,
Sikhs, and to a person who is by religion, not a Muslim, Christian, or
Parsi.

Essentials Of A Valid Adoption Under Hindu Adoption And Maintenance Act, 1956
According to the provisions of the Act, no adoption is a valid one except:

 The person who is willing to adopt should be capable of taking

adoption of a child
 The person who is giving the child for adoption is capable of giving
an adoption
 The adopted child should be legally capable of getting adopted
The adoption should be completed by performing an actual giving and
taking ceremony named, ‘Data Homan’ (oblation to the fire). It is
noteworthy that these points may not be essential in all cases when it
comes to the validity of an adoption.

Who Can Adopt

In order to adopt a child in India, a Hindu male have to be sound mind,
major and should have the capacity to give a proper life (Financially) to
adopt a son or a daughter. Along with this if he has a living wife, the
adoption should take place only after her consent, unless the wife has
completely and openly renounced the world, she has quit Hinduism, or
has been declared unsound mind by the concerned court.

In order to adopt a child in India, a Hindu female have to be sound mind,

major and should have the capacity to give a proper life (Financially) to
adopt a son or a daughter. Another vital requirement for a Hindu Female
to adopt is being single (not married). In case she is married, her
marriage has been either dissolve, or the husband is dead or has
completely and openly renounced the world, he has quit Hinduism or has
been declared unsound mind by the concerned court.
The notable factor is this if a Hindu female with a normal married life
wishes to adopt a child, the adoption formalities have to be done with
the consent of her.

Who Can Give A Child For Adoption

According to the Hindu Adoption and Maintenance Act, 1956, the
following people are able to give a child for adoption:

1. The father with the consent of the mother (if she is alive)

2. Only father incase the wife has completely and openly renounced the
world, she has quit Hinduism or has been declared unsound mind by the
concerned court.

3. Only mother in case her marriage has been either dissolve, or the
husband is dead or has entirely and openly renounced the world, he has
quit Hinduism or has been declared unsound mind by the concerned
court.

4. The legal guardian with the permission of the relevant court in case
the child’s both father and mother are either dead, or have entirely
renounced the world, or has abandoned the child, or has been declared
unsound mind by the concerned court. It is important for the court to be
satisfied that the adoption is justified in the welfare of the child, and all
the requirements and wishes of him/her will be fulfilled by the adoptive
parents with regard to his/her age and age understanding.

Who Can Be Adopted

According to the Hindu Adoption and Maintenance Act, 1956, a
child/person can get adopted only if:

1. He/she is a Hindu

2. He/she has not already been adopted

3. He/she is single (not married), except there is some usage or custom

applicable on him that allows him/her to get adopted being married

4. He/she has not completed the age of 15 years, except there is some
usage or custom applicable to him that allows him/her to get adopted
over 15 years of age.

Other Valid Conditions For Adoption Are

1. In case the adoption is being done for a son, the adoptive parent
should not have a Hindu son’s son’s son or son’s son’s son, being alive at
the time of adoption.

2. In case the adoption is being done for a daughter, the adoptive parent
should not have a Hindu daughter or son’s daughter being alive at the
time of adoption.

3. In case the adoption is being done for a male, by a male parent, the
father adopting should be 21 years older than the adopted son.

4. In case the adoption is being done for a male, by a female parent, the
mother adopting should be 21 years older than the adopted son.

5. A child cannot get adopted simultaneously by two or more parents.

He/she has to be actually taken for adoption with an intention to
transfer the child from his birth family.

The Guardian And Ward Act, 1980

The personal laws in India like Muslim Law, Christian Law, Parsi Law, do
not acknowledge a complete adoption. The Non-Hindus in India do not
have any authorized law to adopt a child legally; they can only take a
‘guardianship’ under the Guardian and Ward Act, 1980.

However, guardianship does not give the same status as a biological

child. Unlike, as mentioned before, under the Hindu Adoption and
Maintenance Act, 1956, an adopted child does not have any legal right
of inheritance of the property. This Act only recognizes a guardian-ward
relationship, which exists only until the ward reaches 21 years of age.

Adoption – Muslim Law

Under Islam, there is nothing as adoption; it is not recognized by Muslim
Law. In the landmark case, Mohammed Allahabad Khan v. Mohammad
Ismail, it was mentioned that there is nothing in the Muslim Law that is
adoption or similar to adoption as recognized by the Hindu System.

The nearest approach to adoption under Muslim Law is

‘Acknowledgement of Paternity’. The difference between the two can be
stated that in adoption, the adoptee is the known son of another person,
while one of the essentials of acknowledgement is that the
acknowledgee must not be known son of another.

However, under the Guardian and Ward Act, 1980, an adoption from an
orphanage is permissible by the courts.
Adoption In Parsi And Christian Law
Similar to Muslim Law, Parsis in India do not acknowledge adoption, and
they too can adopt a child from an orphanage with the permission of the
concerned court under the Guardian and Ward Act, 1980.

In Christianity, there is also no acknowledgement of adoption. Adoption

is a subject matter of personal law since it is a legal affiliation of a
child. Similar to Muslims and Parsis, Christians also can adopt a child
from an orphanage with the permission of the concerned court under the
Guardian and Ward Act, 1980. Under the Act, a Christian can only take a
child for foster care. Once the child is 21 years of age, he/she is free to
choose to live with the guardian or to break all the connections. Also,
such a child does not have any legal right to inheritance of the property.

Recent Happenings
Recently, a uniform adoption law has been stressed by the National
Commission on Women in India. The commission emphasized on this
particular matter because, the general laws relating to guardianship,
under the Guardians and Wards Act, 1890, lays down the father’s right
primary than the mother. Also, under the Act, no other person is entitled
to adoption until he is found unfit by the court. The Act also mentions
that it is vital for the court to take the welfare of the child into
consideration, in order to appoint a guardian under the Act.