Introduction:
In Hindu society sonship is a very important institution. It was must for every Hindu to have a son. Hindus believes that son recovers his father from hell or put, that’s why they called son as putra. According to Baudhyayana – ” Through a son one conqueres the world, through a grandson one obtains the immorality, and through a great-grandson one ascends to the highest heaven.”
Having a son by the way of adoption is also in practice from Vedic age. Manu classified sons into two categories, of one of such sub-categories dattaka or adopted son can be found. Before the British rule adoption was considered only as a sacramental act. In modern times also it has been considered both as sacramental and secular act we can cite here famous judgement of Inder Singh v. Kartar Singh 1966 punj 258. Sacramental as it assure carrying out of one’s funeral rituals.
Present scenario is that The Hindu Adoption and Maintenance Act, 1956 has separated from all types of religious and sacramental aspects, now it has become as a secular institution that religious ceremony is not necessary for adoptions.
Who May Take In Adoption:
As per the Act both a Hindu male and female can make adoption. Provided he or she has to be a major and of sound mind. In Naidu v. Naidu 1970 SC 1673 it was held that enquiry of motive for adoption not required necessarily.
Section 7 and 8 of the Act enumerates unsoundness of mind which relates to general condition of mind. No adjudication of insanity by a court is necessary.
Adoption by a Hindu male or female, or whose parents married under the Special Marriage Act, 1954 : A Hindu male or female or whose parents married under the Special Marriage Act 1954 is also capable to adopt. It is also held in Bhima v. Sarat 1988 Ori 19 that if a sonless Hindu has a widowed daughter-in-law he or she will not be barred from taking adoption.
Adoption by a married Hindu male:
For a married Hindu male, taking consent of his wife or wives is mandatory (section 7). Adoption by married Hindu male without consent of his wife or wives is void (section 5 sub-section 1).
When consent of the wife or of any of the not necessary:
Consent of the wife or any of the wives will not be necessary if (i) she ceased to be a Hindu (ii) she has renounced the world (iii) she has been declared to be of unsound mind by a court of competent jurisdiction.
Adoption by a Hindu female:
The Personal Law (Amendment) Act, 2010 substitute section 8 of The Hindu Adoption and Maintenance Act, 1956. Previously a married Hindu woman had no right to adopt a child even with consent of her husband. The new section 8 empowers women to take adoption providing same condition as implied for men in section 7. A widow also can adopt a son or daughter provided she don’t has any child.
“An agreement not to adopt is void being against public policy. Under the Act, even when an adoption is made in consideration of some pecuniary or proprietary benefit ( irrespective of the fact whether consideration has passed or not), the adoption is valid, despite the fact that such agreement is void.” – Paras Diwan, Modern Hindu Law.
Restriction on Adoption:
As per section 11 of the Act some restrictions on adoption are there, these are as follows:
(a) Adoption of son – If any person who wants to adopt a son must not have a Hindu son, son’s son or son’s son’s son may be by legitimate or by adoption. If the son, son’s son or son’s son has ceased to be a Hindu, an adoption of a son will be valid.
(b) Adoption of daughter – Adopter must not have a Hindu daughter or a son’s daughter as a necessary condition for a valid adoption. But if his/her daughter or son’s daughter ceased to be a Hindu, adoption of a daughter will be valid.
(c) Minimum age difference between the parent and child – If a Hindu wish to adopt a child of the opposite sex, he or she must be older than the child by at least 21 years.
As per section 1(vi) of the Act there is one restriction on adoption that is mentioned below:
(a) Same child can’t be adopted by two person – Two person means other than husband and wife, it also means the child can’t continue to be a son or daughter simultaneously, in his/her natural family as well as in the adoptive family.
Married person may be taken in adoption:
Under the Bombay school, one can adopt a married person as per section 10(iii).
Can child of a married and adopted person may be given for adoption by his/her father if such child born to him before adoption ?
A full Bench of Bombay High Court Nagpur Bench held in Sarat Chandra v. Shanta Bai, 1944 Nag 66 (FB) that a father can give in adoption of his son born to him before he himself adopted to someone. But in Martland v. Narayan 1939 Bombay 305, a full Bench of Bombay High Court decided that after dattaka adoption adopted considered to be completely separated from his natural family as a result his right to give his son in adoption is lost after he himself gets adopted in others family.
Adoption of illegitimate child and certain capacity of mother to give her child in adoption :
The mother of an illegitimate child can give the child in adoption and putative father’s consent not needed.
The term “mother ” does not includes step mother or adoptive mother. But due to conversion to another religion a mother’s right to give the child in adoption will not be affected. Right to give her child in adoption of a mother will not affect on her divorce.
Implication of the term gurdian :
The term ‘gurdian’ implies both de jure and de facto gurdians. A manager, secretary or person in charge of an orphanage or a person by whom the child has brought up, or one who taking care of the child is, can give the child in adoption, it was held in Dhanrai v. Suraj, 1981 Pat 204. A gurdian can give his child in adoption in following situations : (a) If both of the parents are dead, (b) if parents have renounced the world finally and completely, (c) if child has been abandoned by parents, (d) if the parentage of the child can’t be found, (e) if parents have been declared to be of unsound mind by a Court of competent jurisdiction.
Deemed custody of abandoned child :
It was held in Sarkar v. Supdt. Jawaharlal Nehru Memorial Hospital 1996 cal 264 that Juvenile Board is deemed custodian of an abandoned child. Such child may be given in adoption with prior permission of Court.
Ceremonies of Adoption :
According to section 11(vi) of the Act to be an adoption valid, necessary ceremonies must be performed. Before 1956 two ceremonies were considered as mandatory: (i) giving and taking ceremony and (ii) Datta Homa. According to the provision of section 11(vi) and also Judgement of Hon’ble High Court in Dhani Bai v. Neem, 1972 Raj 9, Datta Homa no more is a necessary ceremony.
Registration of adoption :
However registration of adoption is not mandatory, it was held in many cases like K. Srinivasan v. Srinivasan, (1973) 2SCC 327 ; Ajitab Uddin v. Chandan, 1977 Ori 69 ; Arakhita v. Kandhuni, 1988 Ori 199; that according to section 16 of the Act by a register documents of adoption, presumption can be made that such adoption is as per provisions of the Act.
Relationship of Adopted Child :
Section 14 enumerates relationship of Adopted child with some specific relatives of adopter. These are as follows :
(i) When a male adopts a child with prior consent of his wife, she will become adopter mother of the child.
(ii) When an unmarried, widow or widower adopt a child and married subsequently, the spouse in relation to the child is a step-parent( stepmother or stepfather).
“In Sawan Ram the Supreme Court says that the deceased husband will be the adoptive father.” – Dr. Paras Diwan, Modern Hindu Law.
Conclusion :
Under old and new Hindu Law there is a similarity that giver and taker of the child in adoption can’t be a same person. So, as per the Act a mother could not adopt a child whom she gives birth.A illegitimate child could be adopted by the putative father of such child. A gurdian could not be able to adopt his/her ward, but by the Hindu Adoption and Maintenance (Amendment) Act 1962 gurdian himself can adopt the child in specific conditions lays down in the Act.
References:
Dr. Paras Diwan, Modern Hindu Law ( ALLAHABAD LAW AGENCY, 2023 ).
Dr. S.R.Myneni, Hindu Law (ASIA LAW HOUSE, 2023).
Sir Dinshaw Fardunji Mulla,Satyajeet A Deshai, Hindu Law ( LEXIS NEXIS, 2022 ).