Adoption under The Hindu Adoptions and Maintenance Act, 1956

Adoption under The Hindu Adoptions and Maintenance Act, 1956

Introduction

This article explaining Adoption under The Hindu Adoptions and Maintenance Act, 1956, is written by Vikranta Pradeep Barsay a student of National Law University and Judicial Academy, Assam.

In a legal adoption, an adult assumes the responsibility of an unrelated child as its parent, wherein a parent-child relationship is created between two parties who are not naturally related.[1] Adoption of a child happens when its birth parents are either unwilling to or unable to care for the said child; additionally, a child goes for adoption if its birth parents are bereft of life.[2]

In a nutshell, adoption permanently abrogates the legal rights, responsibilities, and obligations between biological parents and their child while establishing new rights and duties between the said child and its adoptive parents in conformity with the legislative statutes of the state.[3]

The Hindu Adoptions and Maintenance Act, 1956 (henceforth, referred to as HAMA, 1956) was passed around the time when Hindu customary traditions were being codified into standard laws with the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, and the Hindu Minority and Guardianship Act, 1956 under the patronage of Lt. Pandit Jawaharlal Nehru.[4] The HAMA, 1956, creates a uniform procedure for a Hindu adult to adopt a child (either male or female) in accordance with the law.

Although the HAMA, 1956, does not explicitly define adoption, one can rely on Justice M. Nair’s definition in the case of Ghanta China Ramasubbayya v. Moparthi Chenchuramayya (1948) 50 BOMLR 547 where adoption is a juridical act that creates a civil relation of paternity and affiliation between two persons not related by nature. Florence Rondell and Anne Marie-Murray believe that adoption provides the psychological and physical benefits of family life to a child who is otherwise deprived of the experience of having parents.[5]

It is worth noting that the religions of Islam (Muslims), Christianity (Christians), Zoroastrianism (Parsis), and Judaism (Jews) in India do not recognize the adoption, wherein the persons of the aforementioned religion must approach the court of law under the Guardians and Wards, Act, 1890, to become legal guardians to a parentless child until the child attains the age of twenty-one years.[6]

Section 2, Sub-Section 1 of the HAMA, 1956, states that the legislation is limitedly applicable to the following persons:

  1. Persons of the Hindu religion, including the followers of the Brahmo Samaj, the Arya Samaj, and the Prarthana Samaj; additionally, Lingayats and Virashaivas are covered under the act (Clause A).
  2. Buddhist, Jain, and Sikh individuals are considered to be Hindu under the provisions of the act. (Clause B).
  3. Not applicable to persons of the Muslim, the Christian, the Parsi, and the Jewish religion (Clause C).

It is worth understanding that Section 2, Sub-Section 1 of the HAMA, 1956, elucidates the situations where an individual (either legitimate or illegitimate) can be affirmed as a Hindu under Clause A and B if and only if either of the following conditions is met by the said individual:

  1. Both parents of the said individual are Hindus.
  2. Any one of the parents is a Hindu, wherein the said individual is bought up as a member of the Hindu community/ group to which the Hindu parent belongs.
  3. The said individual was abandoned by their parents, wherein the individual has been raised as a Hindu.
  4. The said individual was either converted or reconverted to the Hindu religion.

It is worth mentioning that the Hindu text of Manusmriti talks about the adoption of someone else’s son and raising him as one’s son (Dattaka), wherein the relationship of the adopted son with his old family is severed while acquiring new rights, duties and status in his adopter’s family.[7] The HAMA, 1956, however, does not differentiate between the adoption of either a son or a daughter, wherein a gender-neutral term ‘child’ is used within the act.[8]

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Capacity to Adopt

Sections 7 and 8 of the HAMA, 1956, outline the capacity of a Hindu male and female respectively to adopt a child. Section 7 of the HAMA, 1956, dictates that a Hindu male must neither be a minor (below eighteen years of age[9]) nor be of unsound mind. If a Hindu male is married to a wife, then the willing consent of the wife is necessary for the adoption of a child; however, if the wife is either deceased or declared to be of unsound mind by a jurisdictional court of law, then the condition of consent can be waived.

It is worth noting that the consent of an absconded wife is essential to the adoption of a child by a Hindu male (her husband) unless the wife can be presumed as dead under Section 107 of the Indian Evidence Act, 1872,[10] wherein the husband cannot presume the death of the absconded wife unless no one has heard from her for not less than seven, continuous years (or three to four periods amounting to seven years).[11]

If a Hindu male has multiple wives, then the consent of all wives is essential to the adoption of a child unless the consent of any one of the wives is unnecessary owing to any of the aforementioned reasons (Section 7 of the HAMA, 1956).

Section 8 of the HAMA, 1956, puts forth that a Hindu female can adopt a child under the act if and only if she is not associated with any living husband, i.e. the Hindu female must be either a widower or a divorcee (or actively unmarried) while being not only of sound mind but also of major age (above eighteen years of age).[12]

It is worth noting that a single Hindu female can adopt a child of any gender; however, a single Hindu male cannot adopt a girl child; additionally, the minimum age difference between a child and its adoptive parent must be twenty-five.[13] A married woman can opt for adoption under Section 8 of the HAMA, 1956 if either of the following conditions is met:

  1. The husband is declared to be of unsound mind by a jurisdictional court of law.
  2. The husband is no longer a Hindu by religion.

Capacity to Offer for Adoption

Section 9 of the HAMA, 1956, postulates that a child can be given for adoption by either its biological father of the child with the explicit and express consent by the biological mother (Sub-Section 2) or by its legal guardian (Sub-Section 1). The consent of the biological mother can be waived off if and only if either of the following conditions is met under Sub-Section 2:

  1. The biological mother is either evidently or presumably dead.
  2. The biological mother is no longer a Hindu by religion.
  3. The biological mother is deemed to be of unsound mind by a jurisdictional court of law.

Although the biological mother cannot offer her child for adoption, she can do so under Sub-Section 3 if and only if either of the following conditions is met:

  1. The biological father is either evidently or presumably dead.
  2. The biological father is no longer a Hindu by religion.
  3. The biological father is deemed to be of unsound mind by a jurisdictional court of law.

An individual can become the legal guardian of a child in one of two ways: a) The will of the child’s parents names the individual as the legal guardian of their child or b) The jurisdictional court of law declares the individual as the legal guardian of a child.[14] The legal guardian comes within the ambit of adoption if and only if either of the following conditions is met under Sub-Section 4:

  1. The biological parents are either presumably or evidently dead.
  2. The biological parents have abandoned the child.
  3. The biological parents have been declared to be of unsound mind by the jurisdictional court of law.
  4. The child’s parentage is unknown.

It is worth noting that a guardian can offer a child for adoption to anyone, including itself, if and only if the jurisdictional court of law provides permission to the legal guardian on either one of the following grounds:[15]

  1. The adoption intends to seek the welfare of the adopted child, wherein the wishes of the said child are being considered by the adoptive individual in light of not only the age but also the level of understandability of the adopted child (Section 9, Sub-Section 5 of the HAMA, 1956).
  2. Unless the jurisdictional court of law sanctions it, the applicant for adoption (the legal guardian) must neither receive nor agree to receive any compensatory payment, reward, etcetera from any person associated with the adoption procedure.[16]

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Capacity to be Adopted

A set of four conditions have to be met for a child to be adopted under Section 10 of the HAMA, 1956, wherein the child must be a Hindu (or raised in the Hindu religion) under Section 2, Sub-Section 1 of the HAMA, 1956. If a child had been previously adopted (Section 10, Clause 2) and if a child has crossed fifteen years of age (Section 10, Clause 4), then the child is not capable of being adopted; additionally, a married child is barred from adoption (Section 10, Clause 3).

If the adoptive parties have a communal custom where married children and children above the age of fifteen can be adopted, then the provisions under Section 10, Clauses 3 and 4 can be overlooked.[17]

Section 3, Clause A of the HAMA, 1956, defines a custom as any rule that has been uniformly and continuously treated as a law by Hindu individuals in a particular tribe, community or familial group.

Justice Vaidya in the case of Haribai v. Baba Anna & Anr. (1977) AIR BOM 289, held that the aforementioned ‘custom’ does not refer to customs that have been established after the legislation came into force in 1956, wherein certain customs under the Bombay School of Hinduism of the Mitakshara School[18] in particular regions of India allow the adoption not only of a married individual (he/ she may have children of their own) but also of an individual who is much older than the adoptive parents;[19] such long-established customs and rules of conduct in a particular community are upheld within the ambit of the legislation even though the customs existed before the legislation came into force.[20]

Although the adoption of a child whose age is higher than the age of its adoptive parent/s is contrary to the widely held notion about adoption, it cannot be prohibited by the force of law since the practice is customary along the lines of Hindu law is many parts of India, wherein the court of law must interpret the custom on a case-by-case basis.[21]

It is worth noting that a Hindu custom in a particular area of India needs to be proven in a court of law with satisfactorily well-established proofs and pieces of evidence, which is not only clear but also unambiguous, wherein a disputed custom must be self-standing with judicial cognizance[22] that cannot be deduced from another custom by either analogy or extension of reasoning.[23]

It is worth noting that Hindu Jats recognize the custom of adopting a male irrespective of his age; hence, the adoption of a Jat boy (whose age was beyond fifteen years) was upheld by Justice V. Ramaswami in the case of Maya Ram v. Jai Narain (1989) AIR P&H 202.

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Validity of an Adoption

Section 6 and Section 11 of the HAMA, 1956, outline the requisites and conditions that need to be fulfilled for an adoption to be valid under the provisions of the act. In the purest form, an adoption is void in the eyes of the law even if one provision under Sections 7, 8, 9, and 10 of the HAMA, 1956, is invalid, wherein a valid adoption must ensure the capacity of the adoptive party under Sections 7 and 8 of the HAMA, 1956 (Section 6, Clause 1 of the HAMA, 1956), the capacity of the party that offers the child for adoption under Section 9 of the HAMA, 1956 (Section 6, Clause 2 of the HAMA, 1956) and the capacity of the adopted child under Section 10 of the HAMA, 1956 (Section 6, Clause 3 of the HAMA, 1956).

Section 6, Clause 4 of the HAMA, 1956, dictates the compliance of adoption with the conditions illustrated under Section 11 of the act,[24] wherein the following conditions must be positively met for an adoption to be valid:

  1. The adoptive party (either male or female) must not have a living Hindu child (either son or daughter) at the time of adoption of the same sex as the sex of the adopted child (Section 11, Clauses 1 and 2). The adoptive party must not have a living Hindu grandchild (via their son) of the same sex as the sex of the adopted child, wherein the living grandchild may be either legitimately born to the son or adopted by the son. In a nutshell, an adoptive party can adopt a child whose sex is different from the sex of their biological child (Biological Child: Male:: Adopted Child: Female, Biological Child: Female:: Adopted Child: Male).[25]

Ex: If a Hindu male decides to adopt a boy, then the male should have neither a living Hindu son nor a living Hindu grandson (via the said male’s son, either legitimately or adoptively) at the time of adoption under Section 11, Clause 1 of the HAMA, 1956.

  1. If a Hindu male wishes to adopt a Hindu female under the provisions of the act, then the two aforementioned parties must be separated by a minimum of twenty-one years of age (Section 11, Clause 3).
  2. If a Hindu female wishes to adopt a Hindu male under the provisions of the act, then the two aforementioned parties must be separated by a minimum of twenty-one years of age (Section 11, Clause 4). Justice R. Misra and Justice P. Mohanti in the case of Golak Chandra Rath v. Krutibas Rath & Anr. (1979) AIR Ori 205, held that an adoption stands invalidated where the age gap between the adoptive female and the adopted male is less than twenty-one years.
  3. The same Hindu child cannot be adopted by more than one party simultaneously (Clause 5).
  4. The adoptive party must adopt a child with the express intention of transferring the adopted child from its original position (either Family of Birth or Family of Place when the adopted child’s parentage is unknown due to abandonment of the said child) to its adoptive position (either adoptive parent/s or adoptive legal guardian) under Section 11, Clause 6.

It is worth understanding that the non-adherence of any provision under Sections 6 and 11 under Chapter II of the HAMA, 1956, voids an adoption in the eyes of the law.

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Effects of an Adoption

In a nutshell, an adoption severs the ties of the adopted individual with its Family of Birth from the date of adoption while creating new ties with the adoptive party under Section 12 of the HAMA, 1956. It worth understanding that an adopted individual cannot subsequently marry a person with whom the former could not have married if it continued with its Family of Birth (Section 12, Clause A), i.e. the adopted child cannot marry anyone from their Family of Birth (supposed incestuous relationships).[26]

The property owned by an adopted individual before the date of adoption continues to be owned by it; however, the adopted individual may be required to fulfill certain obligations attached to the property (including the maintenance of its Family of Birth if necessary) under Section 12, Clause 2. Clause 3 of the same section commands the adopted individual to not renege on any person (including the members of the Family of Birth) who is associated with the former’s property (from before the date of adoption) after the individual has been adopted.

Similarly, the adoption of an individual does not bar the adoptive parties from disposing of their property either through a will or as a gift (Section 13 of the HAMA, 1956), unless an explicit agreement prevents them from doing so.

A valid adoption cannot be abrogated at the instance of either the adoptive party or the adopted individual once the adoption has been finalized (Section 15 of the HAMA, 1956), wherein the adopted individual cannot dismiss its rights and obligations as a child of the adoptive party whilst returning to its Family of Birth after its adoption has been validated.[27]

Section 14 of the HAMA, 1956, outlines four situations where the mother of the adopted individual is ascertained under the provisions of the act:

  1. If a Hindu male adopts a child, then the living wife of the Hindu male becomes the adoptive mother of the child (Section 14, Sub-Section 1).
  2. If the Hindu male in the aforementioned situation has more than one wife, wherein the consent of all wives is taken under Section 7 of the HAMA, 1956, then the eldest wife (first marriage of the Hindu male) becomes the adoptive mother of the adopted child while the other wives assume the role of stepmothers (Sub-Section 2).
  3. If a single Hindu male (either a bachelor or a widow) adopts a child, then the subsequent wife of the male (if any) becomes the stepmother of the child in the future (Sub-Section 3).
  4. If a single female (either a spinster or a widower) adopts a child, then the subsequent husband of the female (if any) becomes the stepfather of the child in the future (Sub-Section 4).

Conclusion

The Hindu Adoptions and Maintenance Act, 1956, outlines the process of adopting a Hindu child by either a Hindu male or Hindu female (either single or widowed) within Sections 1 through 17 of the act.

In its truest sense, the process of adoption permanently abrogates the ties of an adopted individual with either its Family of Birth or Family of Place (if the adopted child had been abandoned by its biological parents resulting in the absence of parentage for the said child) and creates new ties with the adoptive parties, wherein the adopted child has the rights and obligations as the child of its adoptive parties.

It is worth noting that exclusive adoption legislation is absent from other non-Hindu religions (Islam, Christianity, Zoroastrianism, Judaism) akin to the Hindu Adoptions and Maintenance Act, 1956, for Hindus. The legal provisions within the act are limited to Hindu adoptive parties and adopted children (the former and the latter must practice Hinduism at the time of adoption).

The act focuses on the capacity of who can be adopted (Section 10), who can adopt (Section 7 and 8), who can give the child for adoption (Section 9) along with focusing on the contentions for the validity of the adoption (Section 6 and 11).

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[1] Adoption, THE FREE DICTIONARY. https://legal-dictionary.thefreedictionary.com/adoption#:~: text=n.,were%20the%20adopter’s%20natural%20child (last visited Apr. 16, 2021).

[2] What is Adoption Law? FINDLAW. (Oct. 08, 2020), https://www.findlaw.com/hirealawyer/choosing-the-right-lawyer/adoption-law.html.

[3] THE FREE DICTIONARY, supra note 1.

[4] Hindu Adoption and Maintenance Act, SOO LEGAL. https://www.soolegal.com/rc/hindu-adoption-and-maintenance-act (last visited Apr. 16, 2021).

[5] Deepesh Singh, 08 – Chapter 3: Concept of Adoption, SCRIBD, https://www.scribd.com/document /435526139/08-chapter-3-pdf (last visited Apr. 16, 2021).

[6] Aishwarya Moitra & Naman Keswani, Hindu adoption law, LEXLIFE INDIA (Mar. 24, 2020), https://lexlife.in/2020/03/24/hindu-adoption-law.

[7] Arshdeep Bedi, Adoption Under The Hindu Adoptions and Maintenance Act, 1956: An Overview, LEXPEEPS (Oct. 07, 2020), https://lexpeeps.in/adoption-under-the-hindu-adoptions-and-maintenance-act-1956-an-overview.

[8] Id.

[9] The Indian Majority Act, 1875, No. 9, Acts of Parliament, 1875 (India).

[10] Bholooram (Bhola) & Ors. v. Ramlal & Ors., AIR MP 198 (1989) (Madhya Pradesh High Court).

[11] Shankareppa v. Shivarudrappa & Ors., ILR KAR 630 (1962) (Karnataka High Court).

[12] Sushant Biswakarma, All you need to know about Adoption and Maintenance under Hindu Laws, IPLEADERS (Feb. 29, 2020), https://blog.ipleaders.in/hindu-adoption-maintenance.

[13] Disha R. Choudhury, Girl child is adopted more in India. All you need to know on adoption, from CARA, THE INDIAN EXPRESS (Dec. 13, 2019), https://indianexpress.com/article/parenting/family/ child-adoption-cara-india-girl-all-you-need-to-know-6153189.

[14] Mayank Shekhar, Adoption under Hindu Law, LEGAL BITES (Jun. 05, 2017), https://www.legalbites.in/law-notes-hindu-law-adoption.

[15] Sajal Singhal, Concept of Adoption under Hindu Adoption and Maintenance Act, 1956, LAW BHOOMI (Dec. 28, 2020), https://lawbhoomi.com/concept-of-adoption-under-hindu-adoption-and-maintenance-act-1956.

[16] Id.

[17] Harshita Gulati, Learn About Adoption under Hindu Law, CLATALOUGE (Nov. 01, 2020), https://lawctopus.com/clatalogue/adoption-under-hindu-law.

[18] Shreya Potdar, Concept of Adoption under Hindu Law & Essentials of Valid Adoption , LAWCOLUMN (Jan. 12, 2021), https://www.lawcolumn.in/concept-of-adoption-under-hindu-law-essentials-of-valid-adoption.

[19] Nathaji Krishnaji v. Hari Jagoji, 8 Bom HCR 67 (1871) (Bombay High Court).

[20] Haribai v. Baba Anna & Anr., AIR Bom 289 (1977) (Bombay High Court).

[21] Balabai Tukaram Babar v. Mahadu Krishna Babar, 26 BOMLR 222 (1924) (Bombay High Court).

[22] Anirudh v. Babarao, AIR Bom 391 (1983) (Bombay High Court).

[23] Laxman Ganpati Khot & Ors. v. Anusyabai & Anr., AIR Bom 264 (1976) (Bombay High Court).

[24] Shivani Rani, An overview of adoption laws in India, LAW TIMES JOURNAL (May. 01, 2020), http://lawtimesjournal.in/an-overview-of-adoption-laws-in-india/#_ftnref2.

[25] Krishnendra Joshi, Adopting a Child under Hindu Law, IPLEADERS (May. 14, 2019), https://blog.ipleaders.in/adopting-child-hindu-law/#:~:text=Under%20the%20Hindu%20Adoption%20 and%20Maintenance%20Act%2C%201956&text=Any%20Female%20Hindu%2C%20having%20a,the%20consent%20should%20be%20free.

[26] Singhal, supra note 15.

[27] Ajin Raj, Adoption Under Hindu Law, OUR LEGAL WORLD (Jun. 18, 2020), https://www.ourlegalworld.com/adoption-under-hindu-law.

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