Rajiv Gandhi NATIONAL UNIVERSITY OF LAW,

PUNJAB

Family Law Project

Comparative Analysis Of Adoption Under The
Provisions Of The Hindu Adoptions And Maintenance
Act 1956 And The Juvenile Justice (Care And
Protection Of Children) Act 2000 (2015): A Study

Submitted to: Dr.kamaljit kaur

Submitted By: Sahil Kumar , roll number 16151,

group 19

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Contents
An Introduction..........................................................2
Historical Views.......................................................3
Why Adoption Is Of Legal Nature?.......................3
The Hindu adoptions and Maintenance act, 1956.
(HAMA).....................................................................5
Requisites of a Valid Adoption.................................6
Capacity of Hindu Male to Adopt..........................6
The Juvenile Justice Act, 2015. (JJ)...........................9
Procedure for Adoption..........................................10
Effects of Adoption..............................................12
Conclusion: A Comparison between the Acts..........15
Criticism of the HAMA, 1956...............................15
Criticism of the Juvenile Justice Act, 2015..........16
Bibliography.............................................................17

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An Introduction
There are numerous legislations which talk about numerous concepts as is in the Indian
law. However, in this project one has to discuss what the view on adoption is. It is
definitely to be seen that the legal adoption in India is through The Hindu Adoption and
Maintenance Act, 1956, The Guardians and Wards Act, 1890, The Juvenile Justice(Care
and Protection) Act, 2000and it various amendments. But what is adoption?

“Adoption is the act of legally taking a child to be taken care of as your own” 1

“Adoption means the process through which the adopted child is permanently separated
from his biological parents and becomes the lawful child of his adoptive parents with all
the rights, privileges and responsibilities that are attached to a biological child”2

Historical Views
The above stated are the laws relating to adoption that are going around in the current
scenario but, the legality of adoption has been put to question numerous times in the past
i.e. during the British Raj. It is important to discuss the same because we still follow
certain imperial legislations such as The Indian Penal Code, The Transfer of Property
Act, The Indian Contract Act amongst others. As far as the British are concerned, they did
not hold a positive view on the legality of adoption and an example of the same can be
the Doctrine of Lapse policy of Lord Dalhousie, the then viceroy of India. According to
this policy, an adopted son or an adopted heir could not succeed the throne of a ruler and
the property of the king would fall automatically into the hands of the British. There are
numerous examples of the policy ; Rani of Jhansi was not allowed to install her adopted
son on the throne, The adopted son of the Peshwa Bajirao 2, Nana Saheb was disallowed
the pension he was receiving from the British on the same ground. If one is to consider,
the British followed this policy only because of their imperialistic tendencies. But, All
this is the past and the concept of adoption has now been legal for a long time and to
understand the concept of adoption better we also need to consider the concept behind the
legality of the adoption and its objectives.

1At, https://dictionary.cambridge.org/dictionary/english/adoption (last accessed on10, August, 2018.)

2The Juvenile Justice Act, 2015, s.2 (2).

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Why Adoption Is Of Legal Nature?
Another question that does come to mind is that why is there a concept of legal adoption?

The answer would be that the adoption, through the concept of legal adoption becomes
irrevocable and also, it does provide the child security because his status is that of a child
who is biological in the family which in turn allows him to enforce all the rights that he
has as a child to his parents in the courts of India. On the other hand the child whose
adoption is informal, there is no concept of legal enforcement of his rights and obviously
as of today it is a violation of the law of India.

Objectives of Adoption
Coming to the objectives as to why adoption is there in India or to even say around the
world, one can say that one of the leading factors behind the same is that the parents
want some sort of old age protection by the child. However, in today's scenario with the
increasing number of parents being shunned out of the house by their sons or daughters is
at the worst point but, the Delhi High Court does promise a sort of insurance policy to the
parents wherein, the parent can reclaim the ancestral property in case they are not given
any maintenance by the child or even if they are not maintained by the child properly
according to the standards which they had before retiring or transferring the property in
the name of the children3.The second reason could be to carry forward the name of the
family and the fame of the family that has been going on for ages if the case is so.
Another reason could be to keep the family property secured. But, one of the great
reasons that prevail is that the parents might want someone to perform their last rites and
according to the Hindu law, it should be done by their child because of concept which
says that the last rites of the parents should be performed by the child and that too a male
child so that, they can achieve moksha .

Through the introduction, the concept of adoption, the definition, the history of its
legality in India and its objectives might have become clear but, as this project is about
the provisions on the legal Adoption, I would like to discuss them in detail. Firstly, I
would like to lay down the provisions in the Hindu Adoptions and Maintenance act, 1956

3Shadab Khairi and Anothers. v The State and Others. CM. APPL. 1929/2018

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and the Juvenile justice Act individually and then only in the end give a comparison of
the same.

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The Hindu adoptions and Maintenance act, 1956. (HAMA)
The provisions of adoption contained in the Act specifically state that it applies only to
those cases where the adoption is to a Hindu or by a Hindu. The basic principles of the
family law already are in place to ascertain as to who is a Hindu, A Hindu is firstly, a
person who is Hindu by birth secondly, a person who is Hindu by religion and thirdly, a
person who does not fall into the category of either a Christian, Parsi, Muslim or a Jew
this called the negative definition of Hindu, this need not be discuss it in further details
because we are to ascertain provisions regarding Adoption and not the concept of who is
a Hindu under family law.

The act itself states that its provisions have to be complied with after commencement;
any of the adoptions made in contravention to the act shall be void there on. Another
provision is such that an adoption shall also be void if it creates certain rights in favour of
the family from which the child adopted but only if such right is of a nature that it could
not have been acquired except for the reason of adoption. But also, if there are certain
rights present to the person of the family from which the child is adopted they shall also
not be destroyed in favour of adoption.

Requisites of a Valid Adoption

No adoption shall be valid unless-

 The person adopting has the capacity, and also the right, to take in adoption;
 The person giving in adoption has the capacity to do so;
 The person adopted is capable of being taken in adoption; and
 The adoption is made in compliance with the other conditions mentioned

These above are just the requisites of adoption as mentioned under the act and the
capacity, the right amongst other provisions is to be discussed for further clarity

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Capacity of Hindu Male to Adopt
Section 7 of the act talks about the capacity of a Hindu male to take adoption. The same
provides that any male Hindu firstly, must be of sound mind and secondly, should not be
a minor to adopt either a son or daughter however, there is also a proviso. The proviso is
that if he (the Hindu male) has a wife that is living, he has to take her permission i.e.
consent but also, the consent of a wife is not necessary if she has died, as ceased to be a
Hindu meaning by which has converted to another religion or has been declared of an
unsound mind by the court of competent jurisdiction. These are the provisions that relate
to the capacity of a Hindu male to adopt obviously, there have been certain issues that
have come up in various high courts that will help us further clear out the doubts
regarding the same.

The Madhya Pradesh high court basically dealt with an issue where a person had more
than one wife living and answered the questions as to whether consent of all the wives
was required for valid adoption? The court answered that the consent all wives is
required and any adoption done against the same principles are invalid. 4 The Allahabad
High Court in a case has decided that a grandfather cannot adopt the son of his
daughter5 . Many such cases have already been dealt with by the Calcutta High Court and
even the Delhi High Court but, because the issue regarding the adoption arises only in
case of land disputes, the views of court have come under the land dispute ambit.

Capacity of Hindu Female to Adopt

The Section 8 of the Act talks about the adoption capacity of a Hindu female. The Act
was amended in 2010 which then later served the purpose of equality where in like the
Hindu male the wife would have the capacity to adopt but nonetheless has to seek the
consent of the husband to adopt. The provisions state that any females Hindu who is of a
sound mind and is not a minor has the capacity to adopt if she is not married, her
marriage has been resolved, her husband is dead, has completely and finally renounced
the world, if the husband has ceased to be a Hindu or has been declared of an unsound
mind by a competent court.

4Bholooram and Others v Ramlal and Others 1989 JLJ 387

5Raj Bahadur Singh v Ram Singh and Another Appeal No. 577 of 1979

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There have been numerous cases which have been dealt by the competent high courts like
that of Bombay and Madras High court. In a decided case by Delhi High Court, an issue
arose as to whether an adopted son of a widow would be a preferential hair of the
deceased husband's property as compared to the other collaterals? And whether the
adopted son would be seen in the capacity of being the son of the deceased husband? In
the very case the court held that be adopted son would be as if he is the son of the
deceased husband thus, he would be the preferential hair of the property of the deceased
husband.6

Capacity of Giving Adoption

Section 9 of the act, talks about the persons who are capable of giving adoption. It is
specifically stated through the numerous clauses of the act that the father or the mother if
alive have equal rights to give adoption and also, no one except the father, the mother or
in case there is a guardian has the capacity to give the child for adoption

In case the mother of the child has renounce the world i.e. has become a hermitess, has
renounce Hindu religion or has been declared of an and sound mind by a competent
court, the father alone exercises capacity to give the child for adoption. Similarly the
mother may give the child for adoption if the father is dead, has renounce the world .i.e.
has become a hermit, is not a Hindu or has been declared of unsound Mind by the
competent court.

There is another clause stating that in case both the mother and the father are dead, are
completely renouncing the world, have abandoned the child, have been declared by the
competent court to be of unsound mind or in case the parentage of the child is not known,
the guardian of the child is given the capacity with the permission of the court to give the
child for adoption. Before granting permission to a Guardian to give the child for
adoption the court must be satisfied that the adoption would be of beneficial nature to the
child and no right or money has been granted to the guardian for providing the adoption.

There is also an explanation provision of the section which states that the father and
mother must not be adoptive father and adoptive mother which justifies the fact that an

6Duni Chand etc. v Paras Ram etcetera AIR 1970 Delhi 202

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adoptive parent cannot give the child for adoption. The Guardian for the purposes of this
act in is the guardian appointed by the will of the father or mother or is one appointed or
declared by competent court.

Other Conditions to Be Fulfilled

Section 10 of the Act talks about the person who may be adopted, the provisions say that
person can be adopted only if he or she is a Hindu, has not been adopted before or is
unmarried unless the community has a valid custom which permits the same also, a
person who has not completed the age of 15 only is allowed to be adopted unless again
there is a custom applicable to the parties.

There are various other conditions in the case of adoption with have to be complied with.
A main thing that is very important says that a person cannot adopt according to the act, a
person who is of the same Gender and of Hindu cannot be adopted if there is one living in
the family for example, if a family already has a legitimate Hindu daughter living at the
time of adoption, the cannot adopt a female Hindu.

In section 11, it is stated that if a Hindu male or a Hindu female is to adopt a Hindu
female and or a Hindu male respectively, there must be an age gap at least 21 years
between them. Section 17 of the act specifically state or that a person cannot receive any
reward for payment for as a consideration for the adoption if a person contravenes the
section, “If any person contravenes the provisions of section , he shall be punishable with
imprisonment which may extend to six months, or with fine, or with both.”7

Effects of Adoption
All the main provisions of the act have been dealt with but the most important provision
in the Act according to me is the effect of adoption. Section 12 of the act deals with the
same, the provisions of the act say that an adopted child is legally the child of the adopted
father or the mother or the parents from the date of adoption and all ties the child had
with their biological family are considered to be severed and in place of them come the
relations with they form with the adopted family. But however, there is a proviso to the
same firstly, an adopted child cannot marry a person who he could not have married in

7The Hindu Adoptions and Maintenance Act, 1956. s, 17(2)

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case he was with his biological family secondly any property which was vested in the
child before adoption should continue to be his and thereby also include the obligation of
the relatives or caretakers to maintain the same.

The Juvenile Justice Act, 2015. (JJ)

I have already discussed the definition of adoption under The Juvenile justice Act in the
introduction given before. Now, after having discussed the earlier legislation that is the
Hindu Adoptions and Maintenance Act, 1956 I would like to discuss provisions that are
given in the Juvenile justice (care and protection) Act, 2015. Sections 56 to 73 deal with
adoption in its entirety but, there are numerous instances in the act where adoption has
been referred to.

One of the main points of the act is that it talks about the inter country adoption, adoption
irrespective of the religion and also calls for the setting up of an authority to make up
regulations regarding the adoption which governs the up to a great extent. It also lays
down the procedure through which the adoption is to be done with the proviso that, it
must be done according to the regulation framed by the by the authority which currently
is the Central Adoptions Resource Authority (CARA).

Procedure for Adoption.

To adopt, the parents who are wishing to adopt shall be physically fit, financially sound,
mentally alert and highly motivated to adopt a child 8also, the consent of both the spouses
for the adoption is required for adopting a child. A single or a divorced person is also
allowed to adopt according to the act given that, he must fulfil all the conditions of
regular of adoption as we down by the authority however, and a single male is not
eligible to adopt a girl child.

Adoption in India; Coming down the procedure to be followed for adopting a child
relating to those individuals living in India irrespective of their religion, the same is to be

8The Juvenile Justice Act, 2015 s.58

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done in a manner that is provided again by the authority i.e. CARA. But the act does lay
down that the adoptive parents need to apply for adoption to a specialised adoption
agency for adopting a child and only after the application is received and all the
regulations framed by the authorities are acted upon, the specialised adoption agency
prepares a home study report of the parents. After the satisfaction of this report, they will
refer a child for adoption to them along with the general report and the medical report of
a child in a manner provided by the adoption regulations agency. Adoptions agencies are
not allowed to force the choice of a adopting a child on the parents as they are allowed to
adopt any child they want to. After the acceptance of the child is done , the special
adoption agency is give the child in Foster care to the individuals and file an application
in a competent court for adopting the child according to the guidelines provided by the
adoption agency. After having done the same and receiving a certified copy of the court
order, the specialised adoption agency will send the same to the prospective parents. The
court is allowed to pass the order only after evaluating of the functioning structures of
adoption, the eligibility of the prospective parents and seeing to the fact that the
procedure for adoption by the Indian perspective has been followed with.

It is also stated that the progress and also the wellbeing of the child in the family where
he is adopted is to be followed up by any authority according to the regulations framed by
the authorities that is CARA, I shall have to discuss the regulation of the same because
they are of great importance to The Juvenile justice Act.

Inter-country Adoption; as I had mentioned earlier, the act also talks about the inter-
country adoption but the same is such that a child is only allowed for inter country
adoption if he after the joint efforts of the of the adoption agency and the state agency
could not be placed with adoptive parents within sixty days from the date he was free for
legal adoption. But there is also a proviso that children those who have the physical or
mental disability is to be preferred over other children or any other regulations which are
framed by the appropriate authority it is also state that an OCI or non-resident will be
given priority over non-citizens.

Further, an eligible person can apply for the adoption of a child to the authorised foreign
agency or the central authority or a concerned department if there is any. After such

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application the appropriate authority is required to make a home study report and if the
eligibility is proved, the agency itself is to sponsor the application of the person(s) to the
authorities in India as per the conditions of the appropriate authority in India. On the
receiving of such applications, the authority if only it finds the candidates eligible will
further the application to the specialised adoption agency thereon after the similar process
that is followed in domestic adoption goes on. But the difference is reached when the
parents are to apply for the passport and visa of the child an d as soon a s the same is
received, the parents must take custody of the child from the appropriate authority be it
adoption the state body etcetera and further on, like the domestic adoptions thee courts
may seek the progress and well-being reports. If a person is to go for adoption from
relatives not minding the religion he only needs to obtain NOC from the parents and the
authority before going through the same adoption process.

Effects of Adoption
I have discussed that, a court order is required for an adoption to be legal in nature during
the same instance, all the proceedings are to be camera proceedings and the court is
required to dispose of the same within 2 months. But the court also has certain
responsibilities regarding the same. The section 61 of the needs the court to satisfy itself
on the pretexts that the adoption benefits the child, the child’s wishes regarding the
adoption are given full consideration as per his age and understanding. The last and
important thing that the court is to inquire into the fact that the prospective adoptive
parents have not agreed to give any consideration to the adoption agency, to the parent or
the guardian of the child or in valid cases to the relative of the child in favour of adoption
except as permitted under the adoption regulations framed by the Authority towards the
adoption fees or service charge or child care corpus.9

The court according to its duties under the act makes an adoption order but what are the
implications of the same? i.e. what are the effects of adoption? According to Section 63
the effect of adoption would be that the adopted child and the parents would share a bond
as if the child was biological and legitimate in nature from the date on which we adoption
order take place and after the receiving of the order, all the ties of the child in the family

9The Juvenile Justice Act, 2015, s.61(1)(c)

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of his or her birth shall stand severed and replaced by those created by the adoption
order in the adoptive family: Provided that any property which has vested in the adopted
child immediately before the date on which the adoption order takes effect shall continue
to vest in the adopted child subject to the obligations, if any, attached to the ownership of
such property including the obligations, if any, to maintain the relatives in the biological
family.10

The act also requires that the information regarding all adoption orders which are issued
by the competent courts have to be forwarded to the authority created under the act on a
monthly basis so that the record of adoptions may be maintained.

The Authorities under the Act

I have discussed the provisions regarding the adoption in The Juvenile Justice Act but, as
during the explanation of the same I have mentioned an authority under the act numerous
positions, I would like to discuss the same in detail. A basic understanding is that it is
divided into two parts, the centre and the state authorities. The Central authority is the
Central Adoptions Resource Authority i.e. CARA and the state authorities which are
appointed by the respective states. The CARA being more important I shall discuss the
body and its constitution in detail.

The CARA; Before the commencement of the act, there existed an agency called the
Central Adoption Resource Agency the act constituted the same as a Central Adoption
Resource Authority to perform the following functions-

 to promote in-country adoptions and to facilitate inter-State adoptions in

 co-ordination with State Agency;
 to regulate inter-country adoptions;
 to frame regulations on adoption and related matters from time to time as
 may be necessary;
 to carry out the functions of the Central Authority under the Hague
 Convention on Protection of Children and Cooperation in respect of Inter-country
 Adoption;
 Any other function as may be prescribed.11

10The Juvenile Justice Act, 2015, s.63

11Ibid, s.68

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The section 69 of the act states that there must be a steering committee in the CARA
consisting of many members. The main of which shall be The Secretary, Ministry of
Women and Child Development, Government of India, who shall be the Chairperson of
the committee. Joint Secretary, Ministry of Women and Child Development, Government
of India, who would be dealing with Authority and Finance. There are other parts of this
committee which are also to be there such as one adoption resource agency, adoptive
parent’s one adoptee, an advocate, a member secretary who shall be the CEO of the
organisation. The steering committee is required to meet once a month and is to function
through its headquarters and regional offices. Currently, the headquarters of the CARA
are in New Delhi.

You cannot call an organisation authority until it has certain powers vested in itself so, the
CARA has certain powers too. Firstly, it issues instructions to the adoption agency or any
other such agencies which have to be complied with. Secondly, it has the power in
forwarding any case of persistent non-compliance of its instructions by any official or
functionary or institution to a Magistrate having jurisdiction to try the same and the
Magistrate to whom any such case is forwarded shall proceed to hear the same as if the
case has been forwarded to him under section 346 of the Code of Criminal Procedure,
1973.12 Thirdly, in case there is a problem on the eligibility of adoptive parents the CARA
is the last athourity.

Punishment For Not Following The Provisons Of The Act

If any person or organisation offers or gives or receives, any orphan, abandoned or
surrendered child, for the purpose of adoption without following the provisions or
procedures as provided in this Act, such person or organisation shall be punishable with
imprisonment of either description for a term which may extend up to three years, or with
fine of one lakh rupees, or with both: Provided in case where the offence is committed by
a recognised adoption agency, in addition to the above punishment awarded to the
persons in-charge of, and responsible for the conduct of the day-to-day affairs of the

12The Juvenile Justice Act, 2015, s.70

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adoption agency, the registration of such agency under section 41 and its recognition
under section 65 shall also be withdrawn for a minimum period of one year.13

According to me there is no other way to state the punishments of the act other than to
enumerate the as is provisions. They are very simple and straight forward in nature and
not need to be explained.

13 The Juvenile Justice Act, 2015, s.80

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Conclusion: A Comparison between the Acts
I think the best way to conclude is with the stating the criticism of both the acts.

Criticism of the HAMA, 1956.

 HAMA is not child oriented but parent oriented It is a religion specific Act.
 It does not allow adoption of two children of the same sex by one adoptive couple.
 It does not allow for adoption of a child of the same sex as the biological child.
 The adoptive mother is only a consenting party and not a joint petitioner.14

Criticism of the Juvenile Justice Act, 2015

The act although is very exhaustive, it focuses too much on the authority that is the
CARA which causes according to me a lot of confusion of regulations which are to
govern adoption. Not only the procedure in the JJ Act is to be followed, the procedure or
the rules laid down by the agency or the authority are to be followed thoroughly which
creates a lot of confusion as it is between the provisions of the act and the guidelines and
rules laid down by the CARA.

As far as the comparison between both the acts is concerned, one can confidently say that
the JJ Act is a more exhaustive. Firstly because it lays down the provisions regarding
adoption in in a very detailed sense in spite of causing little confusion. Secondly, the
HAMA only concerns adoption in the Hindu religion the JJ Act on the other hand permits
the inter religion adoption and also the inter country adoption as a concept is dealt with in
great detail in the JJ Act unlike the HAMA where there is no concept of inter country
adoption. There is one ground on which HAMA edges over the JJ Act is that the
provisions laid down in the same very easy to understand even for a layman.

Another thing that is greatly differentiated is that the JJ Act calls for same cost for
adoption regulating authorities both in the state and central sphere. These agencies have
been given certain powers and they also have to perform certain functions which further
help in the enhancing of provisions of the adoption and keeping a check on the defaulters
who do not follow provisions, under the HAMA, there are no such authorities which are
dealt in the same great detail as the steering committee of the CARA.

14 At, http://www.nja.nic.in/HinduAdoptionLawandJudicialinterpretation (last accessed on 12 August,

2018)

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In conclusion one can easily say that the JJ Act is a better Act because of the fact that it
introduces the procedure and requisites for inter-religion, inter country adoption and it
has a lot of agencies which act as a system of checks and balances on the adoption
Agencies or others things which govern the adoption process in India. Even the courts
stress on the same because as far as the applicability of the act is concerned, this is on the
well settled principle that when there are two special Acts dealing with the same subject
matter, the legislation which has been enacted subsequently should prevail. The Supreme
Court applied this principle in the context of a conflict between the Companies Act 1956
and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. 15 Hence,
alternatively, even if there were to be a conflict between the provisions of the Hindu
Adoptions and Maintenance Act, 1956 and the Juvenile Justice Act of 2000, it is the latter
Act which would prevail.16

Bibliography
 http://www.nja.nic.in

15 Allahabad Bank v Canara Bank and Anothers, AIR SC 1535

16 At, http://www.nja.nic.in/HinduAdoptionLawandJudicialinterpretation (last accessed on 12 August,
2018)

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 https://mphc.gov.in
 http://www.legalserviceindia.com/article/l327-Adoption-under-Juvenile-Justice-
Act.html
 http://www.livelaw.in/maintenance-tribunal-empowered-order-eviction-legal-heir-
parents-ill-treated-delhi-hc-read-judgment/
 https://www.merriam-webster.com
 Dr. Kusum, Family law lectures- family law 1, Lexis Nexis, Gurgaon, 2015.

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