Effects of Adoption According To Hindu Adoption Act

SUBMITTED BY:
Name- Danish Pawar
Division- ‘C’, PRN- 18010224129, Course- BBA. LLB. Class
of 2018-2023

SYMBIOSIS LAW SCHOOL, NOIDA

Symbiosis International (Deemed University)

In
January, 2020

Under the guidance of

Mrs. Deepali Rani Sahoo
(Assistant Professor, Family Law-II)
 CERTIFICATE
The project entitled “Effects of adoption according to hindu adoption
act”submitted to the Symbiosis Law School, NOIDA for Family Law II paper, as
part of internal assessment is based on my original work carried out under the
guidance of Mrs. Deepali Rani Sahoo from December 2019 to January 2020. The
research work has not been submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the thesis has been
duly acknowledged.
I understand that I myself could be held responsible and accountable for
plagiarism, if any, detected later on.

Signature

Date:
 ACKNOWLEDGEMENTS

This project consumed huge amount of work, research and dedication such that its
implementation would not have been possible without the support of my institution
and some individuals. Thus I would like to extend my sincere gratitude to all of
them. First of all, I am thankful to Symbiosis Law School, Noida for providing me
with all the resources that I could find in the library and the online database. I am
also thankful to my course in charge – Ms. Deepali Rani Sahoo, for providing me
all the superior knowledge and expertise which were important in the carving of
this project.
Further, I express my gratitude to my colleagues for their kind co-operation and
encouragement which directly and indirectly helped me with the project.
TABLE OF CONTENTS
A. Introduction
B. Historical Background
C. Comparative analysis of the requirements of valid adoption under Hindu
Adoption and Maintenance Act and Central Adoption Resource Authority
(CARA)
• Capacity of the person adopting •Capacity of the
person to be adopted
• Can a married person be adopted?
D. Conclusion
E. Bibliography
Introduction
Adoption is a way of conferring "The privileges of parents upon the childless and the advantages
of having parents upon the parentless."1 The act of adoption confers parentage on a person who
is not in fact having child. In the basic sense, the concept of adoption means the admission of an
individual usually a child into a family which is not his or her own natural family. It is one of
those fictions of law which have been marshalled for furtherance of individual interest. 2 It is
based on the basic notion of transfer of domain over the child by the natural parents to the
adoptive parents and the child is transplanted into the adoptive family. It thus legally establishes
a parent-child relationship which faithfully reproduce legitimate affiliation and that affiliation
need not necessarily involve blood ties, but can also be the result of a legal process which give
approval to a special social relationship. Hence, the adopted child severs all relationships from
the natural family and is grafted with adoptive family with separable bonds and ties which can't
be cut off by any means whatsoever. Similarly, adoption involves a wound, a separation from
original relationship of birth and subsequent bounding, assimilation and integration in a new
relationship.3 Subsequently, a permanent bond is created between the adoptive parents and the
adopted child. There is a starting and an ending in the adoption process. The start of a life long
relationship for two individuals who have chosen to be adoptive parents and a termination of
parental rights and relinquishment of responsibilities by the biological parents. 3 Under the
traditional Hindu law, adoption created a true sonship based upon a spiritual ideas,
varying form the belief that a son is necessary to save a man's soul form hell to the very
natural feeling of regards that your line should not extinct, that there should be one to
represent you in the family gathering an offer the Pindas. All the rules initiate this
principle of adoption.5

In the Hindu Adoption and Maintenance Act, 1956, it only states that an adoptive child
shall be the child of his or her adoptive father or mother for all purposes with effect from

1Encyclopedia
Britannica, Vol. III 5th edn.) p. 165
2
Ibid 3 A Project Report on National Initiative for the Child Adoption - Compilationof Resource Material
Collaborations (National Institute of social Defence and of Central Adoption Resource Agency, New Delhi,
2000)
3 Ibid 5 M. S. Pandit, Outlines of Ancient Hindu Jurisprudence (Ist edn, 1989),p.

1.
the date of his adoption and from such date all the ties of the child in the family of his or
her birth shall stand severed and replaced by those created by the adoption in the adopted
family. This clearly reflects about the relationship of the adoptive child to the adoptive
parents. The Hindu Code Bill has also attempted to give a brief definition of adoption
saying, "adoption is a formal recognition of a person as the son of another."4

Historical Background
In the Hindu tradition, there is a popular spiritual sentiment and the desire of having a
son. A person must have a son, natural born or adoptive one. There is a well founded
belief that a person without any person had no chance of future bliss after death. It is
certain that through all the centuries which have seen the spread of Brahaminical
influence and among all the classes which come under its way a peculiar religious
importance has continued to be attached to the son. The son conferred spiritual benefit by
offering pinda.5The child adoption in India is certainly not a new concept. It dates back to
our ancient mythology. In olden times female fertility was a natural process, so on failure
of natural children, it is evident that an adopted son had become important for continuance
of the line and solemnization of the necessary rites. During ancient period, adoption originated
under the religious belief according to which a male issue was essential to procure spiritual
benefits in the life hereafter. Adoption was considered as sacramental act. Spiritual ceremony
e.g. Datta Hama was considered as an essential ceremony in adoption. Continuity of male line in
the family was the main goal of these ancient adoptions. The importance of the male heir
stemmed from political, religious or economic consideration depending on the society or
nations.6

In Bal Gangadhar Tilak Vs. Shrinivas Panditi'7 the Privy Council observed that among the
Hindus the ceremony of adoption is held to be necessary not only for the continuation of the

4
H. S. Gour, The Hindu Code Bill, (5'" edn., 1978), Vol. IV, p. 763.
5
M. S. Pandit, supra note 5, p. 20
6 Supra note 1

7 (1915) 42.1.A 135, 144.

childless father, but as part of the religious means whereby a son can be provided who will make
those obligations and religious sacrifices which would permit of the soul of the deceased passing
into paradise. The Dattak Mimansa quotes a text that man should adopt a son for the

sake of the funeral cake, water and solemn rite and for the celebrity of his name. Similarly,
author of Dattak Chandrika admits that even where there is no spiritual necessity a son may even
ought to be adopted for the celebrations of name and due perpetuation of lineage. 8 In Hem
Singh Vs. HarnamSingh 9 the Supreme Court observed that under the Hindu law
adoption is primarily a religious act intended to confer spiritual benefit on the adoptee
and some of the rules have therefore, been held to be mandatory and compliance with
them is regarded as a condition of the valid adoption. In another case of V. T. S.
Chandra Shekhera Vs.Kulandaively10, the Supreme Court held that the validity of an
adoption has to be seen on a spiritual level rather than temporal consideration and that
devolution of property is only of secondary importance.
The present law i.e. the Adoption and Maintenance Act, 1956 has made sweeping
changes in the existing Hindu law while doing away with the religious motive underlying
adoption. The only requirements is that the adoption must confirm under the provisions of
the Act regarding its validity.11

Comparative analysis of the requirements of valid adoption under Hindu Adoption

and Maintenance Act and Central Adoption Resource Authority (CARA)

Before moving to the comparison, it is essential to know about CARA. Central Adoption
Resource Authority functions as the nodal body for adoption of Indian children and is mandated
to monitor and regulate in-country and inter-country adoptions. CARA is designated as the
Central Authority to deal with inter-country adoptions in accordance with the provisions of the
Hague Convention on Inter-country Adoption, 1993, ratified by Government of India in 2003.

8 As cited in Kannepalli Suryanaraana's case, (1906) 331 A 145, 154.

9
AIR 1954 SC 581
10 AIR 1964 SC 185

11Hindu Adoption and Maintenance Act, 1956, Section 6.

CARA primarily deals with adoption of orphan, abandoned and surrendered(OAS) children
through its associated /recognised adoption agencies.12
The requisites for a valid adoption require an adoption to not be unless-
1) The person adopting has the capacity and also the right to be taken into adoption.
2) The person giving in adoption has the capacity to so.
3) The person adopted is capable of being taken in adoption.
4) The adoption is made in compliance with the other conditions mentioned in the guidelines.

Capacity of the person adopting

In case of the capacity of the person adopting, in case of CARA requires,

• A child in India can be adopted by an Indian citizen, NRI or a foreign citizen. The procedure
of adoption is different for all three.
• Any person is eligible to adopt irrespective of their gender or marital status.
• In case a couple is adopting a child, they should have completed at least two years of stable
marriage and should have a joint consensus for adoption of the child.
• The age difference between the child and the adoptive parents should not be less than 25
years.

Under Hindu Adoption Act, any male Hindu, who is of sound mind and is not a minor, has the
capacity to take a son or daughter in adoption. This was held in the case of Ambrish Kumar Vs.
Hatti Prasad13 where Section 7 of HAMA was specified. Also, provided that if he has a wife living,
he shall not adopt except with the consent of his wife, unless his wife has completely and finally
renounced the world or has ceased to be a Hindu, or has been declared by a court of competent
jurisdiction to be of unsound mind. If a person has more than one wife living at the time of adoption
the consent of all the wives is necessary unless the consent of one of them is unnecessary for any of
the reasons specified in the preceding provision. In another, Smt. Gopi Vs. Madanlal14 it was held,
that it is settled law that every male Hindu of sound mind may lawfully take a son in adoption. In

12 CARA official website- cara.nic.in

13
AIR 1979 All. LJ 1333
14 AIR 1970 Raj. 190
Kashibai Vs. Parwati Bai15, the court held the adoption to be invalid of the basis that the evidence
stated that the wife did not sign the deed of adoption nor she consented to such adoption, thus, she
did not participate in an adoption proceedings.
Considering the capacity of female to take into adopton, any female,
a. who is of sound mind
b. who is not a minor, and
c. who is not married, or if married, whose marriage has been dissolved or whose husband is dead or
has completely and finally renounced the world or has ceased to be a Hindu, or has been declared
by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or
daughter in adoption.
In Lalitha Ubhyankar Vs. Union of India16, it was held that married women and women of single
status form separate classes and hence requirement of consent is not violative of Article 14 of the
Constitution of India.

Capacity of the person to be adopted

In case of considering when a child can be adopted, CARA has certain guidelines as following-

• As per the guidelines of the Central Government of India, any orphan, abandoned or
surrendered child, declared legally free for adoption by the child welfare committee is
eligible for adoption.
• A child is said to be an orphan when the child is without a legal parent or a guardian or the
parents are not capable of taking care of the child anymore.
• A child is considered abandoned on being deserted or unaccompanied by parents or a
guardian and the child welfare committee has declared the child to be abandoned.
• A surrendered child is one who has been relinquished on account of physical, social and
emotional factors which are beyond the control of parents or the guardian and is so declared
by the child welfare committee.
• In order to be adopted, a child needs to be “legally free”. On receipt of an abandoned child,
the District Child Protection Unit puts up an alert with the child’s photograph and details in
state-wide newspapers and request the local police to trace the parents. The child is

15 AIR 1995 SC 613

16
AIR 1991 Kar. 186
 considered legally free for adoption only after the police has given a report stating that the
parents of the child are non-traceable.

Under Hindu Adoption Act, 1956, no person can be adopted unless he or she is a Hindu; he or
she has not already been adopted; he or she has not been married, unless there is a custom or
usage applicable to the parties which permits persons who are married being taken in adoption;
he or she has not completed the age of fifteen years unless there is a custom or usage applicable
to the parties which permits persons who have completed the age of fifteen years being taken in
adoption. In Khazan Singh Vs. Union of India17, a case involving higher caste adoptee and a
scheduled case adoptive father, the court ruled that an adoption in a Schedule Caste was enough
to acquire benefits and the only provision to which reference was made by the counsel for the
respondent was Section 10 of the Act which provides that a person to be taken in adoption should
not normally have completed the age of 15 years. This rule was however relaxable where there is
a custom or usage applicable to the parties which permits persons who have completed the age of
15 years being taken in adoption.

Can a married person be adopted?

In case of CARA, it only primarily regulates adoption of orphan, abandoned and surrendered
(OAS) children through its associated /recognised adoption agencies. Whereas in HAMA,
1956, in the case of Nemichand Shantilal Patni Vs. Basantabai 18, it was held that inspite of
considering the essentials that the person to be adopted should not be married and must not
have completed the age of 15 years, the adoption can be permitted if there is custom or usage
applicable to the parties.

Conclusion

An adoption is a pious act so it should be performed by the people at a large scale because India
is a country where there is too much population and there is a huge number of unwanted
children. In the past few years, agencies and adoptive parents have noted a growing preference
for the girl child over boys in India’s adoption system. Adoption is one of the ways to control

17
AIR 1980 Del. 60.
18
AIR 1994 Bom. 235.
and prevent female foeticide and infanticide problem raging in India. And what could be better to
give a good and standard life to a child who really need it. In India the role of Central Adoption
Resource Authority(CARA) has been defined in the Supreme Court judgement in L. K.
Pandey's case of 1984 and the guidelines laid thereunder. Its major role is to monitor and
regulate inter-country adoptions and facilitate in-country adoptions. CARA has been ensuring
through inspection and surveillance visits/reports that all the recognized agencies/institutions
work with integrity, honesty and transparency. The emergence of adoption agencies has
considerably regulated the adoptions in a transparent and efficient manner. It’s a beneficial
program where the child is treated as the natural born child and given all the love, care and
attention. At the same time, it fills the void in the parents who yearned for kids, their laughter
and mischief echoing off the walls of a home.

BIBLIOGRAPHY

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Indian Law Institute 45, no. 3/4 (2003).
• Sivaramayya, B. "The Hindu Adoptions and Maintenance (Amendment)
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ADOPTION LAW." Journal of the Indian Law Institute 23, no. 4 (1981)
• Davis, Donald R. "Matrilineal Adoption, Inheritance Law, and Rites for the
Dead among Hindus in Medieval Kerala." In Religion and Identity in South
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Press, 2011.
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Christians, Parsis and Jews. Allahabad: Allahabad Law Agency, 2001.
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Primary Source Edition. Place of Publication Not Identified: Polity Press,
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• H. S. Gour, The Hindu Code Bill, (5'" edn., 1978), Vol. IV.
• A Project Report on National Initiative for the Child Adoption –
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