The essentials of Hindu Adoption Act with case studies

Submitted by:

Aayushi Kulshrestha

Division A Roll No. 18010224002

Class of 2018 – 2023

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), PUNE

In

January, 2020

Under the guidance of

Ms Deepali Rani Sahoo and Dr. Furqan Ahmad

(Assistant Professors)

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 CERTIFICATE

The project entitled “The essentials of Hindu Adoption Act with case studies.”
submitted to Symbiosis Law School, NOIDA for Family Law II as part of Internal
assessment is based on my original work carried out under the guidance of Ms
Deepali Sahoo and Dr. Furqan Ahmad. The research work has not been submitted
elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the project has
been duly acknowledged.

I understand that I myself could be held responsible and accountable for

plagiarism, if any, detected later on.

Signature of student

Date:

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 INDEX

Serial Heading Page No.

No.

1. Introduction 5

2. Explanation 7

3. Research Question 12

4. Literature Review 13

5. Conclusion 14

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List of Cases:

1. Inder Singh v. Kartar Singh AIR 1966 Punj. 258.

2. Ramasubbayya v. Chanchu Ramayya AIR 1947 P.C. 124 at P.127
3. Madhusudhan Das v. Narayanibai AIR 1983 SC 114
4. Bholooram & Ors. v. Ramlal & Ors 1989 JLJ 387
5. Babubarelal v. Gulzari Devi 1979 All LJ 1333
6. Ambrish Kumar v. Hatu Prasad (1981) HLR 781
7. Badrilal v. Bheru 1986 (1) HLR 81
8. Bhooloo Ram v. Ram Lal 1989 (2) HLR 162
9. Dashrath v. Pandu (1977) Mah LJ 358
10. Ashoka Naidu v. Raymond AIR 1976 Cal. 272
11. Hanmant Laxman Salunke v. Shrirang Narayan Kanse AIR 2006 Bom 123
12. Lakshmi Kant Pandey v. Union of India, AIR 1986 SC 272

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INTRODUCTION:
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The act of legally taking a child to be taken care of as your own is known as Adoption. A legal
process that allows someone to become the parent of a child, even though the parent and child
are not related by blood. But in every other way, adoptive parents are the child's parents. 1 In
India, adoption has been practiced for thousands of years. Hinduism being the major religion
practiced in India, epics and history has records of saints and royals who were adopted and who
did adopt.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Punjab and Haryana High Court in Inder Singh v. Kartar Singh2 has expressed the meaning and
purposes of adoption in the following words. “Broadly put, adoption under Hindu law is the
admission of the stranger by birth to the privileges of a child by a legally recognized form of
affiliation and contemplation of Hindu law and adopted child is deemed to be begotten by the
father who adopts him or for and on behalf of whom he is adopted. Thus, “Taking of a son” is a
substitute for the failure of male issue and its object is two folds:

(i) To secure the performance of funeral rites of the person to whom the adoption is made;
and (ii)
(ii) To preserve the continuance of his lineage.

The Privy Council in Ramasubbayya v. Chanchu Ramayya,3 wherein sir Madhavan Nair,
delivering this judgment of behalf of the board observed: “The object of adoption is two fold:

(i) to secure the performance of funeral rites of the person to whom the adoption is made;
and
(ii) (ii) to preserve the continuance of his linage”.

In India, there are various laws and agencies that govern and regulate Adoption practices. The
basic objective of almost all of them is to provide a safe and caring home to the child who is
being adopted. These acts and agencies are as follows:

1
http://cara.nic.in/
2
AIR 1966 Punj. 258.
3
AIR 1947 P.C. 124 at P.127.

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  The Hindu Adoption and Maintenance Act, 1956 deals with topics such as capacity to
adopt, capacity to give in adoption, effect of adoption, gender bias and such others.
 The Guardians and Wards Act, 1890 was a law to supersede all other laws regarding
the same. It became the only non-religious universal law regarding the guardianship of a
child, applicable to all of India except the state of Jammu and Kashmir. This law is
particularly outlined for Muslims, Christians, Parsis and Jews as their personal laws
don’t allow for full adoption, but only guardianship. It applies to all children regardless
of race or creed.
 Central Adoption Resource Authority (CARA) is a statutory body of Ministry of
Women & Child Development, Government of India. It functions as the nodal body for
adoption of Indian children and is mandated to monitor and regulate in-country and
inter-country adoptions.
 The Juvenile Justice (Care and Protection of Children) Act, 2015 addresses children
in conflict with law and children in need of care and protection. It replaced the Juvenile
Justice (Care and Protection of Children) Act, 2000. In particular, it provides a
comprehensive process for domestic and inter-country adoption of orphan, abandoned
and surrendered children.

EXPLANATION

I Hindu Adoption and Maintenance Act, 1956 : It is the only statute in force governing
adoption of children in India. Unfortunately, its ambit is confined to Hindus. 4 In Madhusudhan
Das v. Narayanibai,5 it was held that the ceremony of giving and taking is an essential requisite
on all adoptions. The capacity of married man, widow, widower, single or divorced or deserted
women to adopt is also recognized by the Act. 6 The Basic Requirements of a valid Adoption are
discussed below :

1. Capacity to Adopt:

As per section 7 HAMA, 1956 any adult male Hindu of sound mind adopt a child if he fulfills
the following conditions:
4
Section 2, The HAM Act, 1956
5
AIR 1983 SC 114
6
Section 8, The HAM Act, 1956

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1. He is a major.
2. He is of sound mind.
• The person taking in adoption must not suffer from idiocy or insanity
• He must have the basic capacity to understand the provision of the Act (i.e. HAMA).
• There is a very strong presumption favoring soundness of mind.7
• Deaf and dumb but possessed with the capacity to express through signs and gestures, though
not clearly, is to be taken as a person of sound mind.8
3. He shall not adopt any child if he has a wife living at that time, except with her consent unless
and until the wife has renounced the world or her Hindu religion or has become of unsound
mind, as per the declaration of a competent Court.
• In the case of divorce the consent is not necessary but in the case of judicial separation, consent
would be necessary.
• The consent must be obtained prior to the civil adoption takes place and not later on where the
proviso is disregarded adoption is not valid.9
4. 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 any one of them is unnecessary for any of the reasons specified
in the preceding provision.
• In case of two wives, consent must be of both the wives despite the fact that one of them was
not living under the same roof for a big job of twenty or thirty years.10
In case of Bholooram & Ors. v. Ramlal & Ors.11 the question raised was whether consent of all
the wives is necessary, if a person has more than one wife living at the time of adoption?
Held: if a wife has absconded to a unknown place, it cannot be construed as her death in eyes of
law unless requirements of Section 107 of Evidence Act are fulfilled. So long as, woman
continues to be a wife in eyes of law, her consent is necessary for validity of an adoption under
Section 7 of Act.

HINDU FEMALE:

7
Babubarelal v. Gulzari Devi 1979 All LJ 1333
8
Ambrish Kumar v. Hatu Prasad (1981) HLR 781
9
Badrilal v. Bheru 1986 (1) HLR 81
10
Bhooloo Ram v. Ram Lal 1989 (2) HLR 162
11
1989 JLJ 387 (Madhya Pradesh High Court)

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 Section 811 of the HAMA, 1956, enumerates that any female, who is a Hindu, can adopt a child
if she complies with the following:

1. She is a major;

• After the completion of the age of eighteen, a woman gets the capacity to adopt even though
she herself is unmarried.

• Where after the adoption, she gets married, her husband would bestepfather and she herself
would remain adoptive mother as earlier.

2. She is of sound mind

3. She is unmarried or in case married, her marriage has been dissolved or her husband is no
more or has completely renounced the world as well as his Hindu religion or has been so
declared by a Court of competent authority to be of an unsound mind.12

• Adoption by an unmarried can also take place despite the fact that she is having an illegitimate
child.13

2. Capacity to give in Adoption:

“As regards the capacity of persons who could give in adoption, the Act prior to 2010 provided
that if the father was alive, then he alone could give in adoption, though the mother’s consent
was required. Such consent was not required if the mother of unsound mind, or had renounced
the world, or had ceased to be a Hindu. However, if the father was not alive or suffered from any
of these legal disabilities, then the mother had a right to give the child adoption. Where both the
parents are dead , or are legally incompetent to give in adoption, then in that case, the guardian 14
of the child may give the child in adoption with the previous permission of the court, to any
person, including the guardian himself. Before granting such permission to a guardian, the court
has to satisfy itself that :

i. The adoption is for the welfare of the child;

12
Dashrath v. Pandu (1977) Mah LJ 358
13
Ashoka Naidu v. Raymond AIR 1976 Cal. 272
14
According to Hindu Adoption and Maintenance Act,1956 section 9(i-a): ‘A ‘guardian’ means a person having the
care of person and/or property of the child and includes a person so appointed by the will of the child’s mother or
father, or by the court.’

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 ii. The child’s wishes have been ascertained;
iii. There is no financial consideration in the transaction.

3. Who can be adopted:

The Act also provides that a person who is to be adopted should be a Hindu and normally below
the age of 15 and unmarried, unless there is a custom or usage applicable to the parties which
permits adoption of those who have completed the age of 15 or those who are married 15 also, the
child to be adopted should not have been already adopted.

A person, who has a Hindu son, son’s son, or son’s son’s son, either by blood or by adoption,
cannot adopt a son. Likewise, a person who has a Hindu daughter or son’s daughter cannot adopt
a daughter. In case the adopter and the adoptee belong to opposite gender, the Act requires an
age difference of 21 years. Thus, if a male wants to adopt a female, he must be at least 21 years
older than the child to be adopted. In Hanmant Laxman Salunke v. Shrirang Narayan Kanse,16
while a custom permitting adoption of a child over 15 years was established but the age
difference between the adoptive mother and the adopted son was less than 21 years. This
condition being mandatory its breach was held to be fatal to the adoption.

II. CAPACITY UNDER JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2015:

A couple or a single parent can adopt an orphan, abandoned and surrendered (OAS) child 17
however, nothing in this Act shall apply to adoptions made under HAMA. 18 By virtue of Section
38 of JJ Act, 2015 and Regulation 6 and 7 of AR, 2017 Child Welfare Committee (CWC) can
legally declare an OAS child free for adoption and this Act also allows Children up to the age of
18 to be adopted19

15
Ibid,s.10.
16
AIR 2006 Bom 123
17
As per Section 56(1) and 58(1) of JJ Act and Regulation 4(a) of AR, 2017.
18
Section 56(3) of JJ Act, 2015
19
Section 2(12) of JJ Act, 2015

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Capacity of male/female under JJ Act, 2015 can be commonly grouped under the umbrella term
Prospective Adoptive Parent(s) (hereinafter PAP) and is illustrated under Section 57 of JJ Act,
2015 and Regulation 5 of AR, 2017 as:

1. The prospective adoptive parents shall be physically fit, financially sound, mentally alert and
highly motivated to adopt a child for providing a good upbringing to him.

2. In case of a couple, the consent of both the spouses for the adoption shall be required.

3. A single or divorced person can also adopt, subject to fulfillment of the criteria and in
accordance with the provisions of adoption regulations framed by the Authority.

4. A single male is not eligible to adopt a girl child.

5. No child shall be given in adoption to a couple unless they have at least two years of stable
marital relationship.

6. The age of prospective adoptive parents, as on the date of registration, shall be counted for
deciding the eligibility and the eligibility of prospective adoptive parents to apply for children of
different age groups shall be as under:-

(g) The minimum age difference between the child and either of the prospective adoptive
parents shall not be less than twenty-five years.

(h) The age criteria for prospective adoptive parents shall not be applicable in case of relative
adoptions and adoption by stepparent.

(i) Couples with three or more children shall not be considered for adoption except in case of
special need children as defined in Regulation 2(12) of AR, 2017, hard to place children as
mentioned in Regulation 50 of AR, 2017 and in case of relative adoption and adoption by step-
parent.

(j) The eligibility and suitability of the PAPs is ascertained through a Home Study done by the
Specialized Adoption Agency (SAA)20

20
Section 58(2) of the JJ Act and Regulation 9(13) of AR, 2017.

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 After fulfilling all the requirements as mentioned above, documents are submitted and all
adoptions under JJ Act, 2015 get completed on obtaining the Adoption Order from the Court
concerned in consonance with procedures described under Section 61 of the JJ Act, 2015, Rules
45 & 46 of the JJ Model Rules, 2016 and Regulation 12, 17 & 55 of AR, 2017.

III. CARA guidelines based on Lakshmi Kant Pandey21:

The realization of the unscrupulous practices in adoptions (intra-and intercountry) especially after the
judicial verdict in Lakshmi Kant Pandey prompted the CARA to set up the following guidelines :

 A married couple, a single male/female (unmarried, widowed or legally divorced) can adopt a child
up to 18 years of age .

 A single male can only adopt a male child. A single female can adopt a child of any gender.

 Parents with maximum composite age of 90 yrs (single parent’s age of 45 yrs) can adopt a child up to
4 yrs of age

 Parents with maximum composite age of 100 yrs (single parent’s age of 50 yrs) can adopt a child
between 4-8 yrs of age

 Parents with maximum composite age of 110 yrs (single parent’s age of 55 yrs) can adopt a child
between 8-18 yrs of age

 Minimum age difference between the child and the parent should be 25 years.

 The parent need to register online with CARA Adoption System – CARINGS and upload required
documents as per their status.

Research Question: Is there a secular adoption law in India? If no, then how
do the people of religions other than Hinduism adopt?

Personal law of Muslims, Christians, Parsis and Jews does not recognise complete adoption. As
non-Hindus do not have an enabling law to adopt a child legally, those desirous of adopting a

21
Lakshmi Kant Pandey v. Union of India, AIR 1986 SC 272

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 child can only take the child in 'guardianship' under the provisions of The Guardian and Wards
Act, 1890.

This however does not provide to the child the same status as a child born biologically to the
family. Unlike a child adopted under the Hindu Adoption and Maintenance Act, 1956 the child
cannot become their own, take their name or inherit their properly by right. This Act confers
only a guardian-ward relationship. This legal guardian-ward relationship exists until the child
completes 21 years of age. The Juvenile Justice(Care and Protection ) Act 2000 allowed
secular adoption whereby without any reference to the community or religious persuasions of
the parents or the child concerned, a right appears to have been granted to all citizens to adopt
and all children to be adopted. As per Supreme Court’s directions, specific guidelines have been
laid down by Central Adoption Resource Authority (hereinafter CARA), which is now the apex
controlling body in matter relating to adoption in India under the Ministry of Women and Child
Development (MWCD) for legal adoption. Based on judgment in Lakshmi Kant Pandey v
Union of India22 and Section 41(3) of the JJ Act, CARA has framed a set of guidelines.

Literature Review:

This article deals with the various Adoption laws prevalent in India and also talks about the
Rights and Duties of the adoptive parents. Adoption as a concept has different dimensions in
various legal systems and it is serving a very important social purpose in the society. Today,
Institution of adoption is prevalent in one form of the other in almost all the legal systems of the
world barring a few countries. But there are national variations in adoption laws and procedure.
In India, there is no general law of adoption. In India, Adoption has been recognized for
centuries, but being a part of personal Laws, there is no uniformity among the different
communities. The reasons for adoption may vary from one person to another person. Adopted
son is like a natural born son in new family .He acquires all the rights and status in this new
family and his ties with the old family come to an end (Kakkar, 2019).

CONCLUSION

Adoption is a noble cause, which brings happiness to kids, who were abandoned, or orphaned.
This gives a chance for the humane side of civilization to shine through. It’s a beneficial
22
Ibid.22

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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. Although a few changes could be made to make
all the laws regarding adoption a little, uniform.”

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