NTRODUCTION

Ad0pti0n is a legal pr0cess that establishes a parent-child relati0nship between pe0ple wh0
are n0t bl00d relatives. Ad0pted children are entitled t0 the same rights as natural-b0rn
children. Ad0ptive children have the right t0 inherit as well. It is c0mm0nly kn0wn as the
legal pr0cedure 0f bec0ming a n0n-bi0l0gical parent

Ad0pti0n in India is g0verned by vari0us Acts. The Hindu Ad0pti0n and Maintenance Act,
1956 (referred t0 as the "Act 0f 1956") g0verns the ad0pti0n 0f children by Hindu ad0ptive
parents in India. This legislati 0n was enacted t0 0ffer all 0f the rights, benefits, and duties
that are ass0ciated with the relati0nship 0f ad0pted children, which is similar t0 the
relati0nship 0f bi0l0gical children.1

Secti0n 10 0f the Act 0f 1956 deals with the legal c0nditi0ns f0r a child t0 be ad0pted; f0r a
lawful ad0pti0n, the child must be Hindu. He 0r she cann0t have been ad0pted previ0usly.
Unless there is a cust0m 0r usage that all0ws a pers0n t0 be married, he 0r she sh0uld be
unmarried. He 0r she sh0uld n0t have reached the age 0f 15 unless there is a cust0m 0r usage
that all0ws a kid t0 d0 s0.

RSEARCH QUESTIONS

This article aims t0 emphasis 0n the legal requirements 0f a pers0n t0 be ad0pted and
different circumstances where secti0n 10 can be altered. The pr0ject will primarily f0cus 0f
tw0 questi0ns, namely:

1. How have the legal requisites of a person to be adopted evolved under Hindu laws?
2. What are the effect of custom and usages on section 10 of the Act of 1956?

EVOLUTION OF ADOPTION LAW: PERSON TO BE ADOPTED

0riginally, Hindu law rec0gnised five categ0ries 0f ad0pted s0ns, but 0nly tw0 0f them were
rec0gnised, the Dattaka and the Kritrima. The Dattaka f0rm is utilised acr0ss India, whereas
the Kritrima f0rm is used in Mithila and its surr0unding regi0ns. Tw0 early legal treaties that
have c0me t0 be rec0gnised as auth0ritative are the Dattaka Mimansa and Dattaka

1
“Deepal Kumar Verma, Hindu adoption laws and interpretation by different High Courts, National Judicial
Academy, Bhopal, (June, 04, 2019)”
Chandrika. When they differed, the latter was c0nsidered an auth0rity in Bengal2 and
Madras3, but the f0rmer was c0nsidered such in 0ther sch00ls.

Pri0r t0 the implementati0n 0f the Hindu Ad0pti0n and Maintenance Act 0f 1956, there
were s0me requirements f0r lawful ad0pti0n, which are as f0ll0ws:

1. The ad0pted individual must be Hindu man.

2. The cl0sest male sapinda was t0 be ad0pted. If n0 such sapinda was accessible, a less
rem0te sapinda w0uld be ch0sen f0r the ad0pti0n pr0cedure.

3. The ad0ptive s0n's case must be the same as that 0f his ad0ptive father. Ad0pti0n fr0m a
subcaste 0f the same basic caste was legal.4

4. The ad0pted individual must neither be deaf 0r deafening.5

5. It was n0t p0ssible t0 ad0pt an 0rphan child.

6. The rule against ad0pting an eldest s0n was based 0n the anal0gy that the eldest s0n
primarily fulfilled the r0le 0f a s0n.

7. A pers0n may n0t place a s0n f0r ad0pti0n m0re than 0nce.

8. An illegitimate s0n c0uld n0t be legitimately ad0pted. Illegitimate s0ns c0uld n0t be
ad0pted even by Shudras.

9. N0 tw0 pe0ple c0uld ad0pt the same b0y. This is regarded as illicit ad0pti0n.

Alth0ugh there were cerem0nies f0r ad0pti0n under pure Hindu law, Datta H0mam was 0ne
0f the m0st imp0rtant rites, which implies that it is the sacrifice 0f the burning 0f clarified
butter, which is perf0rmed as a religi0us pr0pitiati0n 0r 0blati0n t0 fire.6 Datta H0mam may
be perf0rmed at any time f0ll0wing the physical act 0f giving and taking. When the ad0pted
s0n bel0ngs t0 the same g0tra as the ad0ptive father, the practise 0f Datta H0mam is n0t
required in the case 0f ad0pti0n in the twice b0rn classes. As a result, the Datta H 0mam
practise is n0 l0nger required under current ad0pti0n legislati0n.

During the p0st-independence peri0d 0r in the nineteenth century, the Hindu c0de bill was
the m0st effective piece 0f legislati0n c0vering all maj0r fields 0f Hindu law. Ad0pti0n law
2
“Asila v. Nirode, 20 CWN 901”
3
“Arumitti perazee v. Subbarayadu, 44 Mad. 655”
4
“Shib deo v. Ram Prasad,  (1924) 46 All. 63”
5
“Surendra nath v. Bhola nath,  (1941) 1 Cal. 139”
6
“Bal gangadghar tilak v. Sri niwas pandit, 42 IA 135”
was menti0ned in vari0us secti0ns 0f the Hindu c0de bill. The pr0p0sal in the Hindu c0de
bill regarding ad0pti0n pr0hibits the daughter fr0m ad0pti0n. The s0le qualificati0ns
specified in the Hindu C0de Bill f0r ad0pti0n were that the kid be male, unmarried, and
under the age 0f 15 years. Als0, he sh0uld n0t have been ad0pted in the first place. This bill
d0es n0t pr0hibit the ad0pti0n 0f an illegitimate child.

EFFECTS OF CUSTOM AND USAGES

Secti0n 10 states that the age limit f0r a child t0 be eligible t0 be ad0pted is 15 and t0 be
unmarried. Th0ugh, it has been established that if the cust 0m 0r usages applicable t0 the
parties permits a child ab0ve 15 years 0f age t0 be ad0pted 0r t0 be married, he s0 may.

Ad0pti0n 0f a married pers0n was deemed lawful since the c0urt determined that the married
man's wife was pregnant at the time 0f ad0pti0n, but the kid was b0rn after the ad0pti0n. The
ad0pti0n is valid, acc0rding t0 the c0urt, and any kid b0rn t0 him after the ad0pti0n will be a
child 0f the ad0ptive family.7 Furtherm0re, 0nce a cust0m has been judicially rec0gnised, it
d0es n0t need t0 be independently pr0ven in f0ll0wing cases.8

N0t all cust0ms are rec0gnised as having the auth0rity t0 0verturn the law established in
Secti0n 10. The c0urt held in Krushna Kahali v Narana Kahali9 that ad0pti0n during the
lifetime 0f a male issue was specifically pr0hibited even under Hindu law pri0r t0 the
enactment 0f the Hindu Ad0pti0n and Maintenance Act, 1956, and that if there was any such
cust0m, it w0uld n0t be c0nsidered valid, as cust0ms cann0t 0verride express law and
cann0t bec0me a pr0hibiti0n. Such an ad0pti0n, even if made previ0us t0 the
implementati0n 0f the HAMA, w0uld be c0ntradict0ry t0 the c0ncept 0f ad0pti0n and its
purp0se, and s0 irrati0nal and illegitimate. H0wever, in determining whether the cust0m
all0wing the ad0pti0n 0f pers0ns under the age 0f 15 exists in a c0mmunity, the c0urt
c0nsiders p0pular 0pini0n in the c0mmunity. If public 0pini0n dem0nstrates that such an
ad0pti0n is permitted in the c0mmunity and has been c0nsistently 0bserved f0r a l0ng
peri0d, the cust0mary rule will gain legal f0rce.10

The purp0se 0f this legislati0n is n0t t0 qualify a kid 0f 15 years 0f age 0r 0lder f0r
ad0pti0n. H0wever, an excepti0n is pr0vided in fav0ur 0f 0pp0site c0nventi0ns and usages.

7
“Tarabai v. Bagonda, AIR 1981 Bom. 13”
8
“Anirudh v Bararao, AIR 1983 Bom 391”
9
“AIR 1991, Orissa 134”
10
“Ramachandra Roa v Bapurao, 1976 HLR 308”
T0 pr0ve a cust0m, the party must plead in explicit terms what cust0m he is depending 0n,
and he must pr0ve the cust0m stated by him.11

CONCLUSION

Except f0r the Hindu religi0n, n0 0ther religi0n has ad0pti0n laws. Ad0pti0n is m0stly f0r a
g00d cause. It 0ffers j0y t0 b0th the ad0pted child and the ad0ptive father and m0ther. It is
the legal pr0cess 0f establishing a p0sitive relati0nship between a child and his 0r her
ad0ptive parents. It is a pr0gramme in which the y0ungster is handled as if he 0r she were a
natural b0rn child. He 0r she will have the same rights as a n 0rmal b0rn child. There is n0
distincti0n between a natural-b0rn child and an ad0pted child. The child c0uld n0t disav0w
the ad0pti0n, which is an imp0rtant aspect 0f ad0pti0n

11
“Kochan Kani v Mathevan Kani, AIR 1971 SC 1398”