SIDDHARTH COLLEGE OF LAW

MUMBAI 400023
AY 2021-22
Assignment Topic:

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Sr No Particulars Pg No
1 Cover Page and Topic 1-2
2 Table of Contents 3
3 Introduction 4
4 Application of Hindu Adoption & Maintenance 4
Act
5 Adoption 5
6 Maintenance 10
7 Case Laws 16
8 Conclusion 17

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Introduction
Hindu Adoption and Maintenance Act deals with the legal procedure of adoption of children by
Hindu and other legal obligations that follow, including maintenance of children, wife, and in-
laws.

Applicability of Hindu Adoption and Maintenance Act

As per the act a Hindu does not merely mean a person that follows Hinduism but also includes
other sub-religions of Hinduism, such as- Buddhists, Jains, Sikhs, Virashaiva, Lingayat, or
members Arya Samaj. Followers of Brahmo and Prarthana are also included in the definition of
Hindu.

As a matter of fact, the Hindu Adoption and Maintenance Act covers everyone residing in India
who is not a Christian, Muslim, Parsi or Jew.

The Act sheds light upon:

What a valid adoption is?

Who can adopt children?

Procedure to adopt children along with other duties and obligations that occur after
adoption.

Maintenance of Wife

Maintenance of widowed daughter-in-law

Maintenance of children and aged parents

Maintenance of dependents

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ADOPTION
The Act has no description of the word per se, but it is a Hindu law derived from
uncodified Hindu laws of Dharamsastra, specifically Manusmriti.
Adoption has been described in Manusmriti as

a son.
With the change in society over time a codified and uniform legislation was required to serve
the democracy, so, no adoption can be made without the procedure mentioned in this act. If any
adoption is made neglecting this act, the adoption shall be rendered to be void.
Adoption will be valid only if it has been made in compliance with this Act.

Who can Adopt a child?

In order to adopt a child, the person must be a Hindu and have the capacity to adopt it. A Hindu
male who wishes to adopt a child must meet the requirements provided in Section 7 of the act
and a Hindu female wanting to adopt shall abide by Section 8 of the same.

The capacity of a Hindu male to adopt:

Section 7 states that a male Hindu who is willing to adopt a child must fulfil the following
conditions:
o Attained the age of majority; and

o Be of sound mind.
o Must have a wife that is alive whose consent is absolutely necessary.
o It can be overlooked if the wife is incapable of giving consent due to insanity or other
reasons.
o If a person has multiple wives, the consent of all the wives is necessary for adoption.

In Bhola & Ors v. Ramlal & Ors, the plaintiff had two wives and the validity of adoption was in
question as he had not taken the consent of one of his wives before adopting.
It was the contention of the plaintiff that his wife had absconded and could be considered as
good as dead.
The High Court of Madras observed that the wife of the plaintiff had run away but could not be
considered dead unless she had not been heard from for at least seven years. It was held that as
long as the wives are alive, the consent of each wife is necessary for a valid adoption.
If the wife has converted to
necessary for adoption. But, the existence of a living wife is an essential requirement for a Hindu
male to adopt children.

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The capacity of a Hindu female to adopt:
Section 8 of the act states that a Hindu Female willing to adopt a child must:
o Have attained the age of majority;
o Be of sound mind;
o Be either a widow;
o Divorced, or
o Unmarried in order to adopt.
If she has a husband who is alive, she will not have the capacity to adopt a child.

Who can give a child for adoption?

No one but the parents and guardian of the child can give them up for adoption as per Section
9 of the Hindu Adoption and Maintenance Act.

As per the act:

Only the biological father of a child has the authority to give him up for adoption;
Th
A mother will have the capacity to give the child up for adoption if:

The father is either dead;

Of unsound mind;
Has renounced the world; or
Converted to some other religion.
The section clearly mentions that the father and mother mean biological parents and not adoptive
parents. Adoptive father or mother cannot give the child up further for adoption.

Can the guardian give a child for adoption?

A guardian as described in Section 9 of the act means a person appointed by the parents of a
child or the court for taking care of the child and his/her property.
are either dead, have renounced the world, have lost their mind or have abandoned him he can
be given up for adoption by the guardian.

But in order for a guardian to give up a child for adoption, he must have the permission of the
court for doing so. The court for giving such permission must be satisfied that:

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

2. No payment has been made in any form in exchange for the child.

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Validity of Adoption

Under the Hindu law of adoption, only a Hindu can adopt a child if he/she abides by the
essentials prescribed in Section 6 of the act:

The adoptive parent/s have the capacity and rights to adopt;

The person/s giving up the child for adoption has the capacity to do so;
The person being adopted has the capacity to be taken in adoption;
The adoption is made in compliance with the act.
Only upon meeting these requirements shall adoption be valid.

Necessary Conditions for Adoption

The Hindu Adoption and Maintenance Act prescribes a set of rules for a valid adoption, which
must be complied with. Such as:

Adoption of a son
Section 11(i) of the act states that if a Hindu male or female desires to adopt a son, they must
not have a living son, grandson, or even a great-grandson at the time of adoption.
It is irrelevant whether the son is legitimate, illegitimate, or adoptive. They should not already
have a son who is living.

Adoption of a daughter
Similar to the conditions of adopting a son Section 11(ii) states that one wishing to adopt a
daughter must not have a living daughter or a granddaughter from their son at the time of the
adoption.

It is immaterial whether the daughter or granddaughter is legitimate, illegitimate, or adoptive.

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Adoption of a female child by a male

A Hindu male willing to adopt a girl child must have the capacity to adopt a child as prescribed
in Section 7 of the act, and Section 11(iii) states that he must be at least 21 years older than the
girl child that is to be adopted.

Adoption of a male child by a female

If a Hindu female wants to adopt a male child, she must first meet the requirements prescribed
in Section 8 of the act and have the capacity to adopt a child. Also, she has to be at least 21 years
older than the child she wishes to adopt.

Other conditions

When adopting a child, a person must comply with some additional conditions along with all
the aforementioned conditions.
These additional conditions are basic and are very important for the welfare of the child.

Section 11(v) of the act says that the same child cannot be adopted by multiple people
at the same time.
Section 11(vi) states that a child that one wants to adopt must have been given up for
adoption as per the guidelines of this act, by their biological parents or guardian.
The Section further states that the child shall be given up for adoption with the
intention to transfer him/her from their biological family to the adoptive one.
In the case of an abandoned child or whose parents are unknown, the intention must
be to transfer him/her from the place or family that they have been brought up to their
adoptive family.

Effects of Adoption
Adoption will completely change the life of a child in many ways. He becomes a part of a new
family and will have rights in the property as well.
Section 12 of the act states:

When a child has been adopted,

They shall be considered as the child of their adoptive parents for all purposes.
The adoptive parents shall have all the parental obligations and rights.
The child shall have all the rights and obligations of a son/daughter.

However, there are some conditions that the child must abide by after he has been adopted, such
as:

He/she must not have an incestuous relationship with anyone from their biological
family, and should not marry anyone from their birth family. The rules of the Hindu

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 Marriage Act, 1955 e applicable to them towards their
birth family.
If the child had any property before the adoption, it shall continue to be in their possession
after. However, such property may bring some obligations over him and he shall be liable
to all those obligations, including having to maintain his biological family if required.
The adopted child shall not deprive any member of his birth family of any property that
he held before the adoption.

It is important for the adoption to be valid to have any effect at all. In Sri Chandra Nath Sadhu
& ors v. The State of West Bengal & ors, the High Court of Calcutta stated that a void adoption
will not create any rights in the adoptive family for anyone that could have been obtained from

Rights of adoptive parents to dispose of their property

If adoptive parents wish to dispose of their properties by transfer by gift or will, they are free to
do so and adoption does not stop them. Unless there is an existing agreement that states the
contrary.

Who will be the adoptive mother in case of adoption by a male?

A Hindu male who has a living wife must have her consent for adopting a child.

Section 14(1) of the act states that in such cases the wife shall be deemed to be the
mother of the adopted child.
If a male who adopted the child has multiple wives, the senior-most wife shall be
considered to be the mother of the adopted child while his other wives shall have the
status of stepmothers as stated in Section 14(2) of the act.
Section 14(3) of the act states that if a child has been adopted by a bachelor or a
widower, the woman he marries if he ever gets married will become the stepmother
of the child.
A widow or bachelorette who adopts a child will be their mother and in case she gets
Section
14(4) of the act.

Cancellation of Valid Adoption

When a person has opted for adoption and it has been validly made, there is no way
that they can cancel the adoption.
Section 15 of the act clearly states that neither the parents can cancel a valid adoption,
nor the child has any right to renounce their adoption and return to their biological
family.
Once a valid adoption is made, there is no going back. It is final.

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Prohibition of payments
With the increasing child trafficking around the world, the prohibition of payments during an
adoption is one of the most important rules in order to ensure that the child is not being sold.
It is stated in Section 17 of the act that no payment can be received or made during an adoption
by anyone. No one shall receive any reward in monetary or non-monetary ways for adopting a
child or giving them up for adoption.
If one is caught making or receiving payment in any form during the process of adoption, they
shall be liable for imprisonment for up to 6 months and/or fine.

Maintenance
Chapter 3 of the Acts deals with Maintenance.

What is maintenance?

Maintenance has been described in the definition clause of the act i.e, Section 3(b) as
something that can provide for food, clothing, shelter, education and medical
expenses.
Basically, it is financial support paid by a husband or a father that covers all basic
necessities of life.
The section also says that if the maintenance is to be provided to an unmarried
daughter, it shall also cover all the reasonable expenses required in her day to day life
till the day she gets married.

Maintenance of Wife

The wife must be paid maintenance after divorce until she gets married again. The idea behind
this is to let her live with her lifestyle and comfort that existed during her marriage, and it must
be paid until she gets remarried.
There is no minimum or the maximum amount fixed for maintenance, it is to be decided by the
court according to the earning capacity of the husband.
If the husband is well to do then the maintenance shall be high in order to match the rich lifestyle
the wife was used to during the marriage.
If that is not the case, it must be a reasonable enough amount that can cover all her reasonable
expenses.

When is the wife entitled to maintenance?

Section 18(2) of the Hindu Adoption and Maintenance Act provides a list stating when a wife
will be entitled to maintenance. As per the Section, a wife can live separately from her husband
and still have the right to claim maintenance in the following situations:

The husband has deserted his wife by abandoning her without any reasonable cause
and without seeking her consent or deliberately ignoring her wish.
The wife has been subject to cruelty during her marriage and considers living with her
husband to be endangering her life.
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 If the husband is suffering from an incurable and contagious disease.
The husband has another wife or a mistress in the same house or he lives with another
wife or mistress at some other place.
The husband has converted to some other religion or some other reasonable grounds
that can justify why the wife should live separately.
Maintenance can be paid every month or in a lump sum. Even when the wife has some source
of income and some property but needs some financial aid for necessary expenses such as
medical expenses. It is the obligation of the husband to pay maintenance for such expenses if
required.

The same was held b Smt. Anita Thaukral v. Shri

Satbir Singh Tkukral.

In the aforementioned case, the wife had some source of income and also had an apartment in a
good location but, she was unable to make enough money to cover up her medical expenses.

The court held that:

The wife will use one of the debit cards of the husband,
with the undertaking that she will only withdraw a reasonable amount as may be
necessary for her medical expenses.

When maintenance is not to be paid to a wife?

A wife must be maintained after a divorce in order to financially support her. But there are some
exceptions to this rule.

Section 18(3) of the act states that a wife will not be entitled to maintenance:

If a Hindu wife has committed adultery or has any other illicit sexual relationship with
anyone else, she shall not be entitled to maintenance.
Also, if she no longer remains a Hindu and gets converted to some other religion that
does not fall under the spectrum of Hinduism.

Also, in the case of Abbayolla M. Subba Reddy v. Padmamma:

The defendant had two living wives,

The second wife was claiming maintenance,
A bigamous marriage is illegal under Hindu Laws,
The validity of the marriage of the defendant with his second wife was in question.

The High Court of Andhra Pradesh held that:

If a man has two wives, the marriage with a second wife will be void ab initio as Hindu
laws prohibit bigamous marriage and the parties never actually become husband and
wife.
Therefore, the second wife will have no entitlement to any kind of maintenance as the
marriage is void ab initio.
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Maintenance of widowed daughters-in-law
A husband is liable to pay maintenance to his wife after they get divorced. However, if the
husband is dead, it is the obligation of his father to pay maintenance to his daughter-in-law.
Section 19 of the Hindu Adoption and Maintenance Act states the same, but the father-in-law
shall only be liable to pay maintenance if:
His daughter-in-law has no sources of income;
She has no property to sustain herself on her own;
If she has some property, it is insufficient to meet her basic expenses.
In case she has no property of her own and any property of her husband, parents or children are
not fetching her any maintenance.
The second clause of Section 19 also states:
That a father-in-law shall not be liable to pay any maintenance if:

He is not able to do so from any coparcenary property in his possession;

The daughter-in-law has no share in that property, and such obligation will end if she
gets remarried.

Maintenance of children and aged parents

People who cannot earn money for themselves due to reasonable grounds need to be given
maintenance in order to meet their basic necessities. Such people can include children and old
people.
Section 20 of the act states:

A Hindu male or female is obligated to maintain their children whether they are legitimate
or illegitimate.
Children shall claim for maintenance from their parents as long as they are minor.
An unmarried daughter shall be entitled to maintenance even after attaining the age of
majority, till the day she gets married.

The section further prescribes that:

Parents who are old or have physical or mental weakness need to be maintained if they
are not able to maintain themselves.

In the case of Mst. Samu Bai & anr v. Shahji Magan Lal, the High Court of Andhra Pradesh
held that:
The maintenance to aged and infirm parents must only be provided if the parents have no means
to sustain themselves, or are unable to maintain themselves out of their own property or
earnings. So, we can infer that if the old parents have enough means to maintain themselves, the
obligation of children to maintain them can be relaxed.

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Maintenance of dependants
Dependents of a deceased must be maintained if they do not have the capacity to do so by
themselves. Section 21 of the act defines dependents and Section 22 states that such persons
shall be entitled to maintenance.

Who are dependents?

Dependent is someone who relies on parents, brother or some other relative for sustaining
themselves.
Section 21 of the act says that in the context of this act dependents refer to the following relatives
of the deceased:
A father.
A mother.
A widow who has not remarried.
A minor son, grandson, or great-grandson with predeceased father and grandfather.
Provided he has not been able to obtain maintenance from any other source.
Unmarried daughter, granddaughter, or great-granddaughter with predeceased father
and grandfather. Provided she has not been able to obtain maintenance from any other
source.
A widowed daughter who has not been able to obtain maintenance from the estate of
her husband, children, or from her in-laws.
Widowed daughter-in-law, or widowed granddaughter-in-law, who has not been able
to obtain maintenance from any other sources.
An illegitimate minor son or illegitimate unmarried daughter.

Do dependents need to be maintained?

Section 22 of the act states:

That dependents of a deceased Hindu must be maintained by his heirs with the aid of
the estate that they inherited from the deceased.
When the dependents have not been left with any share in the property or estate by
way of will or succession, they are still entitled to be maintained by whoever takes
over the estate.
If multiple persons have taken over the property of the deceased, each one of them
will be liable to maintain the dependents.
The amount of maintenance to be paid will be divided among them depending on the
value of the share they hold in that property.
In case a dependent has obtained some part of share in the property of the deceased,
they will not be liable to maintain other dependents.
Others who have taken over the property will still have to maintain other dependents
but the dependent holding a share shall be excluded and maintenance will now be paid
from the remaining property.

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Amount of Maintenance
There is no fixed amount for maintenance that shall be paid. It is at the discretion of the court to
determine the amount of maintenance.
Section 23 of the act states that while deciding the amount of maintenance to be awarded to a
wife, children, or old and infirm parents the court must do so considering the following:

Status of parties and their current position;

The claims of the parties within reasonable limits;
If the claimant living separately have justified grounds in doing do;
All sources of income of the claimant and the value of their property;
The number of people that are entitled to be maintained.

Section 23(3) further simplifies the process of deciding the amount of maintenance payable to
other dependents. It says that the amount of payment to be made should be with regard to:

The
Will of the deceased if any;
Degree of the relationship between the claimant and the deceased and their past
relationship;
What the dependents want within reasonable limits;
All sources of income of the dependent and the total value of all their properties;
The number of dependents that can be entitled to maintenance.

Alteration of the amount due to change in circumstances

The amount of maintenance to be paid can be decided by the court or by an agreement between
the parties.
Maintenance is paid to provide aids for the basic needs of everyday life in case a person does
not have the source or ability to provide for themselves.
Section 25 of the act states that the amount of maintenance may be altered with the change in
circumstances.
But, the section is vague. It does not say on what changes in circumstances can the alteration be
sought and how the alteration can be done.
In the case of Binda Prasad Singh v. Mundrika Devi, the High Court of Patna observed that
there was no set procedure mentioned in Section 25 as to how the amount can be altered.
The court stated that:

The amount of maintenance is fixed either by an agreement or by way of a decree.

The only way to alter an agreement is by way of another agreement, and the decree
can be altered by amendment of degree.
So, another suit must be filed for altering the amount of maintenance and a new decree
that supersedes the older one must be granted if the court thinks fit.

The claimant of Maintenance should be a Hindu-

The Hindu Adoption and Maintenance Act has been legislated for the Hindus and has the power
and authority to govern only people that belong to the Hindu religion.
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If any of the party is not a Hindu or has ceased to be one, they cannot claim maintenance as per
this act.
Section 24 of the Act says:

No one will be entitled to claim maintenance under the Hindu Adoption and
Maintenance Act if they have ceased to be a Hindu by converting themselves to some
other religion.

Can maintenance be a charge?

The Hindu Adoption and Maintenance Act

However, we can refer to Section 100 of The Transfer of Property Act, 1882, wherein charge
has been defined as:

Making immovable property security for payment of money to a person. Such a

transaction will not be considered as a mortgage but will be said to have a charge on
the property.

Section 27 of the Hindu Adoption and Maintenance Act states that:

unless otherwise provided in a will of the deceased or an agreement between the

deceased and the dependent.

In the case of Kare More Sharabanna Rudrappa & ors. v. Basamma & ors, it was held
that:

must be paid maintenance by making a charge over his property that he possesses,
and
Out of those properties that have been transferred gratuitously in order to avoid
responsibilities.

In the case of Gangubai Bhagwan Kolhe v. Bhagwan Bandu Kolhe, it was held that:

If a wife is entitled to maintenance,

after his death.

charge cannot be made over that property, but if it is not enough, then it is necessary
to keep a charge in order to recover her maintenance.
As judicial precedent has the power to supersede the legislation, maintenance can be a charge
with or without any agreement or will of the deceased.

Debts to have priority

If there is a charge on the estate of the deceased, the money must first be used to clear out all
the debts that are payable by the deceased, as per Section 26 of the Hindu Adoption and
Maintenance Act.
as a religious connotation.

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In the case of Kripal Singh v. Balwant Singh, it was held by the court that such debts shall be
binding on the son which is not:
Immoral,
Illegal,
Opposed to public policy, or
Agreed upon due to a reckless borrowing of money for no reasonable grounds or for
deliberate waste.
It is the religious, moral, and legal duty of the dependents to pay off the debts of the deceased
before using the money for maintaining themselves.

Effect of transfer of property on rights to maintenance

A dependent who is entitled to receive maintenance from a property or an estate and the very
estate gets transferred, it becomes the obligation of the transferee to maintain the dependent if
the transferee has received a notice regarding that right or if the transfer is without any
reasonable grounds.

Section 28 of the Hindu Adoption and Maintenance Act states that:

The transferee has to maintain the dependent out of the property he received if he has
the notice of the right or the transfer is gratuitous.

This idea flows from Section 39 of the Transfer of Property Act, 1882 which says that:

If a third person is entitled to be maintained from the profit made out of immovable
property and such property is transferred, the transferee will be liable for the payment
of such maintenance if there was a notice or if the transfer is gratuitous.
But if the property was transferred for consideration and notice was not provided
regarding the maintenance then the transferee will not be liable to make any payments
for maintenance.
The maintenance can only be recovered from the property transferred by the person
who was originally liable to pay maintenance and cannot be recovered from any other
property that the transferee holds.
This act is one of the most important acts that protect the rights of children during the course of
adoption. It protects women, children, old & infirm from living on the streets and starving to
death. It ensures they are maintained by someone and the judicial pronouncements have further
strengthened the act in order to make our rights stronger and sections much clearer.

Case Laws

Patel Mukesh Kumar vs Regional Passport Authority

Facts of the case:
ion before the passport authorities for the inclusion of his adoptive

the time of adoption and hence the adoption was not valid. On appeal against this rejection,
it was held that the passport authority has no power to render a finding regarding the legality
or otherwise of the adoption of such findings could be given only by a competent court.
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 Further, the adoption was affected by a registered deed. There is a legal presumption that
the same has been made in compliance with the statutory requirements unless it is proved
otherwise. In this case, it was not the case of the respondent passport authority that the
adoption has been disproved, hence the presumption of validity of the adoption would apply,
the court held.

Binapani Samanta vs Sambhu Mondal

Facts of the case:
The petitioner has filed a petition challenging the defendant who is the probate of the will
on the ground that she was the adopted daughter of the deceased who died and the probate
is fraudulent. But she fails to prove the burden of proof of the validity of the adoption. It
was held that she could not challenge the probate.

Malti Roy Chowdhury vs Sudhindranath Majumdar

Facts of the case:
This case is filed by the petitioner for the right of married women for adoption because
according to Hindu Adoption and Maintenance Act married women cannot adopt a child
and not even with the consent of her husband. This case is related to gender discrimination.

male in case of marriage, and not by the wife. In other words, the wife cannot adopt even

Conclusion
It is clear that the only statute which recognises adoption is the Hindu Adoptions and
Maintenance Act, 1956. This Act has been departed from the earlier law in liberalise way. But
at the same time, this Act has some loopholes also. This Act only applies to Hindus and there is
no such specific law governing adoption in any other religions.

Though the Act has tried to eradicate gender biasness but still not able to do that fully. Adoption
should be with the consent of both the parents, both parents should equally participate; otherwise
it will be the child only who is going to suffer. The children are vulnerable and totally dependent
on the adults who are making their life decisions, and hence safeguarding their rights and
interests is of prime importance. Adoption not only fulfils the desire of the parenthood on part
of the adoptive parents but also provides a family to the child.
Other aspect could be that adoption in a sense helps in population control. All children are God
gifted. So, there should not be any difference betwee
Rather than conceiving a greater number of children, one can adopt which will ultimately serve
two purposes: population control and most important is child welfare.
s. By adopting them, they will be able
to entail the proper education, relations, etc. The only thing needs to be taken care that the child
is getting in the right hands. This can be ensured by checking the adoptive family background,
tionship, attitude for adoption, financial stability, etc.
To ensure the welfare of the children, there needs to be uniform civil code for adoption.
In case of maintenance, it is evident from the recent judicial decisions that the Indian courts have
been progressively liberal in deciding cases pertaining to maintenance. The root of contention
however is whether a paramour can become entitled to receive maintenance merely from the fact

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that living with a married man, coupled with dispute as to whether the bigamy is legally
permissible.

While it appears from the decisions passed under the personal laws that the same may be possible,
judicial decisions pertaining to section 125 continue to uphold the view that maintenance can be
claimed only by a legally wedded wife. Maintenance has been concern of not only weaker sections
but of the society as well. For weaker sections, it is a problem in the sense their very survival rests
on the provision made available as maintenance.

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