Table of contents

Chapter- I

Abstract…………………………………………………………………………….03

Introduction…………………………………………………………………………03

Literature Review…………………………………………………………………….04

Research methodology………………………………………………………………...05

Research Objective…………………………………………………………………….05

Research Questions……………………………………………………………………...05

Chapter – II

What is desertion?.............................................................................................................06

What is adoption?..............................................................................................................09

Who can adopt?.................................................................................................................09

Adoption rights of a deserted wife……………………………………………………….11

The necessity of law of adoption………………………………………………………….12

Adoption under Hindu law…………………………………………………………………12

“Adoption and maintenance act 1965” ……………………………………………………13

Chapter- III

Conclusion……………………………………………………………………………………17
Chapter- I

Abstract

The objective of this Paper to provide the reader with a comprehensive examination of a
deserted wife's adoption right in India under Hindu law. Although adoption has been
practised for decades, it was only made legal in the nineteenth century. There are many
different religions in India, no single adoption legislation applies to them all. “The Hindu
Adoption and Maintenance Act of 1956” is the sole personal legislation in India that regulates
adoption. Because Indian religions such as “Muslims, Christians, Jews, and Parsis” do not
have their own adoption laws, they are unable to adopt a child and give him or her their
surname. They can only become the child's guardian under the “Guardians and Wards Act of
1890”. “Hindus, Sikhs, Buddhists, and Jains all obey the Hindu Adoption and Maintenance
Act of 1956”. The Indian govt attempted but failed to establish a nationwide adoption law.
The adoption rules that regulate a deserted wife's adoption rights in India are examined in this
article, as well as the necessity for a common civil code in the adoption sector.

Introduction

In antiquity, the roots of the adoption ceremony remain unknown.

In Hindu law, there were five different categories of adopted sons. Among them were the
“Krita (Bought Son), Apaviddha (Deserted Son), Svayamdatta (Self-Given Son), Kritrima
(Son Made), and Dattaka (the adopted son who is seen as the reflection of the natural son).”
The Dattaka form, which is widespread across India, and the Kritrima form, which is found
solely in Mithila and the adjacent areas, are the only two forms of adopted sons that exist
today.1 “Adoption includes both religious and secular items. Mayne says that adoption was
first recognised for secular reasons rather than religious necessity, and that the religious
motivation came afterwards. As time went on, the primary purpose of adoption became the
annual offerings to the ancestors, and it was deemed necessary that the offeror be as close to a
real descendant as possible, and that he should look as much like a real son as possible, and
certainly not one who would never have been a son.”2
Adoption is permissible under Hindu law and by custom among a few numerically minor
groups of people, despite the fact that there is no overarching rule barring it. Because it is a
legal affiliation of a kid, adoption is a personal law matter “Muslims, Christians, and Parsis”
do not have adoption laws, hence they must go to court under the Guardians and Wards Act
1
M s. Pinky Anand, Family Law & Adoption, 2nd ed. (Bombay: Green Book House, 2009), pp. 1-5.
2
Ibid.
of 1890”. “Muslims, Christians, and Parsis”” can only take a child into foster care under the
specified Act. When a foster child reaches the age of majority, he is free to terminate all
relations with his foster family. “Aside from that, such a child has no legal right to inherit.
Foreigners who want to adopt Indian children must file a court application under the
aforementioned Act.”
“Adoption under foreign law, i.e., legislation applicable to guardians, takes place outside the
country if the court has granted authorization for the child to be taken out of the country.”3

Three independent legal systems are in use: “Hindu Law, Muslim Law, and the Guardians
and Wards Act of 1890”. Natural guardianship, testamentary guardianship, and court-
appointed guardianship are all possibilities. Two criteria must be examined while deciding on
guardianship: the minor's person and his belongings. It's unusual to entrust both to the same
person. “The Hindu Minority and Guardianship Act (32 of 1956) codified Hindu minority
and guardianship laws”. In the instance of uncodified legislation, it has affirmed the father's
higher right. A child is considered a minor until he or she reaches the age of eighteen,
according to the law. “For both boys and unmarried girls, the father is considered as natural
guardian, followed by the mother”. The mother's prior claim to custody is recognised only for
children under the age of five. In the event of “illegitimate children”, the mother has a
stronger legal claim than the presumed father. Because the law does not distinguish between
the minor's person and his property, guardianship includes authority over both. When
deciding on guardianship, the Act states that the child's well-being must take precedence.4
The father, according to Muslim law, holds the upper hand. It also distinguishes between
guardianship and custody. According to Sunnis, the father is chosen for guardianship, which
mostly pertains to property guardianship, as well as his executor in his absence. The
guardianship is passed down to the paternal grandad if the father does not choose an executor.
The father is recognised as sole guardian among Shias, but it is the grandfather's right, not the
executor's, to assume responsibility after his death. However, both schools agree that the
father is the child's exclusive guardian while he is alive. The mother is not recognised as a
natural guardian even after the father's death. The right of a father to be a natural guardian is
unquestionable. It pertains to both property and individuals.

3
[http://www.cara.nic.in/adoption/hindu]
4
[http://en.wikipedia.org/wiki/adoption_of_the_child]
Even if the minor is in the mother's custody The father's general right to observe and control
his child remains unaffected. Father, on the other hand, has the ability to Make your mother
your children's testamentary guardian. As a result, even if mother isn't in the room, there is no
reason why she shouldn't be nominated as a natural guardian under the law.
“According to Islamic law, a mother's right to custody of minor children (Hizanat) is
unalienable. Even her father can't take it away from her. Only misbehaviour has the potential
to deprive the mother of this right. In terms of the age at which the mother's right to custody
ends, the Shia school believes that the mother's right to the Hizanat ends when the child
reaches the age of two, whereas the Hanafi School believes that the time continues until the
minor son reaches the age of seven. Girls' mothers' rights are protected until they reach the
age of seven, and they must attend Hanafi School until they reach puberty, according to Shia
norms.”5 “The Guardians and Wards Act of 1890” governs guardians and wards in general.
It specifically specifies that the father's right to be nominated comes first, and that no one else
can be nominated unless the father is found unsuitable. This Act also specifies that the court
must consider the child's welfare while appointing a guardian.

Literature Review

The researcher, with her preliminary research, concludes that there are no existing literature
works analysing the Adoption rights of a deserted Hindu Wife, at the time of research. In
order to gather information regarding the same, the researcher referred to the following
resources. The researcher referred to the article “Family law in India: an overview
by Pinky Anand, on Thomson, returns, 2020”6, in this, the researcher provided the reader
with information regarding all matters related to family disputes such as divorce, children,
surrogacy and adoption etc. In another paper by “Akshita Nigam & Konark Gupta on
Maintenance rights of Deserted Hindu wife, International journal of law and legal
jurisprudence”7 the researcher provided the reader with detailed information on the
“adoption and maintenance act of 1965” and gave a detailed explanation on the desertion of a
Hindu wife and her rights. In order to understand the process of adoption and details about
who can adopt, the researcher also referred to a paper by “Yeasmin and Farhana on

5
(2002) 3 SCC 634: AIR 2002 SC 1428: (2002) 3 JT 52
6
Family law in India: an overview, Pinky Anand, Thomson, returns, 2020
7
Akshita Nigam & Konark Gupta, Maintenance rights of Deserted Hindu wife, international journal of law and
legal jurisprudence
Adoption under Hindu Law, 2010, Staford repository”8 and “Adoption Laws in India:
Challenging Existing law, Niraj Meena, manupatra”9. In order to be able to differentiate
between modern Hindu law and ancient Hindu law the researcher referred to a book by “D.
F. Mullah, Principles of Hindu Law, 5th ed. (Bombay: N.M. Tripathi Private Limited,
1982)”

Research Methodology

The researcher proposes a doctrinal mode of research for this paper as it was conducted in
legal proportions and was focused on a specific subject. While attempting to demonstrate the
breadth of the subject, the paper also concentrates on the growth of the “adoption and
maintenance act of 1965” and depicts the advancement of judgments by giving examples of
case facts and statutes.

Research Objective

1. The objective of this paper is to understand desertion and the available rights of a
deserted Hindu wife.
2. The researcher wishes to understand the adoptions laws under Hindu Law.
3. Identify the sections available under the “Adoption and maintenance act of 1965”

Research Questions

Who is eligible to adopt?

Adoption Rights under the

Why Is adoption Law important?

What are the rights of an adopted child?

Chapter- II

8
Yeasmin, Farhana, Adoption under Hindu Law, 2010, Staford repository
9
Adoption Laws in India: Challenging Existing law, Niraj Meena, manupatra
What is desertion?

Hindus are born into a joint family, and joint family property is nothing more than an
extension of that family. “A deserted wife is a woman who has been abandoned by her
husband in the following circumstances: her husband abandoned her on his own volition or
because of his conduct, i.e., constructive desertion; she is not financially supported by her
husband or, if she is, the amount is less than the rate of Deserted Wife's Benefit appropriates
to her family size; she and her husband have lived apart for at least six months."10

According to the Hindu Adoption and Maintenance Act of 1956, an abandoned wife is a
woman whose husband is guilty of desertion, which is defined as "abandoning her without
good cause and without her consent or against her will, or of intentionally neglecting her."11
Living together is at the heart of marriage; living apart is the polar opposite. The legal term
for this denial of marriage's fundamental foundation is desertion. The deserted spouse might
seek matrimonial remedies if one spouse abandons the other in an unreasonable manner. In
“Savitri Pandey v. Prem Chandra Pandey”1215, the Supreme Court stated: "Desertion for the
purpose of seeking a divorce under the Act" is defined as "the wilful permanent forsaking and
abandonment of one spouse by another without the other spouse's agreement and without
acceptable grounds." In other words, it is an outright rejection of marriage's responsibilities.
Desertion is a state of affairs rather than a removal from a location. Desertion is a persistent
pattern of behaviour that must be assessed based on the facts and circumstances of each
individual case." In “Bipinchandra jai Singhbai v. Prabhavati”13, a case under the “Bombay
Hindu Divorce Act, 1947”, the court defined and examined the concept of desertion.

It was ruled that abandonment is not deemed desertion if a spouse abandons the other in a
state of temporary passion, such as fury or disgust, without intending to stop cohabitation
permanently. It went on to say, among other things: In order for the desertion spouse to be
prosecuted with desertion, two conditions must be met, namely

1. The occurrence of desertion, and

10
Code of Criminal Procedure 1973, Ch IX, ss. 125-128.
11
Article 15(3) of The Constitution of India states that, “Nothing in this Article shall prevent the state
from making any
special provisions for women and children.”
12
Savitri Pandey v. Prem Chandra Pandey (2002)2 SCC 73.
13
Bipinchandra jai Singhbai v. Prabhavati AIR 1957 SC 176 .
2. the desire to permanently discontinue cohabitation (animus deserendi). Two things are
equally essential in the event of the deserted spouse:

(i). A lack of permission; and

(ii). A lack of activity that would reasonably lead to the spouse leaving the matrimonial home
with the aforementioned aim.

Desertion is a judgment based on the facts and circumstances of each situation. The charge of
desertion begins when the fact of separation and the animus deserendi coexist. “It is not
necessary for them to begin at the same time. The de-facto separation may have begun
without the necessary animus, or the separation and animus deserendi may have occurred
simultaneously, such as when the separating spouse abandons the marital home with the
express or inferred intent of permanently ending cohabitation. Unless divorce proceedings
have been initiated, desertion ends if a deserting spouse takes advantage of the locus
poenitentiae and decides to return to the deserted spouse with a bona fide offer of resuming
the matrimonial home with all the implications of marital life before the statutory period
expires or even after that period has expired, and if the deserted spouse unreasonably refuses
the offer, the latter may be in desertion.
As a result, the deserted spouse must confirm the marriage during the period of desertion and
be ready and eager to restart married life on reasonable circumstances. It is also well known
that in order to seek a divorce, the plaintiff must prove desertion, like any other matrimonial
offence, beyond a reasonable doubt.” As a result, while corroboration is not required as a
general rule of law, courts insist on it until it can be explained to the satisfaction of the court.
Constructive Desertion, as a concept, has a tremendous impact as well. In “Bipinchandra
Jaisinghbhai Shah v. Prabhavati”1418, it was held that desertion does not require the
deserting spouse to leave the residence. “Desertion occurs when one spouse, through his or
her words, causes the other to leave or stay away from the matrimonial home without
reasonable cause, even if the latter is the one who looks to be separated from the other.
Desertion is described as kicking out the other spouse from the house in order to avoid
cohabitation.” This is the foundation of "Constructive Desertion." Several matrimonial
statutes, including the “Hindu Marriage Act of 1955”, the “Special Marriage Act of 1954”,
the “Parsi Marriage and Divorce Act of 1936”, and the “Dissolution of Muslim Marriage Act
of 1936”, among others, use desertion as a legal ground for judicial separation and divorce.in

14
Bipinchandra jai Singhbai v. Prabhavati AIR 1957 SC 176
the case of “Narayan Moreshvar Pendse v. Yamunabai”15 the court held that "Unless the
husband has forfeited his marital rights by his cruelty or misconduct, or has driven his wife
out of doors, or has compelled her to leave him by some insult or ill-treatment,"

What is Adoption?

The Act does not define "adoption," but it is a Hindu law inherited from the uncodified Hindu
laws of Dharamsastra, particularly Manusmriti. Adoption is characterised in Manusmriti as
"taking someone else's son and raising him as one's own."The Hindu Adoption and
Maintenance Act extended the concept of "adoption" by using the word "child" instead of
"son. “A child does not have to be a son to be a girl or a boy. As society evolved, it became
increasingly important to have codified and consistent legislation to support democracy. As a
result, no adoption can take place unless the procedure described in this act is followed. Any
adoption that is made in contravention of this law will be considered null and void. Adoption
is only legal if it is done in compliance with the provisions of this Act.

Who can adopt?

Capacity of male
“Adoption of a son or daughter is legal for any Hindu man of sound mind who is not a minor.
If he has a living wife, he cannot adopt without her consent unless she has completely and
permanently abandoned the world or stopped being a Hindu, or has been declared mad by a
competent court. If a person has more than one wife living with him or her at the time of the
adoption, all of the wives' consent is required unless one of them is exempt for any of the
reasons specified in the preceding section.”16

Capacity of female
A Hindu Female of:

a. sound mind,

b. not a minor,

c. “who is not married, or if married, whose marriage has been dissolved or whose husband
is dead, or who has completely and permanently renounced the world or ceased to be a

15
Narayan Moreshvar Pendse v. Yamunabai (1876) 1 Bom. 164.
16
Abul Kalam Azed, Introduction of Hindu Law, 3rd ed. (Dhaka: Ideal Law Book House, 2004), pp.69-
70.
Hindu, or who has been declared of unsound mind by a court of competent jurisdiction, has
the capacity to adopt a son or daughter.”17

According to its preamble, the “Hindu Adoptions and Maintenance Act of 1956” codifies and
changes the previous Hindu law of adoption and maintenance. In “Vijayalakshamma v. B.T.
Shankar”18, “the Supreme Court held that the purpose of the Act was not only to amend, but
also to codify, the law regarding adoption and maintenance, as well as to give the Act's
provisions precedence over any text, rule, or interpretation of Hindu law, custom, or usage
that was inconsistent with it. The ancient Hindu belief that a son was required for the spiritual
salvation of the father and ancestors spurred the evolution of adoption laws and customs.
However, a more secular approach appears to have succeeded it under the Act. Except for
marriage, the Act contemplates and provides that an adopted child shall be deemed to be the
child of his or her adoptive father or mother for all purposes from the date of adoption and
from such date, and that all ties of the child in his or her birth family shall be deemed to be
severed and replaced by those created by adoption in the adoptive family.”

“Requisites of a Valid Adoption”

“The Hindu Adoptions and Maintenance Act (HAMA)” allows only Hindus to adopt if they
meet specified criteria. According to the requirements of this act, no adoption will be valid
unless it meets the following conditions:

• The person adopting should be capable and possess the right to adopt

• The person giving in adoption should have the capacity to do

• The person being adopted should be capable of being adopted (HAMA)

Every “Hindu Adoptions and Maintenance Act (HAMA)” adoption must meet the following
requirements: The procedure of adopting a son entails the adoption of a child. The adoptive
mother or father cannot have a Hindu son, son's son, or son's son's son living with them at the
time of the adoption if the child is a boy. They can't have a son, either organically or through
adoption.

Adoption rights of a Deserted Hindu Wife

17
THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956
[Act No.78 of 1956] [21st December, 1956]
18
Vijayalakshamma v. B.T. Shankar
“Section 8 of HAMA”, which deals with a Hindu woman's ability to adopt a child, states: For
married women, the most important requirements are that she is divorced or widowed, that
her spouse has renounced the world, or that her husband has been deemed mentally ill by a
competent court. A married woman can only seek adoption in the conditions indicated above.
On the other hand, if a single woman is a major, capable of caring for a child, and of sound
mind, she can adopt. An abandoned lady, on the other hand, who is neither lawfully married
(due to her husband's negligence) nor single (due to her husband's neglect) is a lost cause
(because she is considered to be in a marital knot). In other cases, the spouse will refuse to
approve to adoption because he will be responsible for the children's welfare. As a result, she
is unable to proceed with the adoption without her husband's agreement, as he has completely
abandoned her. Every piece of legislation has the ability to change and evolve. There are a
number of factors that influence how the law changes throughout time. The eradication of
certain customs, a shift in thinking, and global evolution are examples of such components.
“Brajendra Singh vs. State of Madhya Pradesh” was a landmark case. "Mishri Bai moved
home with her father after her husband abandoned her shortly after their wedding, and he
gave her a plot of land to live on." Brajendra Singh was the child she adopted after that.
Before she died, Mishri Bai created a will for her adopted kid, which included the factum of
adoption. Because they were no longer living together, the son was relieved that their
marriage had ended. The Supreme Court, on the other hand, determined that there was no
divorce and that she was the adoptive mother of her deceased kid rather than her own child.
Mishri Bai was unable to adopt as a result of the Act." In this instance, the court held that an
abandoned woman is not permitted to adopt a child, and that if she does, the adoption will be
declared illegitimate in the eyes of the law, despite the fact that the two women live
separately.

The necessity of the law of adoption.

Since biblical times, adoption has been practised in a variety of societies. Adoption has a long
and storied history in the United States. For over 5,500 years, Hindu literature has pondered
adoption. The causes for adoption were dominated by common themes in ancient times. The
goal of adoption was to ensure that the family's religious rites would continue while also
preserving the male line of genealogy. As a result, the adopter had to be a guy at the time
who didn't have a legitimate son. Adoption also helped to keep political dynasties alive by
building political linkages between families. “The purpose of adoption was to create a legal
heir, and the process was governed by strict rules. The adoptee had to be from the same clan
as the adopter, or at at least have the same surname and be younger than the adopter, in order
to maintain the family history straight”. In recent years, there has been a significant
international shift toward recognizing the importance of adoption in advancing the interests
of individual adoptees rather than broader societal goals or the interests of would-be adopters.
This process has been facilitated by the creation of global standards, just like the ones
contained in the “United Nations Convention on the Rights of the Child”. This Convention is
a cornerstone of adoption law in a number of nations, including Argentina and Uganda. The
Convention had a considerable influence in other countries, such as Scotland.

Adoption under Hindu Law.

In “Shastric Hindu Law”, adoption was seen as a sacramental rather than a secular act. The
goal of adoption, according to some judges, is twofold:

1) to ensure that one's funeral rites are carried out

2) to assure the precedence of one's lineage.

Hindus believed that a man would go to hell if he died without a son, and that only a son
could save his father from Poota. The “Hindu Adoption and Maintenance Act of 1956”
governs adoption under Hindu law. In any situation, a “Hindu, Buddhist, Jain, or Sikh” child
who has been abandoned by both the parents whose percentages unknown is reared as a
“Hindu, Buddhist, Jaina, or Sikh”. Prior to the passage of this statute, only a boy could be
adopted; however, the statute now allows for the adoption of a woman. This Act covers the
entire country of India, except for the state of Jammu and Kashmir. The “Hindu Adoption
and Maintenance Act of 1956” only applies to Hindus as defined in Section 2, which includes
“Buddhists, Jains, and Sikhs”, as well as anyone who is not a “Muslim, Christian, Parsi, or
Jew”. This was one of the reasons we decided to have a boy.

Adoption and Maintenance act 1965.

Adoption rules in India are covered in Chapter II of the Adoption and Maintenance Act 1965.
This Chapter will regulate adoptions.
(1) No Hindu shall be adopted by or to a Hindu after the commencement of this Act except in
accordance with the provisions of this Chapter, and any adoption made in violation of the
said requirements shall be null and void.
(2) A void adoption neither creates nor destroys any rights in the adoptive family in favour of
any person who could not have acquired them without the adoption, nor does it damage the
rights of any person in the adoptive family.
6. Adoption requirements- No adoption shall be valid unless I the person adopting has the
capacity and right to adopt; (ii) the person adopting has the capacity and right to adopt; (iii)
the person adopting has the capacity and right to adopt; (iv) the person adopting has the
capacity and right to adopt; (v) the person adopting has the capacity and right to adopt; (vi)
the person adopting has the capacity and right to adopt;
(ii) the person adopting has sufficient financial resources to do so;
(iii) the adoptee is adoptable; and (iv) the adoption is carried out in conformity with the rest
of this Chapter's requirements.19
7. “Male Hindus with Adoption Capacity- Any male Hindu who is of sound mind and is not a
minor is eligible to adopt a son or daughter. However, if he has a living wife, he may not
adopt without her consent unless she has completely and permanently abandoned the world,
or has ceased to be a Hindu, or has been pronounced mad by a competent court.
Explanation: If a person has more than one wife alive at the time of adoption, all of the wives'
consent is necessary unless one of the wives' assents is not required for any of the reasons
specified in the preceding provision.”20

8. “Capacity of a female Hindu to take in adoption- Any female Hindu-

(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”.21

9. “Persons capable of giving in adoption- (1) No person except the father

or mother or the guardian of a child shall have the capacity to give the child in
adoption.
(2) Subject to the provisions of sub-section (3) and sub-section (4), the father,

19
The Adoptions and Maintenance Act, 1956. Sec. 6.
20
The Adoptions and Maintenance Act, 1956. Sec. 7.
21
The Adoptions and Maintenance Act, 1956. Sec. 8.
if alive, shall alone have the right to give in adoption, but such right shall not be
exercised save with the consent of the mother unless the mother 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.
(3) The mother may give the child in adoption if the father 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.
(4) Where both the father and mother are dead or have completely and finally
renounced the world or have abandoned the child or have been declared by a
court of competent jurisdiction to be of unsound mind or where the parentage
of the child is not known, the guardian of the child may give the child in
adoption with the previous permission of the court to any person including the
guardian himself.
(5) Before granting permission to a guardian under sub-section (4) the court
shall be satisfied that the adoption will be for the welfare of the child, due
consideration being for this purpose given to the wishes of the child having
regard to the age and understanding of the child and that the applicant for
permission has not been received or agreed to receive and that no person has made
or given or agreed to make or give to the applicant any payment or reward in
consideration of the adoption except such as the court may sanction.”
Explanation- “For the purposes of this section-
(i) the expressions "father" and "mother" do not include an adoptive father and
an adoptive mother,
(i-a) "guardian" means a person having the care of the person of a child or of
both his person and property and includes-
(a) a guardian appointed by will of the child's father or mother; and
(b) a guardian appointed or declared by a court; and
(ii) "court" means the city or civil court or a district court within the local limits
or whose jurisdiction the child to be adopted ordinarily resides.” 22
10. “Persons who may be adopted- No person shall be capable of being taken
in adoption unless the following conditions are fulfilled, namely-
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
22
The Adoptions and Maintenance Act, 1956. Sec. 9.
(iii) 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;
(iv) 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.” 23
11. “Other conditions for a valid adoption- In every adoption, the following
conditions must be complied with:
(i) if any adoption is of a son, the adoptive father or mother by whom the
adoption is made must not have a Hindu son, son's son or son's son's son
(whether by legitimate blood relationship or by adoption) living at the time of
adoption;
(ii) if the adoption is of a daughter the adoptive father or mother by whom the
adoption is made must not have a Hindu daughter or son's daughter (whether
by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the
adoptive father is at least twenty-one years older than the person to be
adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the
adoptive mother is at least twenty-one years older than the person to be
adopted;
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the
parents or guardian concerned or under their authority with intent to transfer
the child from the family of its birth or in the case of an abandoned child or a
child whose parentage is not known, from the place or family where it has been
brought up to the family of its adoption.
Provided that the performance of datta homan, shall not be essential to the
validity of an adoption.” 24
12. “Effect of adoptions- An adopted child shall be deemed to be the child of
his or her adoptive father or mother for all purposes with effect from the date of
the adoption and from such date all the ties of the child in the family of his or

23
The Adoptions and Maintenance Act, 1956. Sec. 10.
24
The Adoptions and Maintenance Act, 1956. Sec. 11.
her birth shall be deemed to be severed and replaced by those created by the
adoption in the adoptive family.
Provided that-
(a) the child cannot marry any person whom he or she could not have married if
he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall
continue to vest in such person subject to the obligations, if any, attaching to it.” 25

Chapter- III

Conclusion

A provision should be included that allows a destitute woman to adopt a child if she is
emotionally, physically, and financially capable. Because of the mother's or father's
incompetence, an adopted child should not suffer. He should be given all of the same
privileges as a typical child. If a woman's husband has abandoned her for no obvious reason,

25
The Adoptions and Maintenance Act, 1956. Sec. 12.
she should not rely on male consent. She should be allowed to live a normal life and have
children. A woman should not be compelled to seek permission from anyone if she is well-
cared for and capable of raising a child on her own. Adoption allows people to experience
motherhood while also helping to limit population. Couples that choose to adopt instead of
having children help to limit population and give a safe home for those who are in need. As a
result, adoption should be a flexible and non-discriminatory process. Everyone has the right
to have a child, and legal provisions should support rather than hinder their decision if they
are capable of doing so.