HINDU LAW

Essential requisites of a valid adoption.-

Section 6 of the Hindu Adoptions and Maintenance Act, 1956 provides the requisites of a valid adoption
lays down that no adoption shall be valid unless:

(i) the person adopting has the capacity and also the right to take in adoption,

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in Chapter II of the Hindu
Adoptions and Maintenance Act, 1956.

According to Section 5 of the Act, an adoption made in contravention of the provisions of Chapter II of
the Hindu Adoptions and Maintenance Act, 1956 is void. In Jai Singh v. Shakuntala, AIR 2002 SC 1428
the Supreme Court opined that Section 16 of the Hindu Adoptions and Maintenance Act, 1956
envisages a statutory presumption that in the event of there being a registered document pertaining
adoption, adoption would be presumed to have been made according to law.

1. Capacity of a male Hindu to take in adoption [Section 7, Hindu Adoptions and Maintenance Act,
1956]

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in
adoption. But if the male Hindu has a wife living at the time of adoption, he shall not adopt except with
the consent of his wife. But the consent of the wife of a male Hindu is not necessary in the following
three conditions-

(i) the wife has completely and finally renounced the world, or

(ii) the wife has ceased to be Hindu, or

(iii) the wife has been declared by a Court of competent jurisdiction to be of unsound mind.

If a man has more than one wife living at the time of adoption, the consent of all the wives must be
obtained. But if any of them is suffering from any of the three disabilities, the consent of such wife who
is under such disability may be dispensed with and the consent of all other wives may be taken.

The Act has given two qualifications for a male Hindu to be capable to take a child in adoption i.e., the
person must be of sound mind and he must not be a minor. The adoption made by a person who is of
unsound mind, at the time of adoption, is void.

The man is required to take consent of the wives or wife, before adoption. Without the consent of the
wife, or wives, the adoption will be void.

2. Capacity of a female Hindu to adopt a child

[Section 8, Hindu Adoptions and Maintenance Act, 1956] Now a female has also the capacity to adopt
any child. Section 8 of the Act provides that-

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.

Now a woman who is of sound mind and is not minor can take child in adoption. The woman has no
right to adopt, during the subsistence of the marriage, if the husband is not suffering with any of the
disabilities mentioned in Section 8 of the Act. The unmarried or widow woman has also the right to take
in adoption any child. A woman whose marriage has been dissolved by a decree of divorce, has also the
capacity to take child in adoption.

3. Persons capable of giving in adoption [Section 9, Hindu Adoptions and Maintenance Act, 1956]

Section 9 of the Act lays down the capacity of persons, who may give the child in adoption to another.

Section 9 runs as follows: No person except the father or mother or the guardian of the child shall
have the capacity to give in adoption.

(a) Capacity of the father to give in adoption.-If the father is alive, he 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 Hindu or has been declared by a
court of competent jurisdiction to be of unsound mind.

(b) Capacity of the mother to give in adoption.-The mother may give the child in adoption if the father is
dead or had 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.

(c) Capacity of the guardian to give in adoption.-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 a child may give the child in adoption with the previous permission of the Court to any
person including the guardian himself.

The Act has given the power to give the child in adoption to the

folowing persons in order of preference:

Father,Mother,Guardian, with the permission of the Court.

The father has a preferential right to give the child in adoption subject to the concurrence of the
mother. If the father is suffering from any of the disabilities i.e., is of unsound mind, or has been
converted to another religion or has completely and finally renounced the world then the mother has
the right to give the child in adoption.

The guardian may give the child in adoption with the prior permission of the Court. The Court will
consider the welfare of the child and the fact that no reward is given or taken for the adoption of the
child, before granting permission to give in adoption of the child. If he will not go in the better place
than what he had already been living, the Court may refuse to grant permission.

4. Who may be adopted

[Section 10, Hindu Adoptions and Maintenance Act, 1956]

The following conditions should be fulfilled, before a person shall be capable of being taken in adoption:

1. He should be a Hindu:

2. He or she has not already been adopted;

3. He or she has not been married, unless there is a custom or usage applicable to the parties which
permit who are married being taken in adoption;

4. He or she has not completed the age of fifteen years unless there a custom or usage applicable to the
parties which permits persons who have completed the age of fifteen years being taken in adoption. It is
to be noted here that according to the Judgment of Delhi High Court in Surajmal v. Babulal, AIR 1985
Delhi 95 adoption amongst Jains is a secular institution and it is meant to secure a heir and perpetuate
the adopter's name.

So far the age and marriage is concerned it is no bar amongst them. A Jain of any age and even married
one can be validly taken in adoption.

5. Other conditions of a valid adoption

[Section 11, Hindu Adoptions and Maintenance Act, 1956]

Section 11 of the Hindu Adoption and Maintenance Act, 1956 provides the conditions of a valid
adoption, which are as follows:

In every adoption, the following conditions must be complied with:

(i) In case of adoption of a son, adopter should have no son, son's son, son's son's son.-If the adoption is
of a son, 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) In case of adoption of a daughter, adopter should have no daughter, son's daughter. 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 adopter is male and adoptee female, adopter should be 21 years older than adoptee.-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 adopter is female and adoptee male, adopter should be at least 21 years older than adoptee.-If the
adoption is by 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. In Golak Chandra v. Krutibas, AIR 1979 206 the age of
adoptive mother was 24 years and that of the adopted son was 5 years 8 month's. The Orissa High Court
held the adoption as void, because there was no difference of minimum 21 years between the age of
the adopter and the adoptee.

(v) There should no simultaneous adoption.-The same child may not be adopted simultaneously by two
or more persons.

(vi) Formalities of Adoptions.-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, the family of its adoption: Provided that the
performance of datta homam shall not be essential to the validity of an adoption.

In Lakshman Singh Kothari v. Smt. Rup Kuwar, AIR 1961 SC 1878 the Supreme Court held that under the
Hindu law, there cannot be a valid adoption unless the adoptive boy is transferred from one family to
another and that can be done only by the ceremony of giving and taking. The object of the corporeal
giving and receiving in adoption is to secure due publicity.

Under the present Act, to effect adoption ceremony is of datta homam is not required. But the child
must be actually given and taken in adoption. Thus the actual giving and taking must be.