A Term Paper on Adoption under Hindu Law in Bangladesh.

Course Name: Hindu and Other Personal Law

Course Code: LL.B 105

Submitted To Submitted By
Bonosree Rani Rakib Ul Islam
Assistant Professor Roll: 2182
Department of Law and Justice Reg No: 20203452319
Jahangirnagar University Department of Law and Justice
Jahangirnagar University
Introduction

Sir Hari Sing Gour in his book “The Hindu Code” writes to say, “The Adoption of children is not
an institution peculiar to Hinduism. But owes its origin to the social communism peculiar to the
primitive races. The necessity for male being established, the necessity for begetting or buying
sons followed as a matter of course. The Civil Law conferred special privileges on the father of
three or more sons and it popularized the institution of adoption. The primary motive for
Adoption was entirely secular. It will be no out of space to mention that in early times, children
irrespective of their sex were taken in Adoption and this is recommended by Nanda Pandit who
commends the adoption of daughter. Though the adoption of daughter is not altogether unknown,
it is now as dead as do amongst all classes of Hindus, except the dancing girls amongst whom it
is still common. So the Adoption, as now practiced, is the Adoption of a son.”

From this we know the idea of Adoption and in Hindu Law how the idea is discussed.

Why do Hindus need to adopt?

Hindu philosophers say that a man is born with three debts:

1. Debts to rishis (sages),

2. Debt to Gods and

3. Debts to ancestors.

These debts are discharged by giving birth to a male child who studies the Vedas and offers
sacrifice. For the same reason, Son is given great importance in Hindu Law.

In the Hindu religion, it is believed that, a son

1. Saves his ancestors from going to hell called “put” therefore he (Son) is called puttra in
various Indian languages.
 2. The son saves his ancestors by “Panda-dan” [offering funeral cakes and libations of
water] on occasion of “Shraddha” which is a ceremony performed by the son in honour
of a dead ancestor.

3. He continues his father’s bloodline or family

Now, this is very straightforward that for both present life and afterlife a Hindu man requires a
son and that’s the basic philosophy of adoption in Hindu law. Yes, you guessed it right only a son
can be adopted in traditional Hindu law and Bangladesh follows the same as our Hindu personal
law never changed in this regard like India or other countries. Now, let’s know another important
element of adoption in Hindu Law.

First question that may come to once mind is; what would be the legal status of an adopted son
and what would be the consequence of an adoption? Regarding this question scholars of Hindu
law wrote that; Adoption is the civil death of a son in the natural family and legal birth of a son
in the adoptive family. On adoption ties of the son with his old family are severed and he is taken
as being born in the new family, acquiring rights, duties and status in the new family and his ties
with old family end there as if he born in the adopted family.

Adopted Son stands Equal to Natural Son:

"Child" is a part of the term "issue". According to Hindu law, the adopted son has the same status
as the natural son with regard to his adoptive father in both temporal and spiritual concerns. In
terms of inheritance, Hindu law does not distinguish between a natural son and an adopted son;
whether personal law or secular law is applied, the adopted son has the same status as the natural
son. Hindu Dayabhaga Law does not forbid adoption of a surda.

Case Laws:

# Anath Bandhu Guha Vs. Sudhangsu She/chore Dey. 31 DLR (1979) (AD) 312.

In Hindu Law, adoption is a legal act with significant material and spiritual repercussions that is
typically documented. A person is transferred into the family who adopts him through adoption,
leaving the family to which he was born.
# Perumal Vs. Government of Pakistan. 15 DLR (1963) (SC) 58.

Therefore, we can say;

▪ An adopted son is creation of law

▪ An adopted son stats on an equal footing with natural son in the matter of both temporal
an spiritual fact.

Conditions of A Valid Adoption:

Who may or may not be adopted?

▪ Son only

▪ Son can be adopted because son can perform the religious/spiritual aspect of
Hindu law

▪ Not deaf or dumb

▪ He must not be deaf or dumb (for the same previous reason)

▪ Age; Generally before uponoyon

▪ According to Dayabhaga School [A part of /customs/type of practice in Hindu

law that is followed by Hindus of Bangladesh and Bangle, Assam in India], it is
considered 15 years is the age of Uponoyon

▪ The only son cannot be adopted

▪ Where one father has only one son that son cannot be adopted because that would
invalidate the spiritual right of his (son’s) natural father.
 ▪ The boy to be adopted must belong to the same cast, but not necessary that he should
belong to the same sub –cast.

▪ Case Law;
Hindu Society is divided into four castes namely Brahmin, Kshatriya, Vaisya and
Sudra. There might be a question with regard to the validity of adoption between
one caste and another caste. But If such adoption is found to have been taken
place within the broad range of one caste only, such adoption cannot be
questioned on the ground of difference in the sub-caste between the parties
concerned. Kayastha of Bengal is sudra. It is an admitted position in Hindu Law
that there is no bar as such for a “Kayastha” adopting a “Namasudra” both being
“Sudras” as such

# Sudhangshu Shekhar Vs. Anath Bandhu. 28 DLR (1976) 313.

▪ If the adopted father and the adopted son’s natural mother belongs in a relationship where
marriage is prohibited, then that son cannot be adopted.

▪ Example; Sister’s Son (nephew) cannot be adopted.

▪ An orphan cannot be adopted

Who May Adopt?

▪ A man, who is sound mind and already achieved his uponoyon age.

▪ Adopted father must not have any son or son’s son how low soever, whether that son or
son’s son is natural or adopted.

▪ He might be married, unmarried or widower; if he is married his wife’s consent is not

necessary.

▪ Adoption can be done if at the time of adoption the adopted father’s wife is pregnant.

▪ A minor may adopt and give authority to his wife to adopt.

 ▪ Impurity by birth or death of a relation does not validate an adoption.

Can Woman Adopt?

▪ An unmarried woman cannot adopt.

▪ A married woman cannot adopt of herself but can adopt for her husband if the husband
permits her to do so.

▪ A widow can adopt for her husband if he permits her before his death.

Conclusion

Hindu adoption legislation in Bangladesh is subject to a lot of criticism, but no changes have
been made thus far, in part because people are unaware of the specifics of Hindu adoption law. It
is our responsibility to disseminate accurate information to promote change.
References:

1. The Principles of Hindu Law: Sree Mridulkanti Rakhsit

2. Principles of Hindu Law: Sunderlal T. Desai
3. A large body of knowledge texts originating in the ancient Indian
subcontinent/ Religious texts of Hindus
4. Shib Deo V. Ramprasad (1924) 46 ALL 637
5. 31 DLR AD 312; 28 DLR HCD 315