Chapter: ADOPTION

Introduction : In olden days the rise of the adopted son in the estimation of the society
was further accelerated by the Brahmin priests who advocated the institution of
adoption as absolutely necessary for every sonless man’s salvation, both here and in
the world beyond. In Rama Subbaya v. Chenchurammayya, the privy council
observed that the correct view is that the foundation of the doctrine of adoption is the
duty which every Hindu owes to his ancestors to provide for the continuation of the
line and solemnization of the necessary rites. The substitution of a son of the deceased
for spiritual reasons is the essence of the thing and the consequent devolution of
property a mere accessory to it.
Concept and Objects of Adoption under the Hindu Adoption and maintenance Act,
1956
The legislature, while passing this Act, has taken in view only the secular object of
adoption. Under this Act a daughter can also be adopted whereas she can neither
offer funeral cake not can perform the last rites of deceased. A child of a different
caste may be adopted. A person may adopt a child whose mother’s marriage is not
lawful.
The Act does not provide for the performance of any religious ceremonies at the time of
adoption. It prescribes only the ceremonies of giving and taking . This factor also renders
adoption as a secular act.
the Act has now codified the law and has materially modified the law of adoption. The
changes incorporated into the enactment were demanded by progressive section of the Hindu
society; they were opposed by the orthodox section. Now after the enforcement of this Act, An
adoption made in contravention of the provisions of the Act shall be void.
the Act extends to the whole of India except the state of Jammu and Kashmir.
Changes made by the Act-
1. A female also may be adopted(Section 7 and 8).
2. A virgin, divorcee, or widow is entitled to adopt and the wife can also adopt with the consent
of her husband(Section 8).
3. A male during the subsistence of his marriage can adopt only with the consent of his wife or
wives if any (Section 7).
4. The father or the mother has equal right to give a child in adoption but with the consent of
each other(Section 9).
5. The adoptee must be below 15 years of age and unmarried unless the custom permits such
adoption (Section 10).
6. The ceremony of Datta Homam is not essential (Section 11).
7. The theory of ‘relation back’ has been dispensed with and the adopted
child comes into existence from the date of adoption.
8. Adoptive father or mother shall not be deprived of their power to
transfer the property merely by reason of adoption of a child(Section
13).
9. Provision relating to registration and the presumption has been made
(Section 16).
10. If a child of opposite sex is adopted there must be difference of 21
years in the age of the adopter and the adoptee.
11. It is not necessary that the adopter and the adoptee must be of the
same caste . The only requirement is that both must be Hindus.
12. This Act has completely ignored the spiritual aspect and emphasised
on secular aspect of this institution. The powers of Hindu female
have been considerably increased as , without the consent of the wife
neither a child could be adopted nor could be given in adoption.
 Section 5 of the Act lays down that no adoption shall be made after the
commencement of the Act, Except in accordance with the provisions contained in
the chapter of Adoption and any adoption made in contravention of the said
provisions shall be void. the Act is not retrospective in its operation. The
Adoptions which are lawful under the prior law, but are not valid under the act, are
deemed to be valid. All other laws in force up to the date of the passing of this Act
shall cease to have effect if and to the extent they are inconsistent with the
provisions of this Act.
Question: Explain the requirements of valid adoption under the Hindu
Adoption and Maintenance Act, 1956.
Essentials of valid adoption :- section 6 of the Act enumerates the requisites of a
valid adoption. They are :-
i. The person adopting has the capacity and also the right to take in adoption.
(Section 7 and 8)
ii. The person giving in adoption has the capacity to do so;(Section 9)
Who May Adopt:- Section 7and 8 of the Hindu Adoptions and Maintenance Act, 1956,
deal with the person who may adopt a child. Section 7 deals with adoption by a male and
Section 8 deals with adoption by a female. Whether male or female, the person who is
adopting a child must have capacity and also the right to take a child in adoption.
Capacity of a male to take in adoption :- Section 7 lays down the capacity of a male Hindu
to take a child in adoption and puts certain formalities, as will be evident from the section
itself which runs as follows:-
1. Any male Hindu who is of sound mind;
2. Who is not a minor
3. If he has a wife living , he must take consent of his wife unless
i. the wife has completely and finally renounced the world; or
ii. has ceased to be a Hindu or
iii. has been declared by a court of competent jurisdiction to be of unsound
mind.
4. If a person has more than one wife living at the time of adoption, the consent of all
the wives is necessary .
 So if the consent of the wife has not been obtained in such case the adoption
will be invalid in spite of the fact that all the formalities required by law have
been complied with.

Capacity of Female to take in Adoption:- Under the old Hindu Law, the power
of female Hindu to adopt a son was very much restricted. She could not adopt
to herself and could not adopt without the assent of her husband. She had no
right herself but she was deemed to act merely as an agent. A Hindu could
direct his wife to adopt with the consent of a specified person or could direct
her not to adopt except with the consent of a specified person and an
adoption by a wife , without such consent of the specified person was invalid.
A Widow's power to adopt continues till her entire lifetime where-
i. Her husband had died without leaving any son, grandson or a great-grandson;
ii.In case her husband had died leaving a son, but the son had also died leaving
his mother as only heir to him.
Now Under the present Act,
1.A widow gets a right to adopt a child even in the absence of any authority from her decease
husband.
2.An unmarried woman has also has independent right to adopt a child. Under old Hindu law,
no such right was given to an unmarried women.
3.the original section 8 of the Act laid down the conditions in which a Hindu female has the
capacity to take a son or daughter in adoption, if the following condition are fulfilled.
4.Any female Hindu - (a) who is of sound mind, (b) who is not a minor and (c ) who is not
married ,
If married- (a) whose marriage has been dissolved, or (b) whose husband is dead, or (c) has
completely and finally renounced the world, or (d) has ceased to be a Hindu, or (v) has been
declared by a court of competent jurisdiction to be of unsound mind.
Now after the personal laws amendment Act, 2010, substitution to section 8 of the Hindu
Adoptions and Maintenance Act , according to it , any female Hindu who is of sound mind and
is not a minor has the capacity to take a son or daughter in adoption.
 Provided that if she has a husband living, she cannot adopt a son or
daughter except with the consent of her husband unless the husband 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.
Maiden and Divorced:- An unmarried women and a women who has been
divorced, i.e., whose marriage has been dissolved under Section 13 of the
Hindu Marriage Act, can take a child in adoption. Divorced women is
considered as a spinster and such woman , therefore, has all the rights of an
unmarried woman for the purpose of making an adoption. Previous to this Act
a spinster had no right to take a son in adoption.
Adoption by a Widow:- Section 8 recognizes the right of a Hindu widow to
adopt a son or daughter to herself. The effect of adoption by a widow of a son
or daughter not only of the widow but of her deceased husband as well.
Shastric Law provided for an express authority by the husband to the widow
to adopt a child. But it was very difficult to prove the authority, hence the
adoption become invalid.
 Question : Discuss the powers of a male and female Hindu in adoption as
per the Hindu Adoptions and Maintenance Act, 1956.
Right of male and female to adopt- the capacity to take a child in adoption and
right to take a child in adoption are two different aspects. A male or female even
thought has the capacity to take a child in adoption yet he or she may not have the
right to take a child in adoption. But to constitute a valid adoption it is necessary
that the person taking a child in addition must have the capacity as well as the right
to take a child in adoption are discussed in clues (i) to (iv) of Section 11 of the Act.
Section 11 of the Act reads as follows :-
In every adoption the following conditions must be fulfilled:-
(i) If the adoption is of a son, the adoptive father or other 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 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 female, the
adoptive father 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 guardians or under their authority with intent to transfer the child
from the family of its birth or in the case of an abandoned child, whose
parentage is not known, from the place or family where it has been brought up
to the family of its adoption:
In Golak Chandra Rath v. Kratibas, AIR, 1979. the Orissa High Court has held that any
adoption made in derogation to the conditions laid down in Section 11 would be
invalid .
the performance of datta homam shall not be essential to the validity of an
adoption.
Right of Male to adopt:
A Hindu male has the right to take a child in adoption if the following conditions are
fulfilled:-
i. If he takes a son in adoption, he must not have Hindu son , son’s son, son’s son’s
son ( whether legitimate blood relationship or by adoption) living at the tie of
adoption:
ii. If he takes a daughter in adoption , he must not have a Hindu daughter, or a son’s
daughter whether by legitimate blood relationship or by adoption , living at the
time of adoption:
iii. If he takes a daughter in adoption, the adoptive father must be at least twenty one
years older than the person to be adopted.
iv. If he has more than one wife, consent of all the wife's is required, unless they suffer
from any of the disabilities mentioned in the Act.
v. According to Section 16 of the Hindu Marriage Act, 19, any child begotten or
conceived before the decree of nullify shall be deemed to be the legitimate child of
such husband and wife.
Under Section 11(1) of the Hindu Adoption and maintenance Act, 1956, a Hindu
can take a son in adoption only if he has no son whether by legitimate blood
relationship or by adoption .
Right of Female to adopt:
A Hindu female has a right to take child in adoption if the following requirements
are fulfilled:-
i. If she takes a son in adoption she must not have a Hindu son or son’s son or
son’s, son’s son, living at the time of the adoption.
ii. If she takes a daughter in adoption, she must not have a Hindu daughter or a
son’s daughter living at the time of adoption.
iii. if she takes a son in adoption, the adoptive mother must be at least twenty
one years older than the person to be adopted.
A step mother has no right to give away her step-son. A brother could not give
way his brother. Nor could the paternal grand father or any other person.
It was held in one of the cases that, a widow on her remarriage had no right to
give in adoption her son by the first husband.
Who may give in adoption :
Section 9 prescribes the persons capable of giving in adoption: According to it-
1. No person except the father or mother or the guardian of a child shall have the
capacity give the child in adoption.
2. Subject to the provisions of sub-section (4), the father , or mother, if alive, shall
have equal right to give a son or daughter in adoption with the consent of each
other.
3. Where both the father and other 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 a adoption with the
previous permission of the court to any person including the guardian himself.
4. 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.
 the expression father and mother do not include an adoptive father and an
adoptive mother and guardian means a person having the care of person of a child
or of both his person and property and includes-
a). A guardian appointed by the will for the child’s father or mother and
b). A guardian appointed or declared by a Court; and
Court means the City Civil court or a District Court within the local limits of
whose jurisdiction the child to be adopted ordinarily resides.
to sum up ,Accordingly, under Section 9, the following three persons have been
given the right to give a child in adoption and they are:
1. Natural Parents- According to the Section 9(2) as substituted by the Personal
Laws(Amendment ) Act, 2010 the father or the mother, if alive have equal
rights to give a son or daughter in adoption. With consent of each other.
2. Guardian (explained above) the right of the Guardian is restricted one , as the
prior permission of the court for giving the child in adoption is necessary.
Without the previous permission of the court a guardian cannot validly give a
child in adoption.
Who may be adopted under the present Act:
Section 10 of the Act provides the qualifications necessary to make the
child of adoption fit for being taken in adoption. Section 10 of the Act
which reads as follows:
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 not already been adopted;
iii. He or she has not been married, unless there is a custom or usage
applicable to the parties which permits persons who ae 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 complete the age of fifteen years being taken in a
adoption.
 In Atluri Brahmanandam Patil . Shamgonda, AIR, 2011, in this case a
person who was adopted when he was above the age of 15 years under
custom which permitted the adoption , claimed the property of his adoptive
father on the ground that since the adoptive father dies intestate. He being
the adopted child was entitled to the property. Adoption was made through
a registered adoption deed. All formalities complied with according the
Act. The adoption of persons more than 15 years ws allowed in
accordance with a custom prevailing in the Kamma Community of Andhra
Pradesh. The Court accepted the adoption as valid in view of the statutory
exception made in favour of custom to the contrary.
A lunatic can also be adopted under the present law. There is no such
incapacity with such child, which prevents him to be adopted . Under
Section 11 of the Hindu Adoptions and Maintenance Act, there is no
prohibition on the adoption of an orphan child .
 Under Hindu Law , before passing of the Hindu Adoption and Maintenance Act, 1956,
the ceremonies relating to an adoption were:
1. the physical act of giving and receiving with the intent to transfer the boy from one
family to another ;
2. The Datta Homan , i.e is the sacrifice of the burning of clarified butter which is offered
as a sacrifice to fire by way of religious propitiation or oblation. Some Court held it is
essential and some High Courts held that it is not essential before passing of the Act, but
now, after passing of the Act, it is clear that , the Datta Homam is not a must for the
validity of the valid Adoption.
3. Other minor ceremonies.
Ceremonies Under the Present Law- the present Act requires only the ceremony of actual
giving and taking of child in adoption is essential. Law does not prescribe any particular
form . For a valid adoption all that the law requires is that natural parents only shall be
asked by adoptive parents to give their child in adoption and that the child in a adoption
shall be handed over and take over with intent to transfer the child from the family of his
birth to the family of its adoption. The formalities of actual giving and taking of the child
in adoption is so essential that if it could not be proved, the adoption must be invalid.
The right to give a child in adoption cannot be delegated to any person but
the natural parents or guardian may authorise another person to perform
the physical act of giving a child in adoption.
The law does not accept any substitute for the ceremony of actual giving
and taking. Mere expression of consent or the execution of deed of
adoption does not operate as valid adoption.
According to Section 11(VI), the following requisites are necessary to
constitute a valid adoption in the sense of effective transfer of the child
from one family to another:
1. There must be actual giving of the child in adoption by its natural
parents, or in their absence by the guardian.
2. There must be actual taking of the child by the adopter.
3. there must be the intention to transfer the child from the family of its
birth to the family of its adoption.
4. If the giving and taking is not by the parent or the guardian concerned,
it must be under his authority given to somebody else who actually
gives or takes the child in adoption.
On the other hand, there is no requirement of any registered deed of
adoption and if the giving and taking of the child, in adoption is proved,
this itself would be sufficient to indicate a valid adoption.
The adopted son do not forfeit the existing rights but only future claims .
He did not lose his vested rights whether as a heir or coparcener and he was
entitled to retain then property which he received from the family of his
birth before adoption.
Effects and consequences of Adoption under present Law:
5. 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 he
adoption and from such date all the ties of the child in the family of his
or 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
the ownership of such property, including the obligation to maintain relatives
in the family of his or her birth;
(c) The adopted child shall not divest any person of any estate which vested in
him or her before the adoption.
2. Under Section 12 of the Act the doctrine of relation back has been dispensed
with and therefore the adopted child comes into existence in the adoptive
family only from the date of the actual adoption.
thus for an example, , if a widow, who has succeeded to her husband’s
estate of which she had already become absolute owner before the date of
adoption. The widow is thus capable of dealing with the estate as a full and
absolute owner, even after adoption.
The leading case on the point is Sawan ram v. Kalawanti, AIR, 1967, in this case A
dies leaving his widow W, who inherited the property of her deceased as a limited
owner before the Hindu succession act, 1956. in 1954 she gave away a part of the
property to her niece D. the collaterals for A challenged the validity of gift as it
was made by a limited owner without any legal necessity. The trial court decreed
the suit of collaterals and held the gift to be invalid. D went in appeal. While the
appeal was pending W adopted a son S and subsequently W died. The collateral
brought another suit to recover the possession over the property from the hands of
D. The adopted child S later on brought a suit to claim his rights in the gifted
property on the ground that once gift made by her adoptive mother before the
commencement of the Act of 1956., was held to be invalid, his right in the property
revived because from the date of his being taken into adoption, he became the
adopted son not only of adoptive mother but also of her deceased husband, however
he became a member of the joint family and in that capacity his right in the
property unlawfully gifted, became revived.
it can be concluded that the gift, made by the adoptive mother before the act of
adoption made by her, did not vest in the adopted son. Hence it cannot be said that
Question : What is an Adoption ? What is the effect of Adoption on
a) Natural Family b)Adopted Family.
Effect of Adoption on Natural Family and Adopted Family
1. On valid adoption the adopted child ceases to have any right, or be subjected to any
liability or disability as member of the family of his birth, but in spite of the adoption
he or she cannot marry any person from the natural family within the prohibited
degree relationship or Sapinda relationship.
2. If the adopted son has been vested with some property of his or her family of birth,
before the adoption took place, the adoptee shall continue to enjoy that property
and it will not go back t the family of birth, but the property so vested will be liable
for such encumbrances as the property may be liable to, in respect of maintenance
or other charges due to members of that family of birth.
3. Adopted child not to divest any other person- Under this Act, the rule of relation
Back has been abolished. The adoption for all purposes will take effect from the
date , the adoption is made.
4. The child given in adoption cannot have any vested right in the undivided joint family
property of his family of natural birth after adoption.
5. The adoptive child does not divest any person in the adoptive family
of any property vested in such person before adoption .
6. Any property vested in the Widow before the adoption , will not be
divested of any property nor will any partition effected prior to the
adoption be re-opened for purpose of re-adjustment of the joint-family
properties.
The joint family property does not cease to be joint family property when
it passes to the hands of a sole surviving coparcener. If a son is adopted by
the sole surviving coparcener, a new coparcener is inducted into the family
on an adoption made by a widow of a deceased coparcener, an alienation
made by the sole surviving coparcener whether by way of sale, mortgage
or gift would however stand, because the coparcener who is adopted after
the alienation cannot object to alienation made before he was adopted.
Section 14 of the Act Explains the rule to determine as to who is the
adoptive father or adoptive mother of the adoptee . The rules are:
1. Where a Hindu who has a wife living adopts a child , she shall be
deemed to be the adoptive mother.
2. Where an adoption has been made with the consent of more than
one wife the senior most in marriage among them shall be deemed to
be the adoptive mother and the others to be step-mothers.
3. Where a widower or a bachelor adopts a child, any wife whom he
subsequently marries shall be deemed to be the step-mother of the
adopted child.
4. Where a widow or an unmarried woman adopts a child, any husband
whom she maries subsequently shall be deemed to be the adoptive
step father of the adopted child.
Valid adoption not to be cancelled:- A valid adoption made by any person
cannot be cancelled by any of parties to the adoption or by any other person,
nor can the adopted child give up his or her status as such adopted child and
claim rights in the family of his or her birth. An adoption once made is
irrevocable. It is, however, open to the adopted child to give up or modify his
or her rights to properties and inheritance in the adoptive family either before
or after adoption. Same was the view prior to the commencement of this Act
also.
Proof of Adoption:
It has been held by the Court that, there would be a necessary presumption in
favour of the validity of the adoption, if it is made through registered deed,
unless contrary is proved. If contrary is proved, this presumption is
rebuttable. In Dhanno v. Tuhi Ram , AIR 1996 the Punjab and Haryana High
Court had held that where merely a registered adoption deed is produced
without proof of the ceremonies of giving and taking and without proving that
after adoption the adoptee was treated as his son by adopter, there is no valid
adoption.
Prohibition of certain payment: Section 17 prohibits receipt or agreement to
receive or the giving or agreement to make any pecuniary advantage or
payment of any kind in consideration an adoption.

DOCTRINE OF RELATION BACK

According to this doctrine a son adopted by the widow under the authority of
her husband was deemed to have been adopted on the day the husband died.
He was put in the position of posthumous son and all his relations in in the
adoptive family related back to the date of the death of his adoptive father by a
legal fiction, the theory on which this doctrine, however, has application only
when the question relates to succession of the property of the adoptive father.
However this rule has two exceptions, they are;
1. That any lawful alienation effected by a female heir since the death of the
adoptive father and before the date of adoption was binding on the adopted
son.
2. That if the property by inheritance went to a collateral, the adoption
could not divest the property which has vested in the heir of the
collateral.
Now under the present Law , that is the Adoption and Maintenance Act ,
1956, under Section 12 , the doctrine of relation back has been dispensed
with and therefore the adopted child comes into existence in the adoptive
family only from the date of the actual adoption.
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