ADOPTION under the Hindu Adoptions &

Maintenance Act, 1956: An understanding of the

Hindu personal law
 Traditionally…..

• The Hindu jurisprudence always

provided for adoption dattak for the
purpose of spiritual fulfilment.

• To have a son was considered a must

for every Hindu.
 HAMA, 1956- Codified Hindu Law

• After independence, as a part of

modernizing and codifying Hindu Law, the
HAMA 1956 was passed.

• The Act reflects the principles of equality

and social justice by removing several
gender based discriminatory provisions.
 HAMA
The basic structure
For a systematic understanding of the HAMA provisions w.r.t
Adoption- it could be structurally divided into three parts: -

Capacit
y to be
adopted

Ca
a cit pa
p y t cit
C a y to “t a o
e-
iv
“ g fo r in” ke-
A d f or
in” optio op
ad n n tio
 Capacity to Adopt- Some common
requirements under HAMA

• Person should be a major

• Person should be of sound mind
• Person should be a Hindu
 Capacity to Adopt- Male
• Any adult male Hindu of sound mind may adopt a
child.
• If he is married, then he needs to take his wife’s
consent.
• Such consent is not required if
 the wife is of unsound mind; or
 has renounced the world; or
 has ceased to be a Hindu by conversion
 Capacity to Adopt- Male
• If a person has more than 1 wife at the time of
adoption, the consent of all of them is
necessary, unless they are suffering from any of
the disabilities mentioned above.
• Apart from this, a male who is major can also
adopt if he is bachelor, widower or divorced.
 Capacity to Adopt- Female
• Likewise, a female adult Hindu of sound mind
may also adopt a child under the following
situations, viz she is
 un-married
 divorced
 widowed, or
 her husband suffers from certain disabilities viz, he
has:
ceased to be a Hindu
has renounced the world
has been declared to be of unsound mind by a court
 Capacity to give in adoption
• If the father is alive, then he alone can give in adoption,
though the mother’s consent is required;
• If the father is not alive or suffers from any of the legal
disabilities then the mother has a right to give the child
in adoption;
• Where both parents are dead or legally incompetent to
give in adoption, then in that case, the guardian of the
child can; with the previous permission of the Court- to
any person including himself.
 Capacity to give in adoption
• Before granting such permission the court
has to satisfy that:
(i) the adoption is for the welfare of the child;
(ii) the child’s wishes have been ascertained;
(iii) there is no financial consideration in the
transaction.
 Persons who may be adopted
• Sec: 10- Person should be a Hindu and normally
‘below the age of 15’ and should be ‘unmarried’,
unless there is a custom or usage applicable to the
parties which permits adoption of those who have
completed the age of 15 or those who are married.
• He or she should not have already been adopted.
 - Other conditions -
• A person who has a Hindu son, son’s son, or son’s
son’s son- either by blood or adoption cannot
adopt a son;
• Similarly a person who has a Hindu daughter, or
son’s daughter cannot adopt a daughter.
• In case the adopter and the adoptee belong to the
opposite gender, the Act requires an age difference
of at least 21 years.
 - Vitality of this provision -
• Hanmant Laxman Salunke v. Shrirang Narayan
Kanse, AIR 2006 Bom 123
The issue involved here was as to the validity of an
adoption where the adoptee was over 15 years and
was married and the age difference between the
adoptive mother and the son was less than 21
years.
 - Other capacities -
• Furthermore, the same child may not be adopted
simultaneously by 2 or more persons;
• The Act does not require any formal ceremony
like ‘dutta-homam’.
• The only requirement is ‘the actual giving and
taking’ of the child with the intention to transfer
the child from the family of its birth to the family
who adopts.
 Factum of Adoption
• Though the law does not prescribe too many
formalities for Adoption yet, some ceremony of
‘giving & taking’ of the child needs to be
established in support of a valid adoption.

Nilima Mukherjee v. Kanta Bhushan Ghosh

AIR 2001 SC 2725
-Multiple adoption not permissible -

• Sandhya v. Union of India

AIR 1998 Bom 228
Should the adoption law permit adoption of
more than 1 child of the same gender?
Is the provision prohibiting this ultra vires
Arts 14 & 21 of the Constitution?
 - Sandhya v. Union of India -

The court held:

“The act with its mythological and secular mission has
stood the test of time for around four decades and
has conveniently withstood the assault as attempted
from time to time. We, therefore, refrain from
examining the validity of the impugned provisions
on the touchstone of Arts.14 & 21.”
 - Effect of Adoption -
• Upon adoption, the adoptive child severs all
his connections with the natural family, and
becomes part and parcel of the adoptive
family. All rights and obligations of a
natural born child of the family fall on him.

Khazan Singh v. Union of India

AIR 1980 Del 60
 Exceptions to the effect of adoption
• However, there are 3 exceptions to this:
the child could not marry any person whom he or she
could not have married had he/she not taken into
adoption;
any property vested in the adopted child before
adoption continues to vest in him, subject to the
obligation attaching with the ownership of the property;
the adoptive child cannot divest any person of any estate
which vested in him or her before adoption.
 Sec. 13
• While the adopted child gets property rights
in his new family, an adoption does not
deprive the father or mother of the power to
dispose off his or her property by transfer
inter vivos or by will unless there is an
agreement to the contrary.
 - Adoptive & Step parents -
• Where a Hindu who has a wife living adopts a child, she
is deemed to be the adoptive mother.

• Where adoption has been made with the consent of more

than 1 wife, the senior most shall be the adoptive mother,
the others are step mothers.

• 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 child.

• Where a widow or an unmarried woman adopts a child

and husband she marries subsequently shall be deemed
to be the step father of the child.
 - Other important aspects -
• Valid adoption cannot be cancelled
• Presumption as to registered documents
relating to adoption
Ranjit Singh Dhillon v. Punjab School
Education Board, AIR 2004 P&H 382
- Position in other communities -
• HAMA is the only personal law on adoption.
There is no other law governing other religions or
communities.
• In Parsis, there is a customary form of adoption
prevalent known as ‘Palak’.
• Under this custom, the widow of the childless
Parsi can adopt a child on the 4th day of her
husband’s death to perform certain annual
religious ceremonies. The child acquires no
property rights.