University Institute of Legal

Studies
B.B.A. LL.B/B.Com. LL.B.

Adoption under Hindu Adoption and

DISCOVER . LEARN . EMPOWER
Maintenance Act, 1956
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• In the case of Sarabjeet kabir v. Gurumal Kaur, AIR 2009 NOC 889 (P
& H), the Court upheld that if adoption taken by the husband without
the consent of the wife, that adoption will be illegal.
• In Krishna Chandra Sahu v. Pradeep Das, AIR 1982 Orissa 114, the
Court held that where the above three disabilities of wife have not
been established the consent of such wife would be mandatory for a
valid adoption. If the consent of wife is not established, the Court will
declare the Adoption null and void

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Capacity of female to take in Adoption
• Any female Hindu
• who is of sound mind
• who is not a minor
• Consent of Husband if Married
• No Consent required in case of
• 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
• Amended by Act 30 of 2010
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 Who may give in adoption
• Father
Not without consent of mother
Unless mother has renounced the world,
Ceased to be Hindu
Unsound mind
• Mother
Not without consent of Father unless
Renounced the world
Ceased to be Hindu
Unsound mind
• Guardian
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 Guardian may also give
• if both father and mother
Has renounced the world; or
Dead; or
Abandoned child; or
Declared unsound mind; or
• Parentage of child is unknown
• With the prior permission of the court only.
(court means city civil court or district court in whose local jurisdiction child ordinarily
resides)
• May give to any person including himself.
• **Mother and father does not include adoptive mother and father.
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 Guardian includes
• An person having care of
• Person of the minor or
• Person and property of the minor
• De-facto guardian
• Testamentary guardian (guardian appointed by will)
• De-jure guardian (guardian appointed by court)

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 Considerations for court before granting
permission
• Welfare of the child
• Wishes of the child having regard to age and understanding of the child
• There must be no consideration or reward given or taken

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 Person who may be adopted
• Child must be Hindu
• Must not been already adopted
• Has not been married (unless custom or usages allow so)
• Has not completed the age of 15 years of age (unless custom and
usages allow)
• It must be proved that custom is a valid custom of community
(Nemichand Shantilal Patni vs. basantabai.

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 Effects of Adoption
• With effect from date of adoption, for the all the purposes
• Severe the ties with family of birth
• All the relationships are replaced by adoptive family
• Exceptions
• For the determining prohibited degree relationships and Spinda
relationships, relationships in both the families has to be counted
• Cannot be divested from any thing vested in family of birth before
adoption
• Cannot divest anyone in adoptive family from any vestation from
adoption
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 Doctrine of Relation Back
• Applicable before codified law
• When a widow adopts a son the adoption, the husband of widow
deemed to be father of adoptive son from the date of death of
husband, not from date of adoption
• Doctrine ceased to operate after enactment of section 12.
• Sawan vs. Kalavati case (important)

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THANK YOU

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