Adoption under Hindu Law | 04 Sep 2023
Introduction
The Hindu Adoptions and Maintenance Act (hereinafter referred as HAMA) was
enacted in 1956 as a part of the Hindu Code Bill to codify and standardize the current
Hindu legal tradition.
This Act dealt specifically with the legal process of adopting children by a Hindu
adult.
Adoption
Adoption means the process through which the adopted child is permanently separated
from his biological parents and becomes the lawful child of the adoptive parents with
all the rights and privileges and responsibilities that are attached to a biological child.
Adoption As Per HAMA,1956
HAMA, 1956
This is the first enactment on the subject of adoption passed by our Parliament.
This Act has no operation beyond the territories of India.
This Act applies to any person who is a Hindu and also applies to Hindus domiciled in
the territories to which the Act extends who are outside the said territories.
Section 6 - Requisites for Adoption
The person who is adopting must have the capacity and the right to adopt.
The person who is giving the child in adoption must have the capacity to give.
The person who is being adopted must be eligible to be adopted.
The adoption must satisfy all the rules given in this Act.
Section 7 - Capacity of a Hindu Male to Adopt a Child
A male Hindu who is willing to adopt a child must fulfil the following conditions-
He must be a major.
He must be of a sound mind (i.e he must not have any mental illnesses).
The consent of the wife is necessary for the valid adoption. An adoption made
without the consent of wife is void.
A Hindu male who wants to adopt a daughter under must be at least 21 years older
than the girl to be adopted.
In Krishna Chandra Sahu v. Pradeep Das, (1982), it was held by Orissa High Court
that the consent of the wife would be mandatory for a valid adoption.
Section 8 - Capacity of a Hindu Female to Adopt a Child
The HAMA also lays down the following conditions for a female wishing to adopt a child:
She must be of legal age.
She must be of a sound mind.
She must be unmarried or if she is married, the husband must give his full consent to
adopting a child.
If the husband is of unsound mind or he has renounced the Hindu faith and the
world or has dissolved the marriage, no consent is required in such case.
If a Hindu female who desire to adopt a boy, she must be at least 21 years older than
the child she wishes to adopt.
Section 9 - Who can Give up a Child for Adoption
Section 9 of the Act tells us about a person’s capability to give his/her child for adoption to
another person or married couple. The capacity has been divided under 3 parties having
rights:
Rights of Father:
If the father is alive, he has the right to give in adoption, but such right will not be
exercised without the consent of the mother unless the mother has
completely and finally renounced the world or has ceased to be a Hindu or
has been declared by the court of competent jurisdiction to be of unsound mind.
Rights of Mother:
The mother can give the child in adoption if the father 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.
Guardian:
If both the parents of the child are dead or the parentage of the child is unknown
or if the child was abandoned, then the guardian of the child may give them up
for adoption with the prior permission of the Court, provided that the Court is
satisfied that such an adoption is for the child’s welfare.
Smt. Prafulla Bala Mukherjee v. Satish Chandra Mukherjee and others
(1998)
It was held in this case that for a valid adoption, not only the person adopting should
be capable of lawfully taking in adoption, but the person giving must be capable of
lawfully giving in adoption and the person adopted must be capable of being lawfully
taken in adoption.
It is necessary that all these three conditions should be satisfied, and it is not sufficient
that only one of them be satisfied.
Section 10 - Who is Capable of Being Adopted
The child must be a Hindu.
The child must not have already been adopted.
The child must be unmarried. However, if a custom to the contrary exists, such an
adoption may take place.
The child must be less than 15 years of age. However, if a custom to the contrary
exists, such an adoption may take place.
Section 16 - Registration of Adoption
It provides for the registration of adoption with Registrar of documents.
If the adoption is registered, the registered instrument duly signed by both the
parties serves as a piece of evidence, but not conclusive proof of the evidence.
Section 17 - Prevention of Payments in Adoption
It restricts the payment of any amount for the adoption of the child because, in
most cases of trafficking, it is the primary stage.
People, after adopting children in exchange for money, indulge them in child
labour, prostitution, theft and many other crimes.
They also pay money in the greed of the property vested to the adopted child.
To prevent this, it is made punishable to give or agree to take the sum of money in
exchange for the child.
If anyone does so, then that person will be punishable with imprisonment
which may extend to six months, or with fine, or with both.
Adoption not to be Cancelled
No parent can cancel the actual adoption or that the child has no right to refuse
adoption and return to his or her biological family.
Adoption cannot be cancelled if a person chooses to adopt and is properly executed.
One cannot go back after they have been adopted properly.
Effects of Valid Adoption
An Adopted child is deemed to be the natural born child of his/her adoptive
father/mother.
All the ties of the adopted child with the original family stand extinguished from the
date of adoption.
The child cannot marry any person whom he/she could not have married prior to
the adoption.
The property vested in the child prior to the adoption shall continue to vest,
subject to the obligations.
The adopted child shall not divest any person in the adoptive family of any estate,
which is vested in him/her before the adoption. (i.e., the adoption of a child does not
affect the rights and the members of the adoptive family).
