Child Adoption according to the Hindu Law

Introduction

Children are the future of our country. But many children are abandoned and sent to orphanages where a part of them face abuse and exploitation. In many cases it has been evident that such children become victims of human trafficking and even go through sexual harassment. Whereas, part of fortunate cases show some abandoned children are taken in for adoption. Adoption is that the act of agreeing with approval. Adoption may be a legal process that makes a parent child relation between persons not related by blood. An adopted child is entitled to any or all privileges as almost like natural-born child. Adoptive child also has right to inherit. It’s usually called as the legal process of becoming non-biological parent. The adopted son is then taken as being born within the new family and acquires rights, duties and standing there only, and his tie with the old family involves an end.

Every religion has its own laws regarding adoption. There’s no uniform law of adoption. Though adoption is that the legal process of actual giving and taking of a baby, it also forms the topic matter of private laws. Thus, Muslims, Christians, and Parsis don’t have their adoption laws; they approach to the court under The Guardians and Wards Act, 1890. They’ll take the kid under the provisions of the said Act. When child grew up and attain age of majority, he wouldn’t under the requirement of the adoption law the least bit. And this child also doesn’t have right of inheritance over the property of guardians.

Under the laws of The Guardians and Wards Act, 1890, a foreigner can even adopt a toddler. If the guardian wants to require the kid to outside the country, he shall take the court’s permission which process will govern under the adoption process in foreign law. Hindu law, Muslim law and also the Guardians and Wards Act, 1890, are containing three different provisions of adoption.

Hindu Law

The Hindu Law legalizes the child adoption in India. The Hindu Adoption and Maintenance Act, 1956 defines the adoption and legalizes it. The Act directs that the adopted children are equal to the natural child and they have all the rights that the natural children have. There must be no discrimination among the natural and adopted child. They have the right to inherit. Earlier according to the adoption laws any person could not adopt a girl child but after The Hindu Adoption and Maintenance Act, 1956 got commenced female child also got included under the adoption. Adopted child not only creates a relation between children and parents, but also it creates a new family for the adopted child. Also, any girl child adopted under the Hindu law should be treated like a natural child and there must not be any discrimination between a boy and a girl child. 

This Act contains capacity of person to adopt a child and requisites which the child should fulfill for being given in adoption. All the important aspects regarding the procedure of adoption of a child mentioned under the same Act. Adoption under Hindu law includes Budhists, Jains, Sikhs and Hindu religion.

Bal Gangadhar Tilak vs Shri Shriniwas Pandit[1]

In this case the Privy Council observed that adoption among Hindus is not only for having a legal children but it is also a religious rite meant to perform obligations and sacrifices which would allow the soul of the deceased father to pass from Hades to the paradise. 

Amarendra Man Singh Bhramarbar vs Sanatan Singh[2]

In this case the Privy Council observed that the foundation of the Brahmanical doctrine of adoption is a duty which every Hindu owes to his ancestors for the continuance of the generation and the performance of the necessary rites. Adoption is a part of the customs. The burden of proving the validity of adoption falls on the person who claims it under the Hindu Adoption and Maintenance Act, 1956.    

Binapani Samanta vs Sambhu Mondal & Ors

In this case the petitioner filed a petition challenging the defendant who is the probate of the will on the basis that she was the adopted daughter of the deceased and that the probate is fraudulent. But she failed to prove the burden of proof and of the validity of the adoption. It was held that she could not challenge as she failed to prove the validity of probate.

Requisites of valid adoption

 Section 6 of The Hindu Adoption and Maintenance Act, 1956 describes it, the requisites are-

  1. A person who is giving in a child for adoption must have the capacity to do the same.
  2. A person who is given in adoption must be capable for being taken in adoption.
  3. Adoptive father and mother must have the capacity and right to do adopt a child.

Smt. Malati Roy Chowdhury vs Sudhindranath Majumdar And Ors.[3]

In this case, the petitioner filed the case for the right of married women of adoption because according to the HAMA act married women were not allowed to adopt a child. Not even with the consent of her husband thus this case was related to gender discrimination. The court stated for this judgment is “Adoption has to be taken factually or legally by the male in case of marriage, and not by the wife. In other words, the wife cannot adopt a child even with the consent of the husband”. 

Brijendra Singh vs The State of M.P[4]

This case overruled the case of Malti Roy, in this case. It was observed by the court that the case was a big disappointment. In this case, a disabled lady was married to man according to the village custom that was a virgin girl must get married. Her husband left her and so she adopted a son after whole 22 years of her marriage. In the other case, disputes were under the agriculture land ceiling law. She a declared that the appellant was her adopted son. The suit was decreed by the trial court and it was affirmed by the first appellate court. Madhya Pradesh High Court on the second appeal in the court held that, given the provisions of section 8(c) of the Hindu Adoption and Maintenance Act, 1956, the adoption was not valid. The argument by her side that she is leading a life like a divorced woman was not acceptable because there is a great difference between a female Hindu who is divorced and a female who is leading a life as a divorced woman. 

After this case a new Act was established in the favor of married women. The Gender Discrimination Act which is a personal law was amended in the year 2010. It gives right to married woman to adopt a child with husband’s consent but that will not change the fate of a married woman in the position of the disabled, deserted, “divorced-like” lady in this case. 

Capacity of males to take in adoption

Section 7 of The Hindu Adoption and Maintenance Act, 1956 describes it; the man must be of sound mind and must be a major. If the wife of the man is alive then he is not allowed to adopt a child without the consent of his wife. Unless she completely and finally ceased to be Hindu or renounced the world or any competent court has declared her to be incompetent. If a person happens to have more than one wife, he must take consent of all wives. 

Capacity of females to take in adoption

Section 8 of The Hindu Adoption and Maintenance Act, 1956 describes it; the woman must be of sound mind and must be a major. If husband of the woman is alive then she is not allowed to adopt a child without the consent of her husband. Unless he completely and finally ceased to be a Hindu renounced the world or competent court declared him incompetent. Section 8 also gives a widow the right to adopt a son or a daughter for her. The result of this is that for all purposes the child adopted in effect becomes the natural son or daughter not only of the widow but also of her deceased husband as well.

Deen Dayal Vs. Sanjeev Kumar

In this case, the mother’s consent is equally mandatory in giving and taking of a child in adoption. Thus, an adoption, even through, registered, where the child was given in adoption by the natural father but without the consent of the mother was held to be invalid. 

Who may give in adoption?

Section 9 of The Hindu Adoption and Maintenance Act, 1956 describes it, a person is capable of giving in adoption – No individual other than the mother and father of kid could have the authority to give a kid for adoption. The two have equivalent rights to give a kid in adoption. In the case that both the father and mother have passed away, or totally denied the world or authorized court announced them as of unsound mind; the guardian of the kid will have the option to give a youngster in adoption.

Who may be adopted?

Section 10 of The Hindu Adoption and Maintenance Act, 1956 describes it, for valid adoption of a child, he should be Hindu by religion. The child must not have been adopted earlier. He or she should not be married, unless there is a custom which permits a person to get married. He or she should not have completed the age of 15 years unless there is any custom which allows a child to do so.

Kumar Sursen vs The State of Bihar[5]

In this case, the issue of the adoption of a Muslim child by Hindu parents was brought up before the court. The child was supposedly brought up by Hindu parents since a very tender age and they treated him like their own son. The court, however, denied to give him the status of an ‘adopted child’ because of the specified provision of section 10(i)[6] of the Act.

Age difference

There must be an age gap of 21 years or more between the child and the parent. In case adoption is by a male and child getting adopted is female, the adoptive father must be at least twenty one year older than the child. And in case the adoption is by a female and the child getting adopted is male, the adoptive mother must be at least twenty one year older than the child.

Other provision like the ceremony of Datta Homam isn’t compulsory (section 11), adoptive father or mother shall not be bereft of their power to transfer the property merely by reason of adoption of a kid (section 13), etc. is additionally important.

Uma Prasad vs Smt. Padmawati And Ors.[7]

In this case, the claim of an adopted son on properties was challenged on the grounds that the boy was above 15 when he was adopted. And that the adoption was invalid. However, the parties, Agarwals by caste, succeeded in proving the exception that they were governed by ancient customs and usage, which allowed the adoption of a boy over the age of 15. The adoption was held to be valid.   


[1] (1915) 17 BOMLR 527

[2] (1933) 35 BOMLR 859

[3] AIR 2007 Cal 4, (2007) 1 CALLT 323 H

[4] (2016) 10 SCC 220

[5] AIR 2008 Pat 24

[6] 10. Persons who may be adopted.—No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:—

(i) he or she is a Hindu;

[7] 1999 (2) MPLJ 502