Tag: adoption

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

Solo Parenting- Challenges and Accomplishments!

Parenting is not easy and single parenting is tougher as it entails added accountabilities. A single parent has to face continuous newer challenges every day.
A proper schedule if made will make the task much easier.


Here are some common challenges faced by single parents and the ways to overcome them. Read on.

Giving birth and raising a child is always a challenge. People all over the world are buoyed down when faced with the responsibility of parenthood. But when you have your partner by your side you feel a lot confident as you are assured of the presence of emotional support. Single parenthood is a huge challenge in itself as you have to deal with the situation where you have lost your loved one and at the same time, you need to take up the responsibilities of rearing the child and life as a whole. The challenges get multiplied by themselves.

The first challenge is to deal with the family all by yourself, where you need to fulfil the responsibility of both. You need to make all the decisions all by yourself, you need to ensure that all the requirements of your family are met, you need to deal with the overload of tasks that too efficiently, meet your career responsibilities and above all, deal with your emotional overload, not to overlook the emotional requirements of your baby.

For a single parent, these challenges appear in a series, in combination or even alone. Whatever the situation, there is no denying the fact that single parenting is full of challenges. You need to seek out options where you find a solution to deal with these challenges as they can easily lead you to anxiety and depression.

Single Parenting Challenges:

Have a quick look at the common challenges briefly explained.

Scheduling- As mentioned earlier, a single parent is flustered with heaps of responsibilities. They are thus required to juggle them all through a hectic schedule. Keeping afloat with the schedule is in itself a huge challenge.

Balancing– A single parent has to balance work and home all the more. The workplace is a whole new world of professional responsibilities. Then you need to take care of the child, provide them with all that they need, including your time and at the same time teach them to evolve as a disciplinarian by being a friend to them is an added challenge.

Financial– Financial problem is perhaps one of the biggest challenges faced by a single parent. You cannot be a stay at home mom or dad as you need to think of the expenses. Thereby you cannot spend all your time for rearing the child even if you believe that staying with the child throughout his growing up years is important. The challenge magnifies if you are not very well off. It is a tough job to plan your entire expenses and yet have savings through a single paycheck.

Finding childcare support – Since you need to go to work you need to make adequate arrangement for a childminder. The person needs to be reliable as well as competent. It is indeed a challenge to find such a person especially when you do not have a proper support system from your extended family.  

Being there for your child- Apart from juggling with the regular household chores, you must be there when your child needs you. It is a challenge to adjust your schedule and be completely involved with your child’s school activities. Your parenting skills, patience and understanding will constantly be put to test and it is a big challenge to instil discipline in your kids while you have to spend most of your hours outdoors.

Further, you need to ensure that the child does not feel isolated or ignored as it can spell doom for their all-round development. But as the child grows up, your difficulties will fade away with the decrease of certain responsibilities which you can share with the child and as his maturity level develops, he will also act emotional support that a single parent so desperately craves for.

Around the world and especially in deeply patriarchal countries such as India, single — divorced, widowed, unmarried or single by choice — parents, especially women, are judged harshly and stigmatised for their personal, marital and parenting choices.
According to a recently released United Nations report The Progress of the World’s Women 2019-2020: Families in a Changing World, which analyses diverse family structures and their impact on women, ending a marital relationship typically entails far more adverse economic consequences for women than for men. “All too often, women lose access to marital assets, resources, and even child custody” and face societal censure if not ostracism, write the authors of the report.
Despite this spurt in the number of OPHs in India, prompted by numerous factors including meltdown of joint families, increase in the number of nuclear households, social emancipation of women, economic liberalisation, relaxation of divorce laws, among others, social attitudes have been slow to change. Most people are hostile towards single parents, especially women. From financial anxiety to juggling work with child care duties, single moms are under constant pressure to meet societal and their own children’s expectations. Moreover, in deeply misogynistic and gender-insensitive Indian society, it’s not unusual for divorced/widowed single mothers to be propositioned and harassed by men, who believe they are fair game for sexual predators.
“Being a single parent, especially a single mom is a hard slog in India. Though education and financial independence have empowered many women to break free from abusive and unhappy marriages, Indian society doesn’t readily accept single mothers who don’t have strong parental support. Although these attitudes are changing — at least in metropolitan India — where single-parent households are multiplying, single mothers are often judged harshly and labelled headstrong, obstinate and blamed for failed marriages. Being a single mother is emotionally draining and stressful,” says Sushma Ramachandran, a Chennai-based psychotherapist.

A new 21st century phenomenon is single parenting by choice. Increasingly, successful women and men who side-stepped formal marriage, are becoming single parents through adoption or surrogacy. In 2015, the Union government’s Central Adoption Resource Authority (CARA) relaxed its rules to permit unmarried women/men to adopt children. In July 2017, the guidelines were further liberalised to permit single women over 40 years of age to adopt legally with their waiting period shortened by six months — the average waiting period for prospective adoptive parents (PAPs) is two years. However, the rules forbid single males from adopting girl children.

According to CARA data, over the past four years, there’s been a 50 percent increase in the number of single PAPs, especially women tendering adoption applications. In 2015-16, 412 single women registered for adoption with CARA. By end 2017, this number almost doubled to 817. Seventy-five single women adopted children in 2015-16, 93 in 2016-17, 106 in 2017-18 and 121 in 2018-19.

Don’t judge, enable single parents!

Being a single parent is twice the work, twice the stress, and twice the tears, but also twice the hugs, twice the love and twice the pride.