View's on Adoption

(I) Capacity of a male Hindu to Adopt: - according to section

7, a major Hindu male of sound mind can adopt a son or daughter, whether he is a bachelor, widower, divorcee or married Hindu male it is obligatory to obtain the consent of his wife. In case he has more than one wife, consent of all the wives is necessary. If consent of a wife living with the husband is taken but the consent of a wife living separately is not taken, the adoption will be void. He shall not adopt except with the consent of his wife unless the wife I) has completely and finally renounced the worked, or (ii) has ceased to be a Hindu, or (iii) has been declared by a court of competent jurisdiction to be of unsound mind. (ii) Capacity of female Hindu to Adopt:-

According to section 8, a maiden, married or a widow can adopt a son or daughter. So, any female Hindu (a) who is of sound mind (b) who is not a minor, and (c) who is not married of if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the worked has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, can take a son or a daughter in adoption. (iii) Restrictive conditions of Adoptions:-

If a person has capacity to adopt it is not necessary that he has also the right to make an adoption. Accordingly section II of the said Act deals wilt certain restrictive conditions which must be obeyed. These conditions are:

(a)

If a Hindu wants to adopt a son, he must not have a Hindu son, son’s son or son’s son’s son. Son, or son’s

or son or son’s son’s son may be by legitimate birth or by adoption. (b) If a Hindu wants to adopt a daughter it is necessary that he must not have h Hindu daughter, or a son’s

daughter(whether by legitimate blood relationship or by a adoption) living at the time of adoption; (c)

Two persons cannot adopt the same child.

(d) If a Hindu wants to adopt a child of the opposite sex, he or she must be older to the child by at least 21 years. A violation of this requirement renders the adoption void. However,

these

restrictive

conditions

were

challenged in Sandhya Supriya Kulkarni v. Union of India, to relax these conditions as personal laws do not fall within the ambit of part III of the constitution. (B) Who may give in Adoption?

Section 9 of the Hindus Adoption and maintenance Act, 1956 prescribes the capacity of persons, who could give the child in adoption to another person. Only three persons are capable of giving in a child in adoption viz., the father, the mother and guardian of the child. (i)

Capacity of father to give in Adoption:-

Now father can give the child in adoption only with the consent of the mother of the child. The consent

of the mother maybe implied but the consent must be free consent. The expression mother in the present context means natural mother and does not include an adoption mother or step mother. But where the mother and does not include an adoption mother or step mother. But where the mother has completely and finally renounced the world or has ceased to be Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, father can give his children even without her consent. The expression father does not include step father, adoptive father or putative father of an illegitimate child. II) Capacity of Mother to give in Adoption: - the

mother has also the right to give the child in adoption. But so long as the father is alive and capable of giving a child in adoption where the father is dead or has renounced worked and has entered to be Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, mother may give the child in adoption. The expression mother does not include adoptive mother or step mother and therefore a step mother or adoptive mother has no capacity to give the child ion adoption. But it seems that a mother on conversion to another religion will not lose her right to give the child in adoption, sinceS.9(4) does

not empower a guardian to give the child in adoption in case the parent has ceased to be as Hindu , Mother also does not lode her right of giving the child in adoption on divorce. III) Capacity of the Guardian to give in Adoption : -

after the father and the mother, guardian has the power to give the child in adoption. In 1962, the Hindu Adoptions and Maintenance Act, 1956 was amended and a guardian was authorised for the first time to give his/her ward in adoption even to himself/herself if he so desired. Thus, where both the father and mother are dead or have completely and

finally

renounced

the

world

or

have

abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself. the term ‘guardian’ includes defacto guardian,

testamentary guardian and a guardian appointed or declared by a court of law. The step father, step mother and putative father of an illegitimate child may give the child in adoption in the capacity of the guardian of the child while in the capacity of father and mother; they do not have such a right.

iv) Welfare of the child : - Before granting

permission the court should be satisfied that the adoption is for the welfare of the child. After giving due consideration to the wishes of the child, in the light of the age and understanding of the child and after making sure that the applicant has not received or agreed to receive any payment or the adoption except such as the court may sanction. Since the acceptance of any payment or reward in consideration of any adoption is punishable according to section 17 of the Hindu Adoptions and Maintenance Act, 1956. It may be presumed that the court will sanction only such payments as are necessary for the welfare of the child. The punishment provision also suggests that the validity of an adoption will not be affected by the acceptance of money or reward as consideration for the adoption. The provision for punishment constitutes a check on undesirable practices which could develop into trafficking in human beings under cover of adoption. (c) Who may be adopted?

Section

10

of

the

Hindu

Adoptions

and

Maintenance Act, 1956 permits the adoption of males as well as females but no person is capable of being taken in adoption unless the following conditions are fulfilled namely-

I.

He or she is a Hindus; child needn’t be of the

same case or sub-caste as the adoptive parents; II.

He or has not already been adopted; readoption is strictly prohi8bited. But if the firs adoption is invalid, the child may be given in adoption. Thus, adoption of the same child twice is not permitted.

III.

He or she has not been married unless, there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;

IV.

He or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parities which permits persons who have completed the age of fifteen years being taken in adoption.

Conditions (iii) and (IV) may be waived if the custom or usage applicable to the parties permits the adoption of married persons or of those who have completed the age of fifteen years. A person cannot be adopted simultaneously by two or more persons. The Hindu Adoptions and Maintenance Act, 1956 permits adoption of illegitimate child and of daughter and of only son and one daughter. D) Adoption procedure and formalities

The only ceremonial procedure at present under the Hindu Adoption and Maintenance Act is the act of actual giving and taking of the child by the parties concerned. The child must be actually given and taken in adoption with intent to transfer the child from the family of its birth to the family of its adoption13. In the case of an abandoned, orphan and foundling where he or she is being brought up to the family of its adoption. The physical act of giving and taking the child is absolutely necessary for the validity of Adoption. 4.2

LEGAL EFFECTS OF ADOPTION: Section 12 of the Hindu Adoption and Maintenance Act, 1956 enunciates the effect of a valid adoption. The main effect of an adoption is the transplantation of the adopted child from the family of his adoption. This section lays down that the adoption takes effects from the date of adoption. Adoption takes effect in the following circumstances.

(i)

Parental Rights: - An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purpose with effect from the date of adoption, and from such date all the ties of the

child in family of his or her birth shall be deemed to be served and replaced by those created by adoption in the adoptive family. An adoption confers upon the adopted the same rights and privileges in the family of the adopter as the legitimate natural born child for all purpose with effect from adoption.14

In case a single person adopts a child, any subsequently married spouse will be the adoptive father of the child. And where a widow adopts a child; the deceased husband of the widow will be the adoptive father of the child. The Supreme Court confirmed

the

above

view

in

Sitabai

V.

Ramchandra.15 (ii)

Restrictions on Marriage: - The adopted child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth. Similarly, the adopted son or daughter cannot marry its adoptive parents or other relations in the adoptive family whom the child could not have married, if had born in the adoptive family. Thus, the adoptee is to observe prohibited degrees both in the adoptive family as well as in the natural family. This provision seems to be satisfactory and in consonance with the

position of a natural born child in the adoptive family. (iii)

Inheritance: - On valid adoption an adopted child will inherit in the adoptive family like a natural born son. He or she is entitled to share equally with the natural born children of the adoptive parents. The adoptive child shall not divest any person of any estate which vested in him or her before the adoption. This clause has been reference to the property vested in some person in the adoptive family prior to adoption. The ‘doctrine of relation back’ existing under the old law has been modified.

Now the adoptee is not deemed to be in insistence at the death of the deceased husband of the adopting widow, at least for the purposes of succession. Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will. The expression “subject to any agreement to the country” is very important. These words indicate

that any agreement made by the adoptive father or mother restricting or curtailing his or her power to dispose of his or her property is valid and binding. Such an agreement may be made between the adopter and the natural parents or the guardian.

(iv)

Cancellation of Adoption: - A valid adoption once made cannot be cancelled by the adoptive father or mother or any other person. Nor can the adopted boy or girl renounce his or her status as such and return to the family of his or her birth. According to section 16 the Supreme Court has held that if a customary

adoption

made

prior

to

the

commencement of the Act was revocable under that custom, then revocation is valid even after the commencement of the Act. (v)

Registration of Adoption: - Registration of adoption is not obligatory though parties are free to enter into a registration deed. However, if the person giving and the person taking in adoption have recorded the fact of adoption and have got it registered, then unless otherwise provided, the presumption is that the adoption has been made in compliance with the provision of the Act according to section 16 of the Hindu Adoptions and Maintenance Act, 1956.

(vi)

Consideration for Adoption:- Any consideration in the form of payment or reward for adoption is strictly prohibited by the Hindu Adoptions and Maintenance Act, 1956. The Act provides that no person shall receive any payment or other reward in consideration of the adoption of any person and no person shall make or give or agree to make or

give to any other person any payment or reward the receipt or which is prohibited. Any agreement to give consideration for adoption is against public policy as amoounti9on to trafficking in children. Any such agreement is illegal aned cnnot be enforced through the courts. Rather giving and receiving of consideration has been made

a

penal

offence

punishable

with

imprisonment which may extend to six months or with fine or with both. But prosecution for such and offence cannot be initiated without the previous sanction of the state government. INSTANCES OF OTHER LEGISLITIONS: Beside Hindu Adoptions and Maintenance Act, 1956, there is some other legislation which deals with adoption of children in India. As under the Guardians and wards Act, 1890 other communities Muslims, Christians and Parsees can adopt a child through the Act only confers guardianship on the persons taking the child in adoption. The Hindu Minority and Guardianship Act, 1956 declares about the natural guardian (the adopted father and after him the adoptive) of an adopted son. Recently the Juvenile Justice (care and protection) of children Act, 2000 also deals with the process of rehabilitation and social reintegration of children through adoption. However it is found by the

researcher that in India there is no uniform law of adoption that is applicable to all Indians. TO SUM UP An adoption can be made3 “by or to a Hindu” only in accordance with the provisions of Hindu Adoptions and Maintenance Act, 1956 and any adoption made on contravention there of shall be void . The present Act requires only the ceremony of actual giving and taking the child adoption as will be clear from section 11(iv) of the Act Registration of adoption is not compulsory. Revocation of adoption is not possible under the Act. After adoption, the adopted child is deemed to have merged with the family of the adoptive parents after severing all his or her relation with the natural family and he requires all the rights and privileges with respect to marriage, inheritance, partition in the adoptive family. He is divested of all the rights in the natural family from the date of adoption. NOTES AND REFERENCES: 1) Derrett.introduction to modern Hindu Law, Oxford University press, 1963 1st Ed: P. 92 2) Sawan Ram V. Mst.Kalawanti and others, 1967, SC 1761 3) Mul Chand V.Amrit Bai ILR (1980) MP838 4) Naidu V.Naidu, 1970 SC 1673

5) Proviso to section 7 6) Bholooram V. Ramlal, 1989 MP 198 7) Section1 (VI); Vithal Ausabai, 1977 Bom 298 8) Clauses (iii) and (IV) of seciton11 9)

Air

1998

Bom

.228

10) the Hindu Adoption and Maintenance Act, 1956, section9 (2) 11)

Id.,

section

9

(3)

12) Id., section 9 (4) 13) Id., section 11 (VI) 14) Kesharpal vs. State of Mah. 1981 Bom 115 15) 1970 SC 343. See also Sawan Ram V. Kalawanti, 1967 SC 1761.