ADOPTION UNDER HINDUS AND LEGAL PROVISIONS
INTRODUCTION
Generally, the laws related to the adoption depend upon personal law of different religion. The adoption of hindus are governed by the Hindu Adoption and Maintenance Act, 1956. This can be the parts of the Hindu Code Bills. It came into force on 21st December 1956. In the case of adoption , the main aim of this Act is to get a child for the childless. This Act contains 30 sections that are divided into IV chapters. This Act provides legal provisions for each adoption and maintenance. Under this Act hindu does not means who follow Hinduism however it additionally includes Jain, Sikh, Buddhist, Vaishnavs, Lingayats and followers of Arya Samaj, Brahmo and Prarthana. This Act is applicable to whole India. This Act contains several provisions under chapter II from section 5 to 17 for the regulation of the adoption of hindus.
MEANING OF ADOPTION
Initially, according to Manusmriti adoption means “taking someone else’s son and raising him as one’s own”. Only adoption of son is allowed because it is considered as only son have the right to do the last funeral rituals of his parents and parents get ‘moksh’ only when they have son. So, adoption of girl is not allowed at that time. But with the change of time and equal status of boy and girl the Hindu Adoption and Maintenance Act, 1956 wider the scope of adoption and using the word ‘child’ instead of ‘son’. Child includes both a son and a daughter. So now, a girl can also be adopted by someone who wants to adopt her under the Hindu Adoption and Maintenance Act, 1956. Under this Act both married couples or single can adopt a child.
PROVISIONS RELATED TO THE ADOPTION
According to section 5 any adoption done in contrary of this Act then that adoption is void and has no legal effect. An adoption is valid only when it fulfils essential conditions given in section 6.
WHEN AN ADOPTION IS VALID
Under this Act a hindu can adopt a child only if he abides by the essential conditions. The conditions for a valid adoption are given in the section 6 which are as follows:-
The adoptive parents have the capacity and right to adopt.
The person who gave up the child for adoption shall have the right to do so.
The person being adopted has the capacity to be taken in adoption.
The adoption is made according to this Act.
If the above mentioned conditions are not fulfilled by a person who wants to adopt a child then the adoption is void and has no legal effects.
M. Vanaja VS. M. Sarla Devi (I)in this case the Supreme Court on 6 March 2020 held that there are two essential conditions which are mandatory for the valid adoption are consent of the wife and the actual ceremony of adoption. In the present case both are not established so the adoption is not valid. The fact of the case is the petitioner claimed that she is the adopted daughter of the respondent and her late husband Narasimhulu Naidu so she claimed property rights but she denied for the same then she filed civil suit for the partition of property. She also contended that she was brought up by respondent and her late husband as a daughter and their name also registered as parents in school and college document and even in government documents. So, on the basis of all these evidences she is entitled for property. But the respondent stated that she brought up her as a daughter but she was not her daughter. So, on the basis of all these arguments and hearing civil court delivered his judgment in the favour of the respondent on relying of section 7 and 11 of the Hindu Adoption and Maintenance Act, 1956 and further held that petitioner was failed in proving the ceremony of adoption.
Now, petitioner filed appeal in High Court but High Court upheld the judgement of Civil Court because there was no other evidence which prove that the actual adoption took place in accordance of the Hindu Adoption and Maintenance Act, 1956. After this petitioner brought her case before the Supreme Court which declare adoption as invalid by referring the section 6, 7 and 11 of the Act.
Bhola & ors. VS. Ramlal & ors.(II)in this case the validity of adoption was challenged. The plaintiff had two wives and he had not taken the consent of one of his wives before adopting. The plaintiff contended that his wife was absconded and could be considered as dead. After hearing the contention the Madras High Court held that the wife of the plaintiff was ran away but not considered as dead unless she had not been heard from the last seven years. The Court further held that the consent of the wife is necessary for valid adoption till she was alive. The court also stated that the consent of wife who converted to some other religion or renounced the world is not necessary for adoption but the consent of living wife is an essential requirement for a hindu male to adopt children under section 7 of the Hindu Adoption and Maintenance Act, 1956.
WHO CAN ADOPT THE CHILD
Both a hindu male or a hindu female can adopt a child. A hindu male is capable for adoption if he meet the requirements given in section 7 and a hindu female adopt a child when she fulfil requirements which are given in section 8.
Under section 7 a hindu male shall adopt a son or a daughter if he is of sound mind and is not a minor and is capable for adoption. If person has a wife or more than one wife then the consent of wife or all wives is necessary for adoption without consent adoption is not valid. Consent of wife is not necessary when she is incapable for giving consent or ceased to be a hindu or completely renounced from the world.
Under section 8 a hindu female can also adopt a son or a daughter if she is of sound mind and not a minor and who is not married, or if she is married then her marriage was dissolved or her husband is dead or completely renounced from world or ceased to be a hindu or of unsound mind declared by the competent court.
WHO IS CAPABLE FOR GIVING A CHILD IN ADOPTION
Under section 9 only the father or mother or guardian of children are capable for giving them in adoption. Under this section father or mother means biological father or mother. It does not include adoptive mother or father.
Under this section guardian means a person who care the child or appointed by the court or appointed by the will of child’s mother or father.
WHO IS CAPABLE OF BEING TAKEN IN ADOPTION
Under section 10 a person is capable of being taken in adoption if following conditions are fulfilled:-
He or she is Hindu.
He or she is not adopted previously.
He or she has not married.
He or she not attained the age of fifteen years.
ADDITIONAL CONDITIONS FOR A VALID ADOPTION
Section 11 provides some other conditions which are necessary for a valid adoption. The conditions are as follows:-
In the case of adoption of son, the adoptive father or mother shall not have the Hindu son, son’s son whether legitimate or illegitimate or adoptive living at the time of the adoption.
In case of adoption of daughter, the adoptive father shall not have Hindu daughter or son’s daughter whether legitimate or illegitimate or adoptive living at the time of adoption.
If adoption of girl is done by the male then adoptive father must be twenty-one years older than the girl that is to be adopted.
If adoption of son is done by the female then adoptive mother must be twenty-one years older than the son that is to be adopted.
Once a child is adopted then it cannot be adopted by one or more persons.
The child that one wants to adopt shall be given up for adoption by their biological parents or guardian by following the guidelines.
In Re: Adoption of Payal @Sharinee Vinay Pathak and his wife Sonika Sahay@ pathak, (III) in this case a petition was filed in which question is raised that whether a Hindu couple which is governed by Hindu Adoptions and Maintenance Act, 1956 who has natural child is eligible to adopt a child of same gender under the provisions of Juvenile Justice Act, 2000. The court held that the Juvenile Justice Act provide adoption of those child who are abandoned and in need of care and protection. The Court further held that the Hindu Adoption Act restricts a person to adopt a child of same sex as the natural child but these two Acts should be read harmoniously. So a child could be adopted by Hindu couple under Juvenile Justice Act if the child completed the requirement given under the Act. In the present case the adoption is allowed and valid because child fulfilled the criteria given under the Juvenile Justice Act, 2000.
EFFECT OF ADOPTION
According to section 12 when a child is adopted then it considered as an own child of adoptive parents for all purposes. Adoptive parent have all the parental rights and obligations upon the adoptive child. Adopted child have all the rights and obligations of a son or a daughter.
RIGHT OF ADOPTIVE PARENTS TO DISPOSE OF THEIR PROPERTIES
According to section 13 an adoptive mother or father have right to dispose of their property by way of will or by transfer or by gift. Adoption cannot affect their rights if there is no existing agreement which is contrary with this between them.
Srinivas Krishnarao Kango VS. Narayan Devji Kango (IV) in this case a petition was filed by an adoptive child for the share in the Joint Hindu Family property. But defendant contended that he was only entitled to the property which was ancestral in nature and not the self acquired property. The court held that where a child was adopted, the effect of adoption is that it creates a legal fiction and child becomes the natural heirs. Where the adoption takes place by a widow then effect of adoption is that the child is eligible for all the rights after the death of the father. The court further held that the effect of adoption is that son is eligible for the share in the properties of his adoptive father. The rule which was followed in this case is that the property which was once vested in some one cannot be divested
DETERMINATION OF ADOPTIVE MOTHER IN CERTAIN CASES
Under section 14(1) if a hindu male adopt a child and his wife is living then she will be deemed as a adoptive mother of that child.
Under sub section 2 if a hindu male has more than one wife and adopt child with the consent of more than one wife then the senior-most wife in marriage shall be deemed as adoptive mother and other wives are the step-mother of child.
Section 14(3) states that if a child is adopted by a widower or a bachelor then any wife with whom he subsequently married shall be deemed as adoptive mother of child.
Section 14(4) states that if a child is adopt by a widow or unmarried woman then her husband with whom she subsequently married shall be deemed as step father of child.
Sawan Ram VS. Kalawati (V)in this case Supreme Court held that if husband adopts a child under the Hindu Adoption and Maintenance Act, 1956 with the consent of his wife then the actual adoption is done by the husband but the adoption is not only for himself but also for his wife. Further court held that similarly if a son is adopted by a Hindu female who is married or her husband is dead or has completely renounced the world or declared by a court to be unsound of mind then the sun which is adopted by Hindu female would be deemed to be the son of her husband .If son is adopted by widow woman then also her late husband is deemed to be the father of adopted child.
CAN A VALID ADOPTION BE CANCELLED
Once a child is validly adopted then here is no option for adoptive mother or father to cancel it. According to section 15 a valid adoption cannot be cancelled by adoptive father or mother or by any other person. Also the adoptive child has no right to renounce his or her status and return to his or her birth family.
PROHIBITION OF PAYMENTS
Under section 17 it is stated that no payment is received or made during he adoption by anyone. No one receive any reward in monetary or non monetary form for adopting a child or for giving a child for adoption.
Under this section if anyone found while making or receiving payment in any form during the process of adoption then he will be liable for imprisonment up to 6 months and fine.
This section is introduced to reduce the child trafficking by prohibiting any kind of payments because child trafficking is increased day by day. So, it is a most important rule to protect the child from being sold.
REFERENCES:-
Civil Appeal no.8814/2010
AIR 1989 MP 198
2010(1) BomCR 434
1954AIR 379
AIR 1967 SC 1761
SUBMITTED BY :- SAKSHI GUPTA