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Hindu Adoption Law

The idea of adoption is not a modern phenomenon but rather the tradition and practice of adoption have existed for decades. The dictionary definition of the word 'Adoption' is the act of taking and rearing one's child from another's parents. Attitudes and regulations differ significantly among cultures in regards to adoption especially as not all cultures have accepted the term. This practice severs the right of the child in his/her original family and such rights are then transferred to the new family.


The custom and tradition of adoption in India dates back to ancient times. Since its initiation, while the Adoption act stays the same, the intent for which this act is being carried out has changed. In Inder Singh v. Kartar Singh, the High court of Punjab and Haryana observed that there are two objects of adoption:- (1) To secure the performance of one’s funeral rites and (2) To preserve the continuance of one’s lineage. Indian citizens who are Hindus, for adoption are governed by the Hindu Adoption and Maintenance Act, 1956 (HAMA). The HAMA act is not restricted to Hindus only but includes and applies to persons of Buddhist, Jain or Sikh religion.


The HAMA Act provides in detail the essentials, procedures, validity, legality, and illegality of adoptions. Section 5 of the act says that adoption made in contravention with the provisions of this act is void, meaning that neither would it create any rights in the adoptive family nor to the person who is adopted.

Further Section 6 provides the essentials of a valid adoption i.e.:-
1. The Person adopting should have the capacity and right to take in adoption;
2. The person giving in adoption has the capacity;
3. The person adopted is capable of being taken in adoption; and
4. The adoption is made as per the provision of the act.

With regard to the first essential - Any male or female Hindu can adopt if qualified under the act. According to which a Hindu male can adopt a child under the provision of the act if:-

1) He has a domicile in India,

2) He is a minimum of 18 years old and is of a sound mind,

3) He has not renounced the world and

4) He does not cease to be Hindu.

Some other requirements include:- If a Hindu male adopts a female child, there must exist at least 21 years of the age difference between the two and also the adoption must be real and not symbolic. Further, there should be a give and take of a child between respective parties and that if he wishes to adopt a male child he must not already have any Hindu son or Son’s son or Son’s son’s son and likewise if he wishes to adopt a female child he must not have any Hindu Daughter or Son’s daughter.


Now, with regards to adoption by a Hindu woman- She can adopt a child if she is domiciled in India and is either unmarried or a widow or a divorcee.


The apex court has time and again has interpreted the HAMA Act when it comes to the consent provisions under the act. These matters relating to the consent of the spouse arises mainly in the cases where a property with regard to succession or distribution is contested. The Supreme court in Ghisalal v. Dhapubai set aside the rulings of the lower court and said that mere non-denial won't be considered as consent on the part of the wife and that an actual consent is required on the part of the wife for adoption under the HAMA act.


Recently also the Supreme court's two-judge bench upheld the above in the case of M. Vanaja v. M. Sarla Devi where the apex court held that the adoption of a child by a Hindu couple is valid only if there is a proof of such ceremony and consent of the wife is taken under the HAMA act. Clearly, the only law that recognizes adoption is the Hindu Adoptions and Maintenance Act, 1956. This Act was departed in liberalizing way from the earlier statute. But at the same time, there are several loopholes in this Act too like this Act applies only to Hindus, and no such special legislation regulating adoption in any other religion exists. Although the Act has attempted to eliminate gender inequality, it is still not entirely able to do so. The only thing about which one should be cautious is that the infant gets in the right hands. This can be ensured by testing the history of the adopting family, marital relationship of parents, adoption attitude, financial stability and so on.

ABOUT THE AUTHOR:

Lavish Sharma is currently a 3rd Year student from Institute of Law Nirma University.

Editor: Jayant Upadhyay

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