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Pre-requisites and effects of adoption under The Hindu Adoptions and Maintenance Act,1956

Abstract

Adoption is a legal process that creates a parent child relation between persons not related by blood. An adopted child is entitled to all privileges as similar to natural-born child. Adoptive child also has right to inherit. It is usually referred to as the legal process of becoming non-biological parent. Adoption is the act of accepting with approval. The adopted son is then taken as being born in the new family and acquires rights, duties and status there only, and his tie with the old family comes to an end.

This article will identify the concept of adoption, evolution of adoption in ancient time and in 19th century, child adoption laws in India – Acts, enactments, ruling and decisions, and adoption under different religions in India.

This paper will mainly emphasis on the laws of adoption under Hindu law. It will also emphasis on the Hindu Adoption and Maintenance Act, 1956, Guardianship and Wards Act, 1980, and Juvenile Justice (care and protection of children) Act, 2000.

Keywords- Legality of Adoption, constitutionality, privileges, pre-requisites, effects

Introduction

Children are considered as a country’s future. Many children are abandoned in orphanages and many of them face severe exploitation. In some cases, children become victims of human trafficking and sexual harassment. Whereas, as a fortunate case some abandoned children are taken in the process of adoption. Adoption process is simply a process of giving new life to an adoptive child. It is a noble cause which brings happiness in the adoptive child’s life.

“Every child has a right to have a family” and there is no better measure for parentless and homeless children than adoption. Adoption in India is carried out under different Acts. In India, adoption of children by Hindu adoptive parents is governed by the Hindu Adoption and Maintenance Act, 1956. This legislation was enacted to provide all the rights, privileges and responsibilities that are attached to the relationship of the adopted children similar to biological child. Manu defines an adoptive son as follows- “a son equal in caste and affectionately disposed whom his mother or father (or both) give with water at the time of calamity, is called Dattrima son”.

According to the earlier mode of adoption only son can be adopted. Hindu mythology believes that only son could be adopted for the continuation of family lineage and for the performance of one’s funeral rites. Even in Dharmasastras only son is qualified for an adoption. Traditionally a child was adopted for spiritual and temporal purpose and now adoption is also done to satisfy the emotional and parental instinct of adopters. Whereas, according to new laws of adoption in Hindu law a girl child can also be adopted. Under Hindu Adoption and Maintenance Act, 1956 a daughter can also be adopted whereas as she can neither offer funeral cake nor can perform last rites of deceased. A child of a different caste may be adopted. A person may adopt a child with whose mother’s marriage is not lawful.

There were some ceremonies which were required to performed at the time of adoption in earlier era and that ceremonies were Datta Homam and the physical act of giving and receiving with intent to transfer the boy from one family to another. Datta Homam is the process of sacrifice of burning of the clarified butter, which is offered as a sacrifice to fire by way of religious propitiation or oblation. According to Madras and Bombay High Courts this ceremony was essential but according to the judgment given by Allahabad High Court Datta Homam was not necessary among Brahmins. Though, this practice of datta homam is, under the present Act, not essential for an adoption made by any class of Hindus, Jains, Buddhists and Sikhs. Adoption laws of Hindu law deal under Hindu Adoption and Maintenance Act, 1956, and Guardianship and Wards Act, 1980. According to certain provisions of Juvenile justice (care and protection of children) Act, 2015, child welfare committee can legally declare an orphan, abandoned and surrendered child free for adoption and this Act also allows children up to the age of 18 to be adopted.  This article will deal with detailed explanation of these three all acts.

Research Methodology

This paper is based on secondary resources, like government reports and journals, various books related to the topic, research papers and articles. Also, analysis of the cases and judgment of the Supreme Court and High Courts, and material from constitutional articles and Acts have been used for in depth legal research.

Review of Literature

There is extensive evidence that early adverse experiences affect psychological and neurobiological development in looked-after and adopted children. There is also evidence that some looked-after and adopted children show remarkable resilience in the face of adversity; intervention research provides evidence of the ability to reduce risks and promote positive outcomes in this population. The intervention studies have revealed not only the potential for improved behavioral trajectories, but also the plasticity of neurobiological systems affected by early stress.

Meaning of Adoption

The word adoption is derived from the old French word Adopt are which means to choose for oneself. Adoption is the legal process of giving and taking of child to non biological parent. It is a process that creates a parent child relation between persons not related by blood. The adopted son is then taken as being born in the new family and acquires rights, duties and status there only, and his tie with the old family comes to an end.

Adoption established ties of the son with his old family are severed and he is taken being born in the new family, acquiring rights, duties and status in the new family. It is simply a transplantation of a son from the family where he was born, to another family where he is given by the natural parents by way of gift. The adopted son is acquiring rights, duties and status in the new family where he was given by his natural family, and his tie with same family comes to an end.

Earlier concept of adoption is very much different from the early texts regarding adoption. For example, Manu further stated that ‘An adopted son shall never take family name and the estate of his natural father- the funeral cakes follow the family and the estate- the funeral offering of him who gives the son in adoption cease as far as that son is concerned’. Whereas, the new concept of adoption mentioned under Hindu adoption and maintenance Act, 1956, is different from the old one. It stated that adopted child is entitled to all rights and duties in his new non biological family as similar to natural child of that family. According to the new law for the child given in adoption, there is a complete substitution of child from the family of birth to the adopter’s family. All such rights and privileges to which he or she is entitled in the family of his or her birth cease to exist on being given into adoption and such rights and privileges accrue to him or her in the adopter’s family. He or she is deemed to be born in the adopter’s family on the date of his or her being actually taken into adoption and the adoptive father or mother is treated as real father or mother.

“No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status, and return to his/her natural family”.

Certain people are capable of adopting a child and some are not capable of doing so. Both male and female can adopt a child but there should be of certain age difference between the child and adopted father or mother. If the adoption is by a male and the person to be adopted is a female, the adopted parent is at least twenty-one years older than the person to be adopted. And if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted. Another important point regarding adoption is that same child may not be adopted simultaneously by two or more persons.

Adoption under Hindu Law

Adoption refers transplantation of a male child from the family in which he is born to another family where he is given by the natural parents by way of gift. The adopted male child is then taken as being born in the new family and acquires rights duties and status and his bond with the old family comes to an end. Under Hindu Adoption and Maintenance Act 1956, a daughter could also be adopted where as she can neither offer funeral cake nor can perform last rites of deceased but she can only continue the family line of the adoptive family.

The objectives of adoption:

(i)To get old-age protection by the adopted child.

(ii)To perpetuate family name and fame.

(iv)To keep secured the family property.

(v)To solemnize of last rites and rituals of parents.

Requisites conditions of adoption from orphanage institution

You can adopt if:

  1. You and your spouse are below 45 years of age and your composite age does not exceed 90 years. If beyond 45, you will be required to adopt an older child proportionately to the number of years in excess of 45. However, in no case the age of prospective adoptive parents (PAP) should exceed 55 years.
  2. Adoptive parents must be financially stable and must have reasonable regular source of income.
  3. They must be physically fit and mentally sound to rear up a child.
  4. They must have a genuine motivation to adopt a child.

Legal provisions:

We believe “Every child has a right to a family” and there is no better a rehabilitation measure for parentless and homeless children than adoption. Adoption is carried out in India under two different Acts viz. The Hindu Adoption and Maintenance Act (HAMA) 1956 and the Guardians and Wards Act (GAWA) 1890. HAMA is applicable to persons who are Hindu by religion or any of its forms or development including Buddhist, Jain, Sikh, Brahmo Prathna, Arya Samaj etc.

Under HAMA you can adopt a child of each sex but no two children of the same sex which means if you have a son, you can adopt only a female child and vice-versa. Non-Hindu persons such as Muslims, Christians, Paris and Jews etc. who are governed by their own effected personal laws come under GAWA. Now a third Act has come into force besides HAMA and GAWA in the form of Juvenile Justice (care and protection of children) Act 2000 under which adoption can also be effected.

Why Legal Adoption:

Legal adoption is irrevocable and provides an extended security ring for the adopted child. It ensures the status of the child in the adoptive family. A legally adopted child can enforce ail his/her rights in the Court of Law. On the contrary, informal adoptions do not carry any legal sanction and are gross violation of the law of the land. As per Supreme Court of India Directives, specific guidelines have been laid down by the central Adoption Resource Authority, the apex controlling body in matter relating to adoption in India under the Ministry of Women and Child Development for legal adoption of Indian Children.

Process of Legal Adoption:

Only legally free children (having no claimants) can be placed in adoption. Once a child becomes legally free, the process of identifying a suitable family for placement of the child begins. PAPs need to prepare the required documents following which a home visit is conducted to assess their suitability for parenting a child. When documents are complete in all respect the PAPs are invited to see the child and can take the child for medical test.

When the PAPs select a child, they can take the child for medical test. When the PAPs select a child, they can take the child with them by submitting all the required documents and signing a foster care agreement pending the finalization of their adoption case in the court of law. A miscellaneous case is then filed in the appropriate court. Documents are sent to the scrutiny committee by the court for verification when the scrutiny committee clears the case, documents are returned back to the court with its recommendations and then a date for hearing is fixed.

The court, when satisfied, passes adoption order giving permanent custody of the child to the adoptive parents. Within two months from issue of the order an adoption deed is made, which marks the end of the legal process of adoption. After completion of the Deed, adoptive parents can apply for birth certificate of the child. More information on adoption is available at CARA’S official website help www.adoption India.Nic.in.

Hindu adoptions and Maintenance Act-1956:

This act extends to the whole of India except the State of Jammu and Kashmir and it is applicable to persons belonging to only Hindu religion. Prior to this act only a male Hindu had the right to adopt a son provided he had no son or grandson or great grandson (son’s son’s sons). A wife could adopt a son to her husband but she could not do so during her husband’s life time without his express consent.

After his death she could adopt but the adoption had to be made to her husband. A daughter could not be adopted by a male or a female Hindu. The Hindu Adoption and Maintenance Act 1956 provides for the adoption of boys as well as girls. A widow can now adopt a son or daughter in her own name.

A female Hindu who is unmarried or a widow or a divorcee can adopt a son or a daughter to herself, provided she has not a son, grandson or great grandson at the time of adoption. The husband can adopt only with the consent of his wife, if she is alive and is of sound mind.

Requisites of a valid adoption:

No adoption shall be valid unless:

  • The person adopting has the capacity and also the right, to take in adoption.
  • The person giving in adoption has the capacity to do so.
  • The person adopted is capable of being taken in adoption and
  • The adoption is made in compliance with the other conditions mentioned in this act.

Capacity of a male Hindu to take in adoption:

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. Provided that if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

Capacity of a female Hindu to take in adoption:

Any Female Hindu:

(i)Who is of sound mind.

(ii)Who is not a minor and

(iii)Who is not married or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the would or has ceased to be a Hindu or has been declared by a court of competent Jurisdiction to be of unsound mind has the capacity to take a son or daughter in adoption.

Persons capable of giving in adoption:

  • No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
    • Where both the father and mother are dead or have 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.
    • Before granting permission to guardian for adoption the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.

Persons who may be adopted

No person shall be capable of being taken in adoption unless the following conditions are fulfilled namely:

  • He or she is a Hindu
  • He or she has not already been adopted earlier
  • He or she has not married unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption.
  • He or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

Other conditions for a valid adoption:

In every adoption, the following conditions must be complied with:

  • If any adoption is of son or daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu son or daughter or son’s son or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption.
  • If the adoption is by a male and the person to be adopted is a female, the adoptive father is least twenty-one years older than the person to be adopted.
  • If the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted.
  • The same child may not be adopted simultaneously by two or more person.
  • The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption.

Provided that the performance of data human shall not be essential to the validity of an adoption.

The effect of adoption:

An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family provided that

  • The child can not 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.
  • Any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth.
  • The adopted child shall not divest any person of any estate which vested in him or her before the adoption.
  • Under this act both son and daughter are bound to maintain the aged or infirm parents, while previously only son was bound to do so.

Conclusion

Since our country is tangled by the presence of different religions and their own personal laws, certain matters such as adoption require the imposition of a Uniform Civil Code by the state under Article 44 of the Indian Constitution, 1950, so that every citizen irrespective of their religion receives certain rights such as the right to adopt a child. The landmark judgement of Mohd. Ahmed Khan v. Shah Bano Begum , referred to as the Shah Bano case, which pointed put the significant need of civil code in our country. There is a bar in the religious community of many childless parents who are willing to adopt, and therefore it reduces the scope of adoption our country. There are so many laws to regulate adoption, instead if there is a common secular law for every citizen to adopt, then, many homeless children can get a family, and many childless and willing parents can get a child to nurture.

References

  1. RK Agrawal, Hindu law,176,(central law agency,25th ed. 2016)
  2. Deepak kumar verma, Hindu adoption laws and interpretation by different High Court, National Judicial Academy, Bhopal, (June, 04, 2019, 11:45am), http://www.nja.nic.in/
  3. https://www.yourarticlelibrary.com/adoption/adoption-in-india-an-overview/47681
  4. https://vikaspedia.in/social-welfare/women-and-child-development/child-development-1/child-adoption/overview-of-child-adoption-process-in-india
  5. https://racolblegal.com/adoption-in-india-an-overview/

Submitted by AmishaTiwari

New Law College, Bharati Vidyapeeth Deemed to be University, Pune BALLB 1st year student

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