ABSTRACT
Adoption under Hindu Law requires meeting various conditions and requirements in order to be legitimate, which are governed by a codified set of rules and regulations. When a child is adopted, the biological parents legally give up all parental rights and duties to the adoptive parents. The adopted parents become the child’s natural parents. This research explores a detailed summary of these regulations using case laws. It examines the legal rules for the care and protection of children within the Hindu legal framework. It focuses on the legal implications, historical context, and provisions, as well as the transition from traditional practices to a more inclusive legal framework.
KEYWORDS: Hindu Law, Adoption, The Hindu Adoption and Maintenance Act, Adoptive parents.
INTRODUCTION
Adoption in India refers to the legal process through which individuals or couples become the parents of a child who is not their biological child. All the responsibilities that biological parents have over their children are transferred to adoptive parents through the adoption procedure. Adoption in India is subject to different laws for different religions. The Hindu Adoption and Maintenance Act, 1956, primarily administers adoption for Hindus, Buddhists, Jains, and Sikhs. The legal requirements, eligibility conditions, and processes for adoption within these communities are outlined in this legislation. The process of adoption under “Hindu law” signifies the complete transplantation of the child from their natural family to the adoptive family, thereby establishing new familial ties and relationships. As a result, “the adopted child” acquires not only the rights and privileges but also the familial obligations associated with being a legitimate, natural-born son or daughter in the adoptive family. Conversely, they create a prohibited degree with both their adoptive and natural family. Adopted child severs all ties with their natural family.
Before the act, adoption was restricted primarily to male heirs, and there were limited provisions for adoption by women. HAMA expanded eligibility criteria, allowing both men and women to adopt, subject to certain conditions. Additionally, the Act extended adoption rights to widows, spinsters, divorcees, and married women under specific circumstances, thereby broadening the pool of potential adoptive parents. It introduced age requirements for adoptive parents and mandated an age difference between the adoptive parent and adoptee when they are of different genders. These provisions aim to ensu.re the welfare and stability of the adopted child within the adoptive family.
RESEARCH METHODOLOGY
This paper adopts secondary legal research approach to analyze the intersection of legal provisions, cultural attitudes, and societal norms regarding adoption. The research explores the legal frameworks by examining articles, journal articles, and relevant legislations.
LITERATURE REVIEW
Adoption, particularly in Hindu culture, is the legal transfer of parental rights and duties from biological parents to adopted parents. In Hindu law, adoption has strong cultural and religious importance, and it is frequently regarded as a sacramental rather than a secular act. Historically, adoption was largely intended to preserve family lineage and provide burial rites, reflecting Hindu society’s emphasis on progeny. The Hindu legal framework for adoption is well-documented in scriptures, epics, and conventions, providing a wealth of knowledge on adoption practices, ceremonies, and legal requirements. Unlike other major religious systems, Hindu law specifically handles adoption. Adoption is not specifically addressed in Islam, Parsi, or Christianity, thus generic regulations such as the Guardians and Wards Act of 1890 apply. Legal prerequisites for adoption under HAMA include the capacity and permission of both adoptive and birth parents, as well as the child’s well-being. Failure to comply with any of these standards renders the adoption null and void. The Act allows adult and female Hindus to adopt infants under certain conditions. Furthermore, it allows for adoption by single individuals and provides guidelines for inter-country adoption.
Adoption and maintenance laws are effective and relevant in modern Indian culture because of the substantial influence of judicial precedents and rulings. By enacting laws such as HAMA, the Hindu legal system aims to preserve social fairness, preserve family structures, and protect adoptee rights by striking a balance between tradition, ethics, and modern legal concepts.
HISTORCAL BACKGROUND
Adoption has been a longstanding practice in Hindu society, serving various purposes including lineage continuation, inheritance rights, and social obligations. Society always placed an importance on having a son. “This has led to the development of the practice of adoption. Adoption was seen as more of a sacramental act than a secular one in the Shashtrik Hindu Law”. The references of ad0ption can be traced back t0 as early as the Vedic era. Mentions about the adoption are found in the Rigveda and the Atharvaveda. Adoption during this period was primarily aimed at ensuring the continuity of lineage and inheritance within families. Manusmriti, one of the most well-known Dharmashastra scriptures, provides adoption norms and ceremonies, emphasizing the need of maintaining family lineage and performing ancestral rites. The Ramayana and the Mahabharata also contain references to adoption. The story of Karna being who is adopted by a charioteer Sanjay and his wife Radha is well-known.
“There has been an acute controversy not only among the writers but also among the judges, whether in adoption secular motive predominates or the religious motive predominates”. In the case of “Inder Singh v. Kartar Singh”, the Punjab and Haryana HC held that “the object of adoption is twofold: to secure performance of one’s funeral rites and to preserve the continuance of one’s lineage”. Adoption was earlier believed to be a sacramental act.
The doctrine of “relation back” was another significant aspect of adoption under old Hiindu law. This doctrine essentially meant that when a widow adopted a son, the adoption was retroactively deemed to have occurred at the time of her husband’s death. This allowed for the continuation of the family lineage and ensured that the deceased husband did not pass away without a male heir.
Adoption has evolved significantly from its ancient religious and sacramental foundations under the current legal framework established by the Hindu Adoptions and Maintenance Act of 1956. Unlike in the past, when adoption was strongly linked to sacred ceremonies and beliefs, current law defines adoption as a secular institution and act.
ANALYSIS
Certain conditions must be fulfilled before an adoption can be recognized valid under “the Hindu Adoption and Maintenance Act” (HAMA),1956. Section 6 of the Act provides for requisites of a valid adoption. Primarily, the adoptive parent must have the capacity and legal right to adopt. This assures that the individual is mentally and legally competent to assume parental obligations. Second, the individual giving up a child for adoption must have the legal competence to do so, which ensures that the adoption process is carried out with proper consent and authority. Third, the child being adopted must have the capacity of adoption, taking into factors such as age and legal status. Finally, the adoption must meet all other requirements outlined in the relevant chapters of the HAMA, assuring compliance with the legal framework governing adoption under Hindu law. These requirements collectively lay the basis for a lawful adoption while protecting the interests of all parties engaged in the process.
WHO MAY TAKE IN ADOPTION
Under Hindu law, both adult males and females are granted the capacity to adopt a child, provided they meet specific requirements. This includes being of sound mind and reaching the age of majority, typically 18 years. For married individuals, obtaining the consent of their spouse is crucial, unless certain legal exceptions apply. In cases of polygamous marriages, the consent of all spouses is necessary for the adoption to be valid, highlighting the importance of marital agreement in the process. The absence of spousal consent renders the adoption void, emphasizing the significance of marital harmony in adoption decisions.
Adoption by Hindu Male
“The Hindu Adoptions and Maintenance Act of 1956” allows adult Hindu males, irrespective of their marital status, to adopt a child. However, if married, obtaining the “consent of the wife” is mandatory for the adoption to be legally recognized. The failure to secure spousal consent results in the adoption being considered void. Additionally, when adopting a female child, the adoptive father must be “at least 21 years older” than the child to comply with legal requirements, ensuring the stability and welfare of the adopted child. the consent of the wife is not required in specific circumstances as outlined in Section 7. In cases where the wife has ceased to be a Hindu, has fully renounced the world, or has been declared legally unsound by a competent court, her consent for adoption is not necessary.
Bholooram & Ors. v. Ramlal & Ors.
In the Bholooram & Ors. v. Ramlal & Ors. case, the issue under consideration was whether the consent of all wives is required if an individual has multiple wives alive at the instance of adoption. The court ruled that if a wife has absconded to an unknown location, her absence cannot be considered as her legal death unless the conditions outlined in “Section 107 of the Evidence Act” are met. As long as a woman is recognized as a wife in the eyes of the law, her consent is deemed necessary for the validity of an adoption under Section 7 of the Act.
Bhima Kotha Dalai And Ors. vs Sarat Chandra Kotha Dalai
In this case the appellant contended that Butulu Kotha Dalai was not competent to adopt a son (Sarat Chandra Kotha Dalai) to himself because he had widowed daughters-in-law who could adopt sons. The court examined relevant precedents and Hindu law principles related to adoption. The court held that Butulu Kotha Dalai did not lose his right to adopt due to the existence of widowed daughters-in-law. “
Adoption by Hindu Female”
T.he A.ct introduced a transition from traditional Hindu law by granting Hindu females, including unmarried, widowed, or divorced women, the authority to adopt in their own right. This empowers Hindu females to make adoption decisions independently, without reliance on male part. However, a married Hindu woman “lacks the capacity to adopt” independently, unless certain conditions apply, such as her husband renouncing Hinduism or being declared legally unsound. This recognition of female autonomy in adoption decisions marks a significant shift in adoption practices within Hindu law, emphasizing individual agency and decision-making authority.
Golak Chandra Rath v. Krutibas Rath
In the case of Golak Chandra Rath v. Krutibas Rath, issue revolved around the validity of the adoption claimed by the plaintiff. In this case, the defendants argued that the age difference between the “adoptive mother and the adopted son was less than 21 years”, rendering the adoption invalid under “Section 11(iv) of the Act”. The court dismissed the suit, finding that the adoption had not been established and that there was a violation of the age requirement prescribed in “Section 11(iv) of the Hindu Adoptions and Maintenance Act”, 1956.
Vijayalakshmma v. B.T. Shankar
In this case, it was held that “where a widow adopts a child, she need not take consent of a co-widow because she adopts the child in her own capacity”.
WHO MAY GIVE IN ADOPTION”
In the “Hindu Adoptions & Maintenance Act”, 1956 (HAMA), Section 9 outlines who “has the right to give a child in adoption”. Before the implementation of the act, only the father or mother possessed the legal authority to give a child in adoption, as dictated by ancient Hindu legal principles. Prior to 1956, the father had complete independence to give his son in adoption, regardless of any objection from the child’s mother. Subsequently, the mother could also exercise this right after the father’s death. Other parties, including guardians, were not empowered to facilitate adoptions. However, with the implementation of HAMA, adoption regulations underwent modernization and standardization. This Act expanded the scope of authority to include the father, mother, and guardian in the process of giving a child in adoption.
Father
The father cann0t give the child in ad0ption without the c0nsent of the m0ther, except under specific circumstances. These include situations where the “m0ther has ren0unced the world, ceased to be a Hindu, or been declared unsound of mind by court order”. In the absence 0f the mother’s c0nsent, any ad0ption attempted by the father is deemed void. Notably, the term ‘father’ does not include adoptive fathers, putative fathers, or stepfathers.
M0ther
The m0ther of an “illegitimate child” holds the authority to give the child in ad0ption independently, without needing consent from the putative father. However, concerning legitimate children, the mother’s right is restricted while the father is alive. She can only give the child in ad0ption if certain criteria regarding the father are fulfilled, such as his conversion to another religion, renunciation of worldly affairs, or a declaration by court of unsoundness of mind. After the father’s demise, the mother regains complete authority to decide on the child’s adoption even if the father expressed that his child should not be given in adoption. The expression “mother” does not include step-mother or adoptive mother. This was held in of Dhanraj v. Smt. Suraj Bai case. If a mother has ceased to be a Hindu or has divorced, she does “not lose her right to give her child in adoption”.
DHANRAJ V. SMT. SURAJ BAI
In the case of “Dhanraj v. Smt. Suraj Bai”, the main issue was whether a step-mother could give her step-son in adoption in the absence of the natural parents, and if not, whether the adoption would be considered void. The appellant, Dhanraj, was adopted by Amichand with the consent of Smt. Suraj Bai in November 1959. However, after Amichand’s death, Smt. Suraj Bai filed a suit challenging the adoption’s validity. The court held that the scheme of HAMA does not allow for the adoption of individuals above the age of 15, except in cases where custom or usage permits otherwise. The court held that step-mother has “no capacity to give the child in adoption”. Therefore, the adoption was deemed void, and the appeal was dismissed. This case underscores the importance of adhering to legal provisions and customs governing adoption under HAMA to ensure the validity of adoption proceedings.
Guardian
The term ‘guardian’ under the “Hindu Adoptions & Maintenance Act”, 1956, encompasses both legal guardians (de jure) and factual guardians (de facto). This includes individuals like managers, secretaries, or those overseeing an orphanage, as well as individuals who have raised the child or are responsible for their welfare. Guardians are empowered to give a child in adoption under various circumstances, including if both parents are deceased, have renounced worldly affairs, are deemed mentally incompetent, or have abandoned the child or if the parentage of the child is unknown. However, such actions necessitate prior authorization from the court, which must ensure that the adoption serves the child’s best interests. In Sohan Lal V. Addl. District & Sessions Judge where a Protection Home who took care of the child as the father was unkn0wn and the m0ther was deaf and dumb was considered to be “guardian” under this Act.
WHO MAY BE TAKEN IN ADOPTION
Single adoption: Single Adoption, as stipulated in “Section 10 of the Hindu Adoptions and Maintenance Act”, 1956, clearly mandates that the adoption of a child can only be undertaken by a single individual. This provision serves to establish clarity and mitigate ambiguities concerning the legal status and entitlements of the adopted child within the family of the adoptive parent. This was held in the case of Vithal vs. Ausabai.
Child must be a Hindu: According to “Section 10(i) of the Hindu Adoptions and Maintenance Act,” 1956, it’s required that the child being adopted must be Hindu. This means the child should follow the Hindu faith.
“Orphan, Foundling, and Abandoned Child”: Under the old law, orphaned, abandoned child, or foundlings could not be adopted. The Act provides the adoption of orphans, foundlings, and abandoned children. By permitting the adoption of these vulnerable children, the law recognizes the importance of providing them with a stable and loving family environment. This provision reflects a commitment to ensuring the welfare and protection of children who may otherwise lack parental care and support.
Mother’s Eligibility: In traditional Hindu law, the adopter’s eligibility to adopt a child was often tied to their marital status and relationship with the child’s mother. For example, only a married man could adopt a child, and the child had to be legally eligible to be married to the adopter’s family. This meant that single individuals or those with unconventional family structures were often excluded from adoption. However, under HAMA, these restrictions are lifted, particularly concerning the adopter’s relationship with the child’s mother. Regardless of whether the adopter is married, single, divorced, or widowed, they have the legal right to adopt a child without any consideration of their relationship with the child’s mother.
Age of the Child: “Section 10(iv)” specifies that the child to be adopted mu.st be under the age of 15, except in regions where local customs permit adoption of older children. This criterion aims to ensure that the child can be properly integrated into the adoptive family and receive adequate care and support during their formative years.
Marital Status: While the Act (Section 10 (iii)) prohibits the adoption of married children. However, it recognizes such adoption if customary practices allow.
Adoption of Daughters and Illegitimate Children: Unlike ancient Hindu law, which imposed restrictions on the adoption of daughters and illegitimate children, the Act permits their adoption. This progressive stance reflects a shift towards greater gender equality and inclusivity in adoption practices, ensuring that all children, regardless of gender or birth status, have the opportunity to experience the love and support of a family.
Limitation on Number of Adoptions: Section 10 restricts individuals from adopting more than one son and one daughter, preventing excessive adoptions and ensuring that each child receives adequate attention and care within the adoptive family.
Gender and Age Difference: Finally, Section 10 mandates a minimum age difference of 21 years between the adoptive parent and the child if they are of opposite genders. “Violation of this requirement renders the adoption void.”
Hanmant Laxman Salunke V. Shrirang Narayan Kanse
In this case, although a “custom allowing the adoption of a child over 15 years of age was acknowledged”, it was found that the age difference between the adoptive mother and the adopted son was less than 21 years. This violation of the mandatory condition was deemed the adoption void.
The provisions of the “Hindu Adoptions and Maintenance Act” are designed to ensure the welfare and stability of adopted children within their adoptive families. By establishing clear guidelines for adoption, act aims to safeguard the rights and welfares of all parties involved, including the adopted child, the adoptive parents, and the biological parents. HAMA stipulates certain capacity and eligibility criteria that prospective adoptive parents must meet before they can adopt a child. By ensuring that adoptive parents are capable and qualified to provide a nurturing and supportive environment for the child, HAMA helps to promote the child’s welfare and stability within the adoptive family. The act imposes age requirements for adoptive parents, as well as an age difference between the “adoptive parent and the child” in cases of adoption of children of the opposite gender. These requirements are intended to ensure that adoptive parents are mature and financially stable enough to provide for the child’s needs and that there is a significant age gap to foster a parent-child relationship based on care and guidance rather than peer-like dynamics. HAMA necessitate spousal consent from married individuals who want to adopt, ensuring that adoption decisions are made with mutual agreement and discussion within the marital unit. However, the Act makes an exception in circumstances when the spouse has renounced Hinduism, discontinued to be of sound mind, or completely abandoned worldly affairs. This rule helps to reduce family disagreements and fosters stability during the adoption process.
SUGGESTIONS
Due to societal, religious, and cultural norms, adoption is frequently associated with stigmas and taboos. Because biological ancestry and inheritance are highly valued in Hindu culture, adopting a kid who is not from the same caste or bloodline may raise questions about breaking family customs or inheritance patterns. Furthermore, adoption can be interpreted as a sign of infertility, which could damage one’s reputation or social standing. The stigma against adoption may also stem from pressure to have biological children in order to uphold family honor and conform to cultural norms. Some people worry about the adopted child’s capacity to fit in with the family and form close emotional ties, or they fear they won’t be able to bond with the child in the same way they would with a biological child. Because of their non-biological status, adopted children may experience prejudice or rejection from their extended family or community, which can cause anxiety about receiving different treatment or not being fully accepted.
A holistic strategy is needed to break the taboo around adoption in Hindu conservative society. It might be helpful to shift perceptions to showcase happy adoption stories and celebrate the joy of creating families through adoption through media outlets. Adoptive families’ real-life stories can be shared to demonstrate the warmth and happiness that adoption gives.
To better comprehend the cultural complexities and sensitivities of adoption in Hindu conventional society, adoption experts, social workers, and healthcare providers must undergo cultural sensitivity training. Peer support groups can be established to give a secure environment for experience sharing, problem solving, and emotional support to adoptive families and those thinking about adoption. Moreover, collaborations with NGOs and advocating for changes in laws including reforms that streamline adoption process and make it easier while ensuring child welfare and equal rights and protections for prospective parents.
Encouraging influential figures to publicly support adoption and sharing their positive experiences, people like celebrities, leaders, religious leaders and role models can normalize adoption and encourage others to reevaluate their attitudes and beliefs.
CONCLUSION
The essentials of adoption under the Hindu Adoptions and Maintenance Act of 1956 are critical in defining the legal framework that governs adoption in Hindu society. These essentials include a variety of subjects, including the eligibility criteria for adoptive parents, the circumstances for placing a child for adoption, and the requirements for the child to be adopted. Each of these factors is essential for ensuring the legality, validity, and welfare of the adoption process.
Overall, HAMA’s adoption requirements are distinctive significantly from traditional Hindu adoption practices, emphasizing legal clarity, parental agreement, and child care These basic principles play an important role in creating a fairer and more compassionate attitude to adoption in society, helping both children in need of homes and prospective adopting parents. One of the fundamental aspects of HAMA is its provisions regarding the capacity and eligibility of adoptive parents. By granting both men and women the right to adopt, act represents a progressive departure from earlier Hindu adoption customs, which often favored male heirs.
The Act expands the scope of individuals authorized to facilitate adoptions to include both parents and guardians. The Act also provides for the importance of spousal consent which is remarkable. However, the requirement for spousal consent in certain cases of married individuals may pose obstacles in situations where marital discord or difficulties exists. The Act’s provisions regarding the rights of unmarried or divorced mothers to give a child in adoption are notable and promote equality. Requiring a significant age gap between the “adoptive parent and the child” of the opposite gender is crucial for safeguarding the child’s emotional and psychological development. By creating a strong legal framework for adoption, the act ensures that decisions are made in compliance with legal principles and in the best interests of the child.
RIYANSHI SRIVASTAVA
SYMBIOSIS LAW SCHOOL NOIDA