The Hindu Adoption and Maintenance Act, 1956 [1]deals with the legal procedure of adoption of children by Hindus and other legal obligations that need to be followed like maintenance of children, wife etc. This law was derived from the uncodified Hindu Laws Dharamsastra. This act was enacted as part of the Hindu Code Bills. This act applies to all the religions except Muslim, Christian, Parsi and Jew.
Who can adopt a child?
Section 7[2]of the act talks about the capacity of a Hindu male to adopt a child whereas Section 8[3]of the act talks about the capacity of a Hindu female to adopt a child.
According to Section 7 of the act, a male can adopt a child if he fulfills the following conditions:
- Attained the age of majority
- Is of Sound Mind
- Must have a wife alive whose consent is necessary
- If the person has multiple wives, then the consent of all the wives is necessary.
According to section 8of the act, a female can adopt a child if she fulfills the following conditions:
- Attained the age of majority
- Is of sound mind
- Is either a widow
- Is divorced
- Is unmarried in order to adopt.
Who can give a child for adoption?
According to section 9 of the act:
- Only the biological father of the child has the right to give the child for adoption
- The consent of the child’s biological mother is also necessary.
A mother can give the child for adoption if:
- The father is dead
- The father is of unsound mind
- Father has renounced the world
- Father has converted to some other religion
According to section 9[4], the guardian can also give the child for adoption, but he must take the permission of the court before doing so. The court will give the permission if it is satisfied that:
- The adoption is for the welfare of the child
- No payment is given to the guardian in exchange for the child.
Necessary Conditions for Adoption
Section 11[5]of the act provides for the necessary conditions for adoption.
Section 11(i) provides the conditions for adoption of a son. According to this section, if a Hindu male or female wants to adopt a son, then they should not have a living son, grandson or great-grandson during the time of adoption.
Section 11(ii) provides the conditions for adoption of a daughter. According to this section, if a Hindu male or female wants to adopt a daughter, then they should not have a living daughter or granddaughter from their son during the time of adoption.
Section 11(iii) provides the conditions for adoption of a female child by a male. According to this section, if a male wants to adopt a female child, then he must first fulfill the requirements prescribed under Section 7 of the act and secondly, he should be at least 21 years older than the female child who is to be adopted.
Section 11(iv) provides the conditions for adoption of a male child by a female. According to this section, if a female wants to adopt a male child, then she must first fulfill the requirements prescribed under Section 8 of the act and secondly, she should be at least 21 years older than the male child who is to be adopted.
Section 11(v) of the act states that the same child cannot be adopted by multiple people at the same time.
Effects of Adoption
Section 12[6]of the acts defines the effects of adoption. After the adoption, the child will be considered as the child of the adoptive parents. The adoptive parents will have all the parental obligations and rights. The child will also have the rights and obligations of a son/daughter. The adoptive child needs to follow certain rules that he/she cannot marry anyone from their birth family, the rule of ‘sapinda relation’ shall be applied which have been defined under the Hindu Marriage Act, 1955. If the adopted child has any property before the adoption, then he/she shall still have the possession of that property. If some obligations are attached to the property, then he/she shall be liable for those obligations, even if he/she has to maintain any member of his/her biological family.
According to section 13[7]of the act, the adoptive parents have the right to dispose of their properties by way of gift or will, the adoption doesn’t stop them.
Section 14[8]of the act states, if a bachelor or male widower adopts a child and after the adoption, he marries someone, then his wife will be called step-mother of that child. Similarly, if an unmarried woman or a widow adopts a child and after the adoption, she marries someone, then her husband will be called step-father of that child.
If a person has been validly adopted, then there is now way that they can cancel the adoption. Section 15[9] of the act states, neither the parents can cancel the valid adoption nor the child has any right to renounce the adoption.
Section 17[10]of the act, states that no payment should be made or received during the adoption. If any person is caught making or receiving the payment in any form, then he shall be liable for imprisonment for up to 6 months and/or fine.
Conclusion
The Hindu Adoption and Maintenance Act, 1956 contains many provisions which deal with necessary conditions which need to be fulfilled for a valid adoption. However, certain provisions of the act need to be improved. As there is no provision where the married woman can take an adopted child under her own name even after obtaining the consent of her husband.
[1] https://tcw.nic.in/Acts/Hindu%20adoption%20and%20Maintenance%20Act.pdf (Last Visited on 2nd August, 2021 at 10:10 AM)
[2] https://indiankanoon.org/doc/1698417/ (Last Visited on 2nd August, 2021 at 10:25 AM)
[3] https://indiankanoon.org/doc/1494822/ (Last Visited on 2nd August, 2021 at 10:45 AM)
[4] https://indiankanoon.org/doc/754978/ (Last Visited on 2nd August, 2021 at 11:45 AM)
[5] https://indiankanoon.org/doc/1340229/ (Last Visited on 2nd August, 2021 at 12:05 PM)
[6] https://indiankanoon.org/doc/1943999/ (Last Visited on 2nd August, 2021 at 1:15 PM)
[7]https://indiankanoon.org/doc/1975723/#:~:text=Section%2013%20in%20The%20Hindu%20Adoptions%20and%20Maintenance%20Act%2C%201956&text=13.,inter%20vivos%20or%20by%20will (Last Visited on 2nd August, 2021 at 2:05 PM)
[8] https://indiankanoon.org/doc/183623263/ (Last Visited on 2nd August, 2021 at 2:45 PM)
[9]https://indiankanoon.org/doc/1202482/ (Last Visited on 2nd August, 2021 at 3:45 PM)
[10] https://indiankanoon.org/doc/239702/ (Last Visited on 2nd August, 2021 at 4:15 PM)
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