This article is written by Anju, 2nd year law student of Lloyd Law College, Greater Noida.
INTRODUCTION: A wedded couple or a solitary lady who chooses to raise and really focus on the youngster can take on a kid through a formal lawful cycle. A parent-kid association can be legitimately settled by reception between people who are not related by blood. This two-way approach has made it easier for couples without children to conceive. Adoption is the formal placement of a child with a parent or parents other than their biological parents for life.
When a child is adopted, the rights and responsibilities of the biological parents are transferred to the adoptive parents. This foundation has worldwide acknowledgment. Adoption is a point of emphasis in almost every religion.
Jan C, Barbara, Mark solar, and others have stated: Reception is a Lawful technique which for all time ends the legitimate connection between the youngster and his natural guardians and starts another parent kid relationship.”
WHO CAN ADOPT:
In India, a Hindu male candidate for reception should be of sound brain, be a significant, and have the option to give a reasonable life (monetarily) for the embraced child or little girl. In addition, unless she has publicly and completely given up on life, abandoned Hinduism, or been found mentally incompetent by the relevant court, the adoption should only take place with her consent if he still has a living wife.
In India, a Hindu lady trying to embrace a kid should be of sound brain, be a significant, and have the option to monetarily give a reasonable life to her took on child or little girl. Being unmarried is one more fundamental requirement for a Hindu lady to take on. Assuming she is hitched, the marriage has either finished in separate, the spouse has openly and completely spurned the world, he has left Hinduism, or the important court has decided that he isn’t of sound psyche. One significant perspective is that for a Hindu lady in a regular wedded life to embrace a youngster, her understanding is expected for all reception methods.
WHO CAN BE ADOPTED?
According to the Hindu Adoption and Maintenance Act, 1956, a child/person can get adopted only if:
- He/she is a Hindu
- He/she has not already been adopted
- He/she is single (not married), except there is some usage or custom applicable on him that allows him/her to get adopted being married
- He/she has not completed the age of 15 years, except there is some usage or custom applicable to him that allows him/her to get adopted over 15 years of age.
Other Valid Conditions for Adoption Are:-
- In case the adoption is being done for a son, the adoptive parent should not have a Hindu son’s son or son’s son’s son, being alive at the time of adoption.
- In case the adoption is being done for a daughter, the adoptive parent should not have a Hindu daughter or son’s daughter being alive at the time of adoption.
- In case the adoption is being done for a male, by a male parent, the father adopting should be 21 years older than the adopted son.
- In case the adoption is being done for a male, by a female parent, the mother adopting should be 21 years older than the adopted son.
- A child cannot get adopted simultaneously by two or more parents. He/she has to be actually taken for adoption with an intention to transfer the child from his birth family.
HINDU LAW:
The Hindu Law enables adoption in India lawful. In accordance with the Hindu Adoption and Maintenance Act of 1956, it defines adoption. It instructs adoptive parents to care for their adopted children just like they would their own. Adopted children and biological children cannot be treated differently. Adopted parents are required to provide their adopted girl child with all the amenities for which she qualifies, just as they would for their biological child. There will be no distinction made between male and female children. All the facilities provided to their biological son are also extended to girls.
The landmark case on Hindu Law:
Bal Gangadhar Tilak vs Shrinivas Tilak- In this Privy Council observed that adoption among Hindus is not only for the legalise the children but also it is a religious means to make obligations and sacrifices which would permit the soul of the deceased father passing from Hades to paradise.
Amarendra Mansingh vs Sanatan Singh-In this case, the Privy Council observed about the foundation of the Brahmanical doctrine of adoption is the duty which every Hindu owes with his ancestors to provide for the continuance of the line and the solemnization of the necessary rites. Adoption is a part of the customs and burden of proving the validity of adoption depends on the person who claims it under the Hindu Adoption and Maintenance Act, 1956.
Binapani Samanta vs Sambhu Mondal–The petitioner has filed a petition challenging the defendant who is the probate of the will on the ground that she was the adopted daughter of the deceased who died and the probate is fraudulent. But she fails to prove the burden of proof of the validity of the adoption. It was held that she could not challenge the probate.
HINDU ADOPTION AND MAINTENANCE ACT, 1956- This act was enacted in the year 1956 for the maintenance of children who don’t have legal parents and they have to live in an organization.
Features of the Act
- Females can adopt a child and even give for adoption.
- Female can adopt the child with the consent of his husband
- A widow can also adopt the child.
- The male has to take the consent of his wife if he wants to adopt the child.
- Female can adopt the child which was not permissible in pre-act
EFFECT OF ADOPTION:-
When children get adopted he/she gets right in the property of their parents. They become part of the natural family. All the rights and obligations of a natural-born child of the family fall on the adoptive child with some exceptions. These exceptions are as follows:
- An adopted children can only marry the adopted child. He cannot marry anyone who is not adopted.
- Any property which is vested in the adopted child before adoption continues to vest in him subject to the obligation, if any, attaching with the ownership of the property, including the obligations to maintain relations of his/her birth.
- The adoptive child cannot divest any person of any estate which vested in him or her before adoption.
Assuming any guardians give their property to their supportive youngster they lose ability to discard the property or move the property. They are not entitled to the adoptive child’s property. If a man is already married and his wife has adopted a child, she is the biological mother of that child. If the man was married to another girl, she is the adoptive child’s stepmother. If an unmarried man adopts a child before getting married, his wife takes on the role of stepmother for that child. She will not consider herself the child’s legal mother. Furthermore, in the event that any unmarried lady or a widow or separated from lady has a taken on youngster and on the off chance that she wedded somebody, he will become the step-father of that kid. As a result, disputes frequently arise between the adopted child and stepfather. The purpose for this embraced child has no squarely in the property of his step-father.
COMPARISON BETWEEN MALE AND FEMALE IN CASE OF ADOPTION:-
- Married women cannot adopt the child even though she cannot adopt the child with the consent of her husband.
- If any female wants to adopt the child, in case she can only adopt the child if she widow or divorced or a single mother.
- A married male can adopt the child with the consent of her wife.
- Unmarried males can also adopt the child.
In the case of giving in adoption father has a better right:
- If the father is alive he can give his child for adoption with the permission of his wife.
- But a mother cannot give their child for adoption even with the consent of her husband she cannot give for adoption.
- Mother can give the child for adoption if her husband died.
CASE LAWS: –
Malti Roy Chowdhury vs Sudhindranath Majumdar- This case is filed by the petitioner for the right of married women for adoption because according to HAMA act married women cannot adopt a child and not even with the consent of her husband. This case is related to gender discrimination. The court marked for this judgment is “Adoption has to be taken factually or legally by the male in case of marriage, and not by the wife. In other words, the wife cannot adopt even with the consent of the husband”.
Brijendra Singh vs The State of M.P-This case overruled the case Malti Roy, in this case, it is observed that this case came as a big disappointment. In this case, disabled lady was married with the village custom, a virgin girl must get married, her husband left her and after that, she adopted a son after 22 years of her marriage. In the other case, disputes are under the agriculture land ceiling law. She sought a declaration that the appellant was her adopted son. The suit was decreed by the trial court and affirmed by the first appellate court. On second appeal to the Madhya Pradesh High Court it was held that, given the provisions of section 8(c) of the HAMA Act, 1956, the adoption was not valid. The argument she said that she is leading a life like a divorced woman was not accepted because this was a great deal of difference between a female Hindu who is divorced and one who is leading a life like a divorced woman, the court observed.
After this new Act is established in favour of married women, the Gender Discrimination Act which is a personal law amended in the year 2010, which gives right to the married women to adopt a child with husband’s consent but that is not likely to change the fate of married female placed in the position of the disabled, deserted, “divorced-like” lady in this case.
CONCLUSION:-
The course of reception has gone through different changes in previous times. In modern times, its goal has changed. Prior, it was considered as strict instituton however presently the idea has changed now and again. Nowadays it is considered as the most formative cycle for the entire society as a result of which all the childern’s which are not conceived legitimate are legitimized after the course of reception. The children receive care and protection from their adoptive family in addition to legalization. Therefore, adopting them is the most effective strategy for providing them with the best possible life. By this cycle couples got childern’s and youngsters has guardians.
The children receive care and protection from their adoptive family in addition to legalization. Subsequently, reception is the most effective way to give them a best life. By this cycle couples got childern’s and youngsters has guardians. Finally, I’ll say that the child’s adoption is the most important developmental process. In view of this cycle, the kids who are not legitimized are to be authorized after the reception and they additionally get all the consideration and security from their loved ones. Additionally, it keeps the country’s population stable.
REFERENCES:
https://www.indiafilings.com/learn/adoption-laws-in-india/
https://blog.ipleaders.in/adoption-in-india-family-law/
https://www.legalservicesindia.com/law/article/2527/15/adoption-under-hindu-law
https://www.indiacode.nic.in/bitstream/123456789/1638/1/AA1956____78.pdf