The article has been written by Ms. Arushi, a B.A.LL.B(2022-27) student od Lloyd School of Law, Greater Noida,U.P.
Introduction
The Hindu Adoption and Maintenance Act enact on 21st December,1956. It deals with the legal procedure of adoption of children by Hindu including maintenance of children, wife, and in-laws.
Applicability of Hindu Adoption and Maintenance Act
as per the act Hindu person includes other sub-religions of Hinduism, such as- Buddhists, Jains, Sikhs, Virashaiva, Lingayat, or members of Arya Samaj. Followers of Brahmo and Prarthana are also included in the definition of Hindu. The act is applicable on any other person domiciled in the territory where Hindu Maintenance and adoption act extends but not applicable on Muslim, Christan, Parsi and jew. Persons on whom Hindu law custom or usage are not applied they are not included under Hindu.
Adoption-
The Act of establishing a legal relationship between a child and a parent other than the child’s biological parent, thereby entrusting the designated adult with responsibility for raising the child.
According to Manusmiriti Adoption has been described as ‘taking someone’s else’s son and raising him as one’s own’.
Adoption under Hindu Law
Hindu Adoption and Maintenance Act has made the definition of ‘adoption’ much wider by using the word ‘child’ instead of ‘son’. Child includes both a girl and a boy child, and not just a son.
As per Hindu Shastra, it is believed that the adopted son is a reflection of the natural son of Adoptive Parents. This helps in guaranteeing the protection and care of the adopted son. Once a child for good is separated from his biological parents and becomes a legitimate child of his adoptive parents, he has all the rights that are related to adoptive parents. This means the adoptive child cannot marry the other adoptive child or real child of his adoptive parents.
Adoption to be regulated by Ch-2 i.e. Adoption (sec.5 to 17) if any adoption made in contravention of ch-2 shall be void.
Who can adopt a child?
To adopt a child, the person must be a Hindu and have the capacity to adopt. A married or unmarried male, a married or unmarried female, widow, divorced women, women whose marriage is dissolved, unchaste women, NRI may adopt a child.
Case-
- Sita Bai v/s Ram Chandra (1970) SC, in this case Court held that a child adopted by the widow will be deemed to be a child not only of the widow but also of the deceased husband of the widow.
- Kishori Lal v/s Chalti Bai (1959) SC, the honourable Supreme Court held that the adoption is to be proved as a fact and the burden is on the person who asserts so.
Conditions for a valid adoption
Persons adopting to have capacity and right to take in adoption. Under section 7 of the tact requirements are given for a male to adopt a child and under section 8 of the act requirements are given for a female to adopt a child.The requirements are-
- Sound mind
- Attained a age of majority
- Consent of Husband or wife living
Who can be adopted?
Under section 10 of the act there are some conditions given for a person to be adopted
- The child should be Hindu
- The child is not adopted before.
- The age of the child is below 15 years.
- The child should not be married.
Capacity of person giving in adoption–
Sec 9 of the act deal with the capacity of a person giving in adoption. The father and mother have the equal right to give the child in adoption. The consent of both father and mother is required to give their chid in adoption.
If guardian want to give the child for an adoption or want to adopt the child then the guardian required the permission of Court. The court give the permission if the parents of the child-
- Dead
- Renounced the world
- Abandoned child
- Unsound mind
- Parentage of child is unknown
Compliance of other conditions for a valid adoption–
Sec.11(i) deals with adoption of a son
The act states that adoptive parents must not have Hindu son, grandson, great grand son, living at the time of adoption whether by legitimate blood relation or adoption.
Section 11(ii) deals with adoption of a daughter
The act states adoptive parents must not have Hindu daughter, son’s daughter, living at the time of adoption whether by legitimate blood relation or adoption.
Section 11(iii) & (iv) says if a male wants to adopt female child, then there is a minimum 21 year of age difference or if a female wants to adopt a male child,then the adoptive person (male/female) must be 21 year older than person being adopted.
Other conditions-
Section 11(v) -Simultaneous adoption of same child by 2 or more person not allowed.
Section 11(vi) – states that a child that one wants to adopt must have been given up for adoption as per the guidelines of this act, by their biological parents or guardian.
The Section further states that the child shall be given up for adoption with the intention to transfer him/her from their biological family to the adoptive one.
In the case of an abandoned child or whose parents are unknown, the intention must be to transfer him/her from the place or family that they have been brought up to their adoptive family.
- L.S. Kothari v/s S.R. Kumar (1961) SC – In this case the honourable supreme court held that ceremony of giving and taking child is essential for the valid adoption.
Can adoption be cancelled?
the adoptive father or mother or any other person or natural parents nor the adoptive child can renounce his or her status as such and return to family of his birth.
In Sandhya v/s UOI, [1998] Bombay. – The Bombay High Court has held that the provisions of section 11(i) & (ii) are not violation of article 14 &21 of constitution as it was contended that it discriminated between parents with any number of children of same sex and parents prevented from taking any child of same sex in adoption.
Effects of adoption–
As per the Act, an adopted child will be considered the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. From the date of adoption, all the relations of the child in the family of his or her birth will be considered to be severed and replaced by those created by the adoption in the adoptive family. He/she must not have an incestuous relationship with anyone from their biological family, and should not marry anyone from their birth family. The rules of the Hindu Marriage Act,1955 regarding ‘sapinda relation’ shall be applicable to them towards their birth family. Any property which entrusted to the adopted child before the adoption will 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 will not divest any person of any estate which vested in him or her before the adoption.
Maintenance under the Act-
Maintenance is an amount which is given in the form of financial assistance to either of the party. Maintenance has been described in the definition clause of the act i.e., Section 3(b) as something that can provide for food, clothing, shelter, education and medical expenses. Basically, it is financial support paid by a husband or a father that covers all basic necessities of life. The section also says that if the maintenance is to be provided to an unmarried daughter, it shall also cover all the reasonable expenses required in her day-to-day life till the day she gets married.
Under Hindu Adoption and Maintenance Act the following persons are entitled for the maintenance-
- Wife
- Widowed daughter in-law
- Children and aged parents
- Dependents of deceased
Maintenance of wife-
wife can get maintenance under-
- Hindu Marriage Act,1955(under section 24 & 25)
- CrPC,1973(under section 125)
- Hindu Adoption & Maintenance Act,1956.
Section 24 of the Hindu marriage Act of 1955 says either of the wife or the husband request for the interim maintenance. The interim maintenance is given during the pendency of the proceedings. It is the amount given to the spouse for self-support who is a financially weak party to cover the cost of litigation and enable him or her maintenance during such pendency. Maintenance to spouse is given on the basis of that either of them has no independent source of income. The amount is not specified, the court used its discretion to decide it. At the time of deciding maintenance, income of petitioner and respondent should be taken into consideration. Court will order the respondent to pay petitioner the expenses of proceeding. Court also orders to pay maintenance monthly during proceeding. No independent application can be filled under this section.
Chitra Lekha v/s Ranjit Rai, (1977)- In this case it has been held that the object behind section 24 is to provide financial assistance to the indigent spouse to maintain herself or himself and also have sufficient funds to defend or carry on the litigation.
Section 25 of the Hindu Marriage Act,1955 talks about the permanent alimony and maintenance. This is given on the application made to the court by husband or wife for the purpose [ application with respect to sec. 9 to 13]. The court orders such maintenance at the time of passing of decree or any subsequent time (any time after passing decree). Court awarded the maintenance through the method of gross sum or monthly sum or periodical sum.
Consideration to be kept in mind by court while granting maintenance-
- Respondent’s income and property
- Applicant’s income and property
- Conduct of the parties
- Other circumstances of case
Variance, modification & recession of maintenance order by court-
On the change in the circumstances of either party ( if the income of party increases)
Sec.25(3) if either party has remarried
If wife unchaste or husband commit Adultery
amount of Maintenance depends on-
- means and conduct of spouses
- depend upon the duration of marriage
- Education
- Support of children
- Spouses earning capacity
- Other reasonable ground
Section 26 of the Hindu Marriage Act,1955 deals with the custody of children. This section is amended by the Hindu Marriage (Amendment) Act,1964. Later on proviso to Section 26 inserted by the Marriage Laws (Amendment) Act,2001.
In the Case of Payal Agrawal v/s Deepak Garg
The court held that-
- The application can be made in any matrimonial proceedings under the Act.
- The court may pass orders during the pendency of matrimonial proceedings or after passing of decree granting matrimonial relief of minor children on the basis of custody, maintenance and education of the children.
- The court are guided by the principle of ‘welfare of the child’
- The court orders can be varied, revoked or suspended from time to time even after termination of matrimonial proceeding.
- Wishes of the child need to be taken into consideration.
- Application for custody of child must be disposed off within 60 days from the date of service of notice on the respondent.
Section 27 of the Act is attracted only when the property presented at or about the time of marriage is alleged to belong jointing to both the spouses. Section 27 allows the court to divide property presented to them jointly at the marriage between the spouses. The main objective of section 27 is to save the wife from roaming to different courts for settling property disputes which are integral part of matrimonial conflict problems. Relief under section 27 is ancillary to the main proceeding no order under section 27 can be passed if the relief in the main proceeding is denied.
Section 18 of Hindu Adoption and Maintenance Act,1956 only wife can get maintenance during subsistence of marriage.
Section 18(1) – a Hindu wife shall be entitled to be maintained by her husband during her lifetime.
Section 18(2) – it lays down the grounds on which a wife can claim separate residence from her husband without forfeiting her right to maintenance
Grounds of separate residence for wife-
- Desertion
- Cruelty
- Virulent leprosy (omitted now- by personal laws amendment Act,2019)
- Another wife living
- Keeping concubine
- Ceased to be a Hindu
- Other justified reasons.
Section 18(3) – when wife not entitled to claim maintenance or separate residence, there are 2 grounds for it-
- When wife ceases to be a Hindu, wife converted her religion
- When she is unchaste and guilty of persistent adulterous conduct.
CrPC,1973-
Section 125- Maintenance of wife who is unable to maintain herself. Wife will be entitled to maintenance from her husband if husband has sufficient means but he neglects or refuses to do so.
In the following cases wife will not be entitled to claim maintenance if-
- She is living in adultery
- Refuse to live without reasonable ground
- Wife get remarried
- Obtained dower under customary law
- Waive her right of maintenance
- Living separately by mutual consent by agreement
Maintenance of widowed daughter- in- law –
Under section 19 (1) A Hindu wife, shall be entitled to be maintained after the death of her husband by her father-in-law
Provided and to the extent that
- She is unable to maintain herself out of her own earnings or other property or,
- Where she has no property of her own, is unable to obtain maintenance-
- From the estate of her husband or her father or mother,or
- From her son or daughter, if any, or his or her estate.
Maintenance of children and aged parents-
- A Hindu is bound, during his or her life-time, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
- A legitimate or illegitimate child may claim maintenance from his or her mother so long as the child is a minor.
- The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. Explanation—In this section “parent” includes a childless step-mother
Maintenance of dependants-
- The heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased.
- Where the dependant has not obtained by testamentary or instate succession, any share in the estate of a Hindu dying after the commencement of this Act, to maintenance from those who take the estate.
References-
Cases-
- Smt. Sita Bai and Anr. v/s Ram Chandra AIR 1970 SC 343
- Kishori Lal v/s Chalti Bai AIR 1959
-
- L.S. Kothari v/s S.R. Kumar AIR 1961
- Sandhya v/s UOI, [1998] Bombay
- Chitra Lekha v/s Ranjit Rai, AIR 1977 Delhi 176
- Payal Agrawal v/s Deepak Garg
Online sources-