Detail of ADOPTION

ADOPTION

ADOPTION

The HAMA governs adoption and all matters related to it among Hindus. This Act has codified the Hindu Law of adoption, leaving little scope for anomalies. The Act has no retrospective effect.

Changes effected by HAMA

Capacity to take in adoption [Ss. 7 and 8]

1.      Under the Act of 1956, Sections 7 and 8 lay down that both a male and a female Hindu can adopt a son or a daughter. Of course, other conditions laid down in this regard must be fulfilled.

2.      Consent of the wife is essential under the Hindu Adoptions and Maintenance Act, 1956.

3.      Under the Act of 1956, an unmarried girl can adopt a child.

4.      Under the Act, a widow can adopt a child without the authority of her husband.

5.      Consent of the husband is not required for adoption by the wife, where the husband has renounced the world, or where he has been declared to be of an unsound mind.

Persons capable of giving in adoption

Under the 1956 Act, mother's consent is necessary for the father to exercise such a right. A minor's guardian may also give the child in adoption with the court's prior permission, where both the parents of the child are dead or have become incapable of giving consent.

Persons who may be adopted [S. 10]

1.      A female and an orphan can be adopted.

2.      Caste-bar removed. - The person adopted need not belong to the same caste as the adopter necessarily.

3.      Bar regarding mother. - The bar that the adopted boy could not have been one whose mother, the adopter, could not have married unless custom so allowed is now removed.

4.      Even a stranger adopted. - Formerly, a near relative had to be adopted in preference to a stranger. The Act has removed this restriction so that even if there are near relatives, a stranger   may be adopted.

5.      Adoptee to be under 15 years. - Section 10 of the Act provides that the adopted child must be under 15 years of age, unless there exists a custom or usage applicable to such an adoption.

6.      Illegitimacy, etc. no bar. - Illegitimacy, physical  or mental incapacity, etc. no longer disqualifies a child from being adopted by the parties where there is custom permitting the adoption of persons over 15 years of age.

7.      Adoptee to be unmarried. - The boy or girl to be adopted must not be a married person, unless there is a custom or usage to the contrary.

8.      Kritrima and Illatom forms not recognised. - Under the new Act, dwayanmushyayana form of adoption, i.e. simultaneous adoption of a child by two or more persons or Kritrima and Illatom forms of adoption are not recognised.

9.      Adoptee 21 years younger than adopter. - Under the new Act, the person adopted must be at least 21 years younger than the adopter if the latter be of the opposite sex.

Conditions as to void adoption [S. 11]

Section 11 clearly lays down that only the physical act of giving and taking is essential and sufficient.

Results or effects of adoption [S. 12]

1.      An adopted son, under Section 12, shares equally with the after-born natural son. '

2.      A valid adoption does not divest the widow of the husband's estate which is vested in her.

3.      Under Section 12 of the Act, any property which was vested in the adopted child before the adoption continues to vest in him or her, as the case may be.

4.      On adoption, the adoptee gets transplanted in the family in which he is adopted with the same rights as that of a natural son. He becomes a coparcener in the adopted family after severing all his ties with the family from which he has been adopted.

Regulation of adoptions [S. 5]

    5. Adoptions to be regulated by this Chapter. ­- (1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.

  (2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.

Characteristics of a valid adoption [Ss. 6 and 11]

1.      The person who is adopting should have the capacity and also the right to take in adoption. [S. 6(i)]

2.      The person giving in adoption should have the capacity to do so. [S. 6(ii)]

3.      The person adopted should capable of being taken in adoption. [S. 6(iii)]

4.      The adoption should comply with the other conditions as laid down in Section 11. [S. 6(iv)] Non-compliance with any of the conditions mentioned in Section 11 would make the adoption invalid.

5.       If a son is being adopted, the adoptive father or mother must not have a Hindu son, son's son or son's son's living at the time of adoption. [S. 11(i)]

6.      If the adoption is of a daughter, the adopter should not have a daughter or son's daughter, natural or adopted, living at the time of adoption. [S. 11(ii)]

7.      If the person to be adopted is a female, the adopter must be at least 21 years older than her. [S. 11(iii)]

8.      If the person to be adopted is a male, the adoptive mother must be at least 21 years older than him. [S. 11(iv)]

9.      The same child may not be adopted simultaneously by two or more persons. [S. 11(v)]

10.  The child to be adopted must be actually given and taken in adoption by the parents or guardians concerned or under their authority. And in doing so their intent must be to transfer the child from the family of its birth to the family of its adoption. If the child to be adopted is an abandoned child or a child whose parentage is not known, a similar intention to transfer the child from the place or family where it has been brought up to the family of its adoption must exist. [S. 11(vi)]

The performance of datta homam is not necessary or essential to the validity of an adoption. Where an adoption ceremony has been solemnised and the giving and taking of the child has taken place, no other proof of intention is required.

   An adoption diverts the normal and natural course of succession. The factum of adoption and its validity have to be, thus, proved by the person who seeks to displace the natural succession to property by alleging an adoption.

Capacity and the right to take in adoption [Ss. 7 and 8]

Sections 7 and 8 specify the persons who may lawfully take a son or a daughter in adoption. Section 7 enumerates, any male Hindu who 1) of sound mind, and 2) not a minor, has the capacity to take a son or a daughter in adoption.

   If his wife is living he must obtain her consent, unless

1.      she has completely and finally renounced the world, or

2.      has ceased to be a Hindu, or

3.      has been declared by a court of competent jurisdiction to be of unsound mind.

4.      In case there are more than one wives living at the time of adoption, the consent of all the wives must be obtained unless the consent of any of them is unnecessary for any of the reasons mentioned before.

The consent of the wife may be dispensed with in the following three situations:

1.      Renunciation of the world

2.      Conversion

3.      Mental unsoundness

The section permits that both a son and a daughter can be taken in adoption.

   A married female cannot adopt, not even with the husband's consent, unless her husband suffers from the disabilities referred to in the section. A husband, on the other hand, may adopt with the consent of the wife.

   In the matter of giving a child in adoption, the father has a superior right. If he is alive, he alone can give away the child, though with mother's consent. The mother may give the child in adoption only if the father is dead or has renounced the world or has ceased to be a Hindu or is of unsound mind.

Capacity of a female Hindu to take in adoption [S. 8]

According to Section 8, female Hindus have the capacity to take a son or a daughter in adoption, condition being that the female must be:

1.      of sound mind;

2.      must not be a minor; and

3.      must not be married.

4.      If she is married: a) her marriage should have been dissolved, or b) her husband must be dead or have completely and finally renounced the world or have ceased to be a Hindu or have been declared to be of unsound mind by a court of competent jurisdiction.

Thus, ordinarily a married woman cannot adopt. She cannot adopt even with her husband's consent.

    The Act gives wife a right to adopt which is her independent personal right and she is under no legal restriction of her husband.

Persons capable of giving a child in adoption [S. 9]

Section 9 gives a list of persons who are competent to give a child in adoption. namely, the father, the mother and the guardian the expressions "father" and "mother" do not include an adoptive father and an adoptive mother "guardian" means a person having the care of the person of a child or of both his person and property and includes a guardian appointed by Will of the child's father or mother and one appointed by a court.

 

 

Mother's consent when not necessary

If the father is alive, he alone has the right to give the child in adoption, but he must do so with the consent of the child's mother, unless: 1) the mother has completely and finally renounced the world, or 2) has ceased to be a Hindu, or 3) has been declared to be of unsound mind by a court of competent jurisdiction

Capacity of the mother

The mother give the child in adoption if the husband 1) is dead, or 2) has completely and finally renounced the world, or 3) has ceased to be a Hindu, or 4) has been declared to be of unsound mind by a court of competent jurisdiction.

Capacity of the guardian

It is the guardian who can give a child in adoption after the father and mother with the previous permission of the court in cases where both the father and mother of the child.

1.      are dead, or

2.      have completely and finally renounced the world, or

3.      have abandoned the child, or

4.      have been declared to be of unsound mind by a court of competent jurisdiction, or

5.      the parentage of the child is not known.

Who is eligible for adoption? [Ss. 10 and 11]

1.      The adoptee is a Hindu.

2.      The child (he or she) should not have been already adopted by someone.

3.      The adoptee is not married. A married adoptee is incapable of being adopted unless there is a custom to this effect permitting such adoption.

4.      The adoptee has not completed the age of 15 years at the time of adoption, unless there is a custom permitting such adoption.

An orphan is also eligible for adopting now. Similarly, disease, defect or deformity is no bar to adoption and an only son may also be given in adoption.

    The simple requirement of the present Act is that the child must be a Hindu. Inter-caste adoption is quite valid. Child of any relation can be adopted and it includes illegitimate children also.

Effects of adoption [S. 12]

1.      The adoptee cannot 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.

2.      Any property which vested in the adoptee before the adoption shall continue to vest in him or her 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.

3.      The adoptee shall not divest any person of any estate which had vested in him of her prior to such adoption.

Adoption has the effect of transferring the adopted son from his natural family into the adoptive family. Adoption confers upon the adoptee the same rights and privileges in the adopter's family which a legitimate son would have had.

    An adoptee is entitled to inherit in the adoptive family just like a natural                                                                                                                      son. Conversely, the adoptee's father and his relations are entitled to bequeath to the adoptee as if he were a son born  in the adoptive family. The same is the case with respect to the mother's property. If a son is born in the family after adoption, he does not lower the adoptee's position in any way. He shares equally with the latter.

Proof of adoption

On production of a valid instrument recording the adoption, the court shall presume that an adoption under the Act is made. This presumption is, however, rebuttable because mere registration of adoption is not conclusive.

   Where after adoption considerable time has elapsed during which the adoption stood unchallenged, the factum of adoption must be taken as proved, i.e. a presumption in favour of its validity would arise. The person challenging an adoption would then have to establish its invalidity.

Right of disposal of property and determination of adoptive mother

1.      Where a Hindu male having a wife, adopts a child, such a child becomes the adoptive child of the adoptive mother. [S. 14(1)]

2.      Where there are more than one wives and the adoption is with their consent, the senior most wife in marriage is deemed to be the adoptee's mother and the others to be stepmothers. [S. 14(2)]

3.      Where adoption is made by a widower or a bachelor, any woman whom he subsequently marries is deemed to be the adoptee's mother. [S. 14(3)]

4.      In case where a widow adopts a child under this Act the adoptee shall be deemed to be the son of the widow as well as of her deceased husband. [S. 14(4)]

5.      Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the stepfather of the adopted child [S. 14(4)]

Section 13, speaks of the right of the adoptive parents to dispose of their property. It makes clear that the adoptive father continues to have his power of disposal over his property even after adoption. An anti-adoption agreement may operate as an obstacle upon the adoptive father's power of disposition over his property.

Finally of adoption [S. 15]

Section 15 of the Act makes clear that an adoption once made cannot be revoked later either by the adoptive parents or the adopted child. A valid adoption made once cannot be cancelled by the adoptive father or adoptive mother leaving the child without parents. Similarly, an adopted child cannot renounce his status as an adopted child and return to his family of birth.

Prohibition of payments [S. 17]

Any one giving or receiving payment or reward in connection with adoption would be punished with imprisonment up to six months or with fine or with both. The section being crystal clear, seeks to punish trafficking in children which is an offence.