Hindu adoption law

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Adoption is the legal process of taking someone else’s child and raising him or her as your own child. Adoption of Hindu children in India is governed by the Hindu Adoption and Maintenance Act, 1956. Various conditions of a valid adoption have been provided by the Act.

Two very important conditions, which have been questioned in numerous cases, are: 1. Consent of wife for the adoption, and 2. Ceremonies of adoption. These two conditions were again questioned in the recent case of M. Vanaja vs M. Sarala Devi, where the Appellant, M. Vanaja was raised by the Respondent, M. Sarala Devi and her husband, after the death of Vanaja’s real parents. Vanaja contended that she was treated as the daughter of Sarala Devi and her husband, and provided the court with documents such as ration card and school documents etc., in which the names of Sarala Devi and her husband were provided for the names of parents. Vanaja could not prove the ceremonies of adoption (condition under Section 11 of the Act).

Sarala Devi contended that they did not adopt her, and merely raised her. She proved, by conclusive evidences, that she did not adopt Vanaja, neither did she give any consent for adoption. The Apex Court held that as no ceremonies of adoption could be proved, and the consent of wife was also not present, hence, there was no adoption and Vanaja could not be treated as Sarala Devi’s daughter.

The Apex Court has, from time to time, made it clear that for an adoption to be valid, the consent of wife and the ceremonies of adoption, both are mandatory. The provisions of the Hindu Adoption and Maintenance Act, 1956, have also laid emphasis on these two conditions under Section 7 and Section 11 respectively.

Development of Hindu adoption law

Adoption, under Hindu Law, is seen as all the more a holy observance than a mainstream demonstration. The Shastric Hindu law perceives an adopted child as being equal to a conceived child.

Under the old Hindu Law, only males were allowed to be adopted. The collective belief was that one would go to hell called Poota if they died without a son. Only the male child could prevent the father from entering Poota. By then, whether or not a male was to be adopted, constraints were reliant on Caste and Gotra. A female child could not be adopted under Hindu Law. It articulated further that the male held a privilege to take, and the consent or contrast of his wife to the proposed adoption was irrelevant.

In any case, such confinements have changed over the range of time. The number of such tendencies has dwindled as of late in the present society. The Hindu Adoption and Maintenance Act were passed after Independence as a significant part of modernizing and codifying Hindu Law. The Act, to some degree, reflects the benchmarks of value and social justice by obliterating a few (however, not all) gender-based prejudiced provisions. It became effective from 21st December 1956.

It covers any child who has been left alone by both by his father and mother, whose parentage isn’t known and who is either raised as a Hindu, Buddhist, Jaina or Sikh. Before this Act, just a male could be adopted. However, the Act provides that a female may likewise be adopted. This Act reaches out to all of India.

Essential conditions for valid adoption

Essential conditions for a valid adoption provided by the Hindu Adoption and Maintenance Act, 1956 are as follows:

  1. The Act applies to Hindus (including Virashaiva, Lingayat, and followers of Bramho, Prarthana and Arya Samaj), Jains, Sikhs and Buddhists (including converts to these religions).
  2. Anyone adopting the child should be of sound mind, and not a minor.
  3. If a male is adopting a child, and his wife is alive, then the consent of wife is required.
  4. Child is given by parents or guardians who are of sound mind and not a minor.
  5. The child getting adopted has not been adopted prior to this adoption, is of sound mind, is unmarried, and is of not more than 15 years of age.
  6. If a male child is being adopted by someone, they should not have a living son, grandson, or grandson’s son.
  7. If a female child is being adopted by someone, they should not have a living daughter of son’s daughter.
  8. If a male child is being adopted by a woman, they should have an age gap of at least 21 years.
  9. If a female child is being adopted by a man, they should have an age gap of at least 21 years.
  10. If a single parent is adopting a child, and his or her spouse is living with them, their consent is required.
  11. Ceremony of adoption has been carried out.

Consent of wife

The consent of wife for a valid adoption has been provided by Section 7 of the Hindu Adoption and Maintenance Act, 1956. The provision state that if a male adopts a child, and he has a wife who has not renounced his world, or who is not of unsound mind, or who has not ceased to be a Hindu, the consent of such wife is an essential for a valid adoption.

The provision also provides that where a male has more than one wife, the consent of all the wives has to be taken for a valid adoption. If any of them opposes the adoption, the adoption would be null and void. Another prerequisite of this proviso is that the husband and wife should have performed a valid marriage.

Points of difference from adoption laws of other religious groups in India

In the case of Mohammed Allahabad Khan v. Muhammad Ismail, it was held that there is nothing in Muslim Law similar to adoption as perceived in the Hindu System. Acknowledgment of paternity under Muslim Law is the closest way to adoption. Thus, personal laws of Muslims, Christian, Parsis, and Jews don’t recognize complete adoption. Along these lines, if an individual professing such religion wants to adopt a child, he can take the guardianship of a child under Section 8 of the Guardians and Wards Act, 1890.

  • Legal status of the person adopted

The adopted person under the Hindu Adoption and Maintenance Act, 1956, is equivalent to a biological child of the couple/person who has adopted him/her. However, the relationship between the ward and the person/couple acting as his/her guardian under the Guardian and Wards Act, 1890, is that of a guardian and ward. The adopted person cannot be treated as a child of the guardian.

  • Inheritance of property

The adopted child under the Hindu Law has rights of inheritance of property of his/her parents. Adopted child is treated equivalent to a biological child and hence gets all the rights that a biological child might get. The ward does not have any rights over the property of his/her guardians because he/she is not treated as a child, rather he/she is merely a ward of the person/couple adopting him/her.

  • Procedure of adoption

Ceremonies of adoption are a requisite for a valid adoption under the Hindu Law whereas the adoption under Guardian and Wards Act is completed by a court.

  • Age of the person being adopted

Under the Hindu Adoption and Maintenance Act, 1956, a person under the age of 15 years only, can be adopted. But in the case of Guardian and Wards Act, 1890, a person who is a minor according to the Indian Majority Act, 1875, (18 years of age as of now) can be adopted as a ward.

Conclusion

Adoption is a procedure whereby an individual assumes the parenting of another, generally a child, from that individual’s natural or legitimate parents or guardians. Legal adoption moves all rights and obligations, alongside filiation, from the natural parent or guardians.

Hindu law, as a chronicled term, alludes to the code of laws applied to Hindus, Buddhists, Jains, and Sikhs in British India. Hindu law, in the modern period, additionally alludes to the legal theory and philosophical reflections on the idea of law found in antiquated and medieval times’ Indian writings. The Hindu Adoption and Maintenance Act (HAMA) was passed in India in 1956 as a component of the Hindu Code Bills.

Old Hindu Law consisted of different disparities and gender-based biased provisions that turned out poorly with the wants and needs of society. Thus, expelling old prejudicial traditions and arrangements through the new Act has been a colossal improvement in the law of adoption for Hindus.

Authors: Aishwarya Moitra from School of Law, Sharda University, Knowledge Park III, Greater Noida and Naman Keswani from Hidayatullah National Law University, Nava Raipur.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

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