Adoption under Hindu Law

Saturday, July 15, 2017

The Shastric Hindu Law looked at adoption more as a sacramental than secular act. Some judges think that the object of adoption is two fold:


to secure one’s performance of one’s funeral rites and 2) to preserve the continuance of one’s lineage[1]. Hindus believed that one who died without having a son would go to hell called poota and it was only a son who could save the father from going to Poota. This was one of the reasons to beget a son. Ancient Hindu Shastras recognized Dattaka and Kritrima as types of sons.

In the Hindu Shastras, it was said that the adopted son should be a reflection of the natural son. This guaranteed protection and care for the adopted son. He was not merely adoptive parents, but all relations on the paternal and maternal side in the adoptive family also came into existence. This means he cannot marry the daughter of his adoptive parents, whether the daughter was natural-born or adopted. In the modern adoption laws, the main purpose is considered to be to provide consolation and relief to a childless person, and on the other hand, rescue the helpless, the unwanted, the destitute or the orphan child by providing it with parents. However, in the Chandrashekhara case [2] it was held that the validity of an adoption has to be judged by spiritual rather than temporal considerations and devolution of property is only of secondary importance.

 

Currently, the adoption under Hindu Law is governed by The Hindu Adoption and Maintenance Act, 1956

The Hindu Adoption and Maintenance Act, 1956 extends to only the Hindus, which are defined under Section-2 of the Act and include any person, who is a Hindu by religion, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,or a Buddhist, Jaina or Sikh by religion, to any other person who is not a Muslim, Christian, Parsi or Jew by religion. It also includes any legitimate or illegitimate child who has been abandoned both by his father and mother or whose parentage is not known and who in either case is brought up as a Hindu, Buddhist, Jaina or Sikh.

Adoption is recognized by the Hindus and is not recognized by Muslims, Christian and Parsis. Adoption in the Hindus is covered by The Hindu Adoptions Act and after the coming of this Act all adoptions can be made in accordance with this Act. It came into effect from 21st December, 1956. Prior to this Act only a male could be adopted, but the Act makes a provision that a female may also be adopted. This Act extends to the whole of India except the state of Jammu and Kashmir. It applies to Hindus, Buddhists, Jainas and Sikhs and to any other person who is not a Muslim, Christian, Parsi by religion.

 

Requirements for a valid adoption

In the Hindu law the requirements for a valid adoption. The Act reads,
# No adoption is valid unless
# The person adopting is lawfully capable of taking in adoption
# The person giving in adoption is lawfully capable of giving in adoption
# The person adopted is lawfully capable of being taken in adoption
# The adoption is completed by an actual giving and taking and The ceremony called data homan (oblation to the fire) has been performed.

However this may not be essential in all cases as to the validity of adoption?

 

Who May Adopt?

 

Capacity of male
Any male Hindu, who is of sound mind and is not a minor, has the capacity to take a son or daughter in adoption. Provided that if he has a wife living, he shall not adopt except with the consent of his wife, unless his wife has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind. If a person has more than one wife living at the time of adoption the consent of all the wives is necessary unless the consent of one of them is unnecessary for any of the reasons specified in the preceding provision.

Capacity of female 
Any female Hindu
a. who is of sound mind
b. who is not a minor, and
c. who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption.
Where the woman is married it is the husband who has the right to take in adoption with the consent of the wife. The person giving a child in adoption has the capacity/right to do so:
a. No person except the father or mother or guardian of the child shall have the capacity to give the child in adoption.
b. The father alone if he is alive shall have the right to give in adoption, but such right shall not be exercised except with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.
c. The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.
d. Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is unknown – the guardian of the child may give the child in adoption with the previous permission of the court. The court while granting permission shall be satisfied that the adoption is for the welfare of the child and due consideration will be given to the wishes of the child having regard for the age and understanding of the child.

The court shall be satisfied that no payment or reward in consideration of the adoption except as the court may sanction has been given or taken.

 

The person can be adopted 


No person can be adopted unless
a. he or she is a Hindu;
b. he or she has not already been adopted;
c. he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
d. he or she has not completed the age of fifteen years unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.


Other conditions for a valid adoption are fulfilled


a. if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son living at the time of adoption
b. if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter living at the time of adoption;
c. if the adoption is by a male and the person to be adopted is a male, the adoptive father is at least twenty one years older than the person to be adopted;
d. if the adoption is by a female and the person to be adopted is a male, the adoptive mother s at least twenty one years older than the person to be adopted;
e. the same child may not be adopted simultaneously by two or more parents; the child to be adopted must be actually given and taken in adoption with an intent to transfer the child from the family of birth.

 

 

 

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