ADOPTION

ADOPTION UNDER HINDU LAW

Historical Perspective
Since the Vedic period, Hindu society has given a lot of importance to male child. It was said
that a male child saves the father from 'put' hell, hence the male child is called Putra. This
was the main reason which has prompted the son-less to adopt a male child.

Manusmriti says that when the natural father and mother give wholeheartedly their son with
the offering of water to another person in distress, it is called Dattak.

Vashistha has given several guidelines on dattak. It says that the father and the mother of an
offspring have complete right on selling or giving the offspring to another. A Dattak cannot
be taken from the person who has only one son. A child whose kinsmen are not known
cannot be taken as dattak. A woman had no right to adopt.

Sounaka has said metaphorically that a Dattak son must be a reflection of the father, which
means that a Dattak can only be taken from a mother whom the person could have married
before her marriage. Thus, one could not adopt doughter's son, sister's son, or mother's sister's
son.

Thus, the practice of Dattak in the old days had been practiced mostly for religious reasons.
This is also evident from the fact that only a male child was to be adopted because only he
can perform the religious duties for the father. Slowly, the secular reasons such as
continuance of the family name also became important. More recently, ulterior motives such
as changing the course of inheritance of property has also prompted people to adopt.

Based on the above three authors and many other customs, the Dattak ceremony primarily
involved a Dattak grahan, i.e. the actual giving and taking of the child and a Dattak homam.
However, there were several controversies because there was no one standard rule. So, in
1956, the Hindu Adoption and Maintenance Act was enforced which standardized as well as
modernized the rules and process for adoption.

Some important features of this act are:

1. Adoption has been made a secular thing. There is no necessity of any religions
ceremonies or other religious aspects.
2. Both a man and a woman can adopt on their own right.
3. Both a boy or a girl can be adopted.
4. Orphans, out of cast children, or children in close relation, can also be adopted.
5. Widow, widower, and bachelors can also adopt.
6. In the case of Naidu vs Naidu AIR 1970, SC has held that the court need not look
into the motives of adoption.

Requisites for Adoption

Section 6 of the HAM Act 1956 lays down the following 4 requirements
 1. The person who is adopting must have the capacity and the right to adopt.
2. The person who is giving the child in adoption must have the capacity to give.
3. The person who is being adopt must be eligible to be adopted.
4. The adoption must satisfy all the rules given in this act.

Section 7 describes which Hindu Male is capable of adoption:

1. Any Hindu male who has attained the age of majority and who is of sound mind can
adopt.
2. If he is married, he must take consent from his wife. If he has multiple wives, consent
from all the wives is required. In the case of Bhooloram vs Ramlal AIR 1989, MP
HC has held that if the consent of the wife living with the husband is obtained but the
consent of the wife living away has not been obtained then the adoption is void.
3. A wife's consent is not required is the wife has completely renounced the world and
has become a Sanyasin, has changed her religion and has ceased to be a Hindu, or has
been proven by a competent judge to be mentally unsound.

Section 8 describes which Hindu Female is capable of adoption:

1. She must be a major and must not be mentally unsound.

2. She is unmarried, is a widow or a divorcee. In the case of Vijayalakshamma vs B T
Shankar, AIR 2001, SC has held that consent from a co-widow is not required
because a widow can adopt on her own right.
3. A married woman is allowed to adopt only if the husband has renounced the world
completely, or is of unsound mind, or has ceased to be a Hindu.

This is a big change from pre-act situation. Earlier, a woman had no right to adopt.

Section 9 describes who has the capacity to give a child in adoption

1. Only the natural father has the right to give a legitimate child in adoption. However,
the father must get consent from the natural mother unless the mother has been
declared by a competent court to be of unsound mind, has renounced the world, or has
ceased to be a Hindu.
2. If the father is mentally unsound, or has renounced the world, or has ceased to be a
Hindu, or is dead, the mother can give the child in adoption.
3. Only the mother of an illegitimate child has the right to give the child in adoption.
However, she cannot adopt the child herself because a giver cannot be taker at the
same time.
4. If both the natural mother and father are dead, or have renounced the world, or have
abandoned the child, or are of unsound mind, a guardian, testamentary or court
appointed can give a child in adoption, including to the guardian himself, upon prior
permission of the court.
5. While granting permission, the court must see the welfare of the child and the wishes
of the child depending on the child's age.

In the case of Dhanraj vs Suraj, 1981 SC held that guardian includes - de jure and de facto.
Thus, a manager or secretary of an orphanage, or the person in whose case the child is, of the
person who has brought up the child can give the child in adoption.
Section 10 describes who is capable of being adopted

1. The child must be a Hindu.

2. The child must not have already been adopted.
3. The child must be unmarried. However, if a custom to the contrary exists, such an
adoption may take place.
4. The child must be less than 15 yrs of age. However, if a custom to the contrary exists,
such an adoption may take place.

There is no restriction on who can be adopted regarding Sapinda relationships. Even a

daughter's son, or sister's son can be adopted.

Section 11 describes some other conditions for a valid adoption

1. If a male child is being adopted, the person who is adopting must not already have a
son, son's son, or son's son, whether natural or adopted.
2. If a female child is being adopted, the person who is adopting must not already have a
daughter or son's daughter.
3. If a male is adopting a female child, then their age difference must be greater than 21
yrs.
4. If a female is adopting a male child, then their age difference must be greater than 21
yrs.
5. Two persons cannot adopt the same child.
6. The actual giving and taking of the child must happen. Only mere intention of giving
and taking is not enough. The child must be transfered from the home of the natural
parents, or in case of orphans, from the place he grew up, to the adoptive parent's
home. The ritual or ceremony of Dattak homam is not necessary.

In the case of Sandhya Supriya Kulkarni vs Union of India, AIR 1998, these conditions
were challenged on the ground that they violate fundamental rights, however, SC held that
personal laws do not fall under the ambit of part III of the constitution.

Effects of Adoption

Section 12 says that an adopted child is deemed to be a natural child of his adopted parents
for all purposes. All relations with the natural parents and family are severed and new
relationships with the adopted parents are established. Only exception is that the adopted
child cannot marry anybody from his natural family in contravention of Sapind and
prohibited relationships.
It further says that the adopted child is not divested of his property that has vested in him
before adoption and that an adopted child cannot divest anybody of his vested property after
adoption.

An important change from the old law here is that the concept of "relating back", which
means that when a widow adopts a child the adoption is considered to be done from the date
the husband died, has been abolished. However, in the case of Sawan Ram vs Kalawati
AIR 1967, SC has held that the deceased father is sill considered the adoptive father.

Section 13 says that subject to any ante-adoption agreement, the adoptive parents do not lose
their right of alienation of their property after adoption.

Section 14 describes the position of mothers in certain situations:

1. When a male adopts with the consent of the wife, the wife becomes the adoptive
mother.
2. If a single adoptive father later marries, the wife of the adoptive father becomes the
step mother.
3. If a single adoptive mother later marries, the husband of the adoptive
mother becomes the step father.
4. If an adoptive father has multiple wives, the senior most by marriage, not by age, wife
becomes the adoptive mother and other wives become the step mothers.

Section 15 says that a valid adoption cannot be canceled either by the adoptive father or
mother. Neither can the adopted child renounce the adoptive parents and go back to the
family of his birth.

Section 16 says that whenever any document made under any law in force at the time,
purporting to record an adoption, and has been signed by the giver and taker of the child, is
produced before the court, the court shall presume that the adoption has been made in
accordance with the provisions of this act unless and until it is disproved.

In the case of Pentakota Satyanarayana vs Pentakota Seetharatham AIR 2005 SC, the
plaintiff brought a suit for partition and possession. However, he failed to provide any proof
of the adoption. His adoptive father was estranged from adoptive mother and the adoptive
mother had asked for maintenance for herself but not for the adoptive son. There was no
document or agreement. The plaintiff could not provide any essential details such as date of
adoption or fixing of Muhurtam etc. Thus, SC held that there was no adoption and the alleged
adopted son had no right in the property.

Section 17 forbids receipt of any payment as a consideration for the adoption. If any such
payment is taken, he shall be punishable by 6 months imprisonment and/or a fine or both.

ADOPTION UNDER MUSLIM LAW

Muslims do not have a codified law for adoption. Therefore, till 2000 they could take in chils
as guardian under the Guardianship and Wards Act of 1890 which gives very
limited rights.

However, with the enactment of the Juvenile Justice Act (JJA) in 2000, and guidelines issued
by the Central Adoption Resource Agency established by the Government of
India to facilitate adoption, every person who is otherwise eligible, no matter what his/her
religion, is free to adopt an orphan child.

JJ Act was passed with the express purpose of facilitating the rehabilitation of orphans and
abandoned children. The Act lays down that an orphan or an abandoned child who has no
family to take care of him/her, has no religion. Therefore, a person of any religion including
Muslim can adopt such a child.

Case on point-
Shabnam hashmi v. Union of India (2014) 4 SCC 1)

In this landmark judgment, the Supreme Court ruled that any person can adopt a child under
the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of religion he or
she follows and even if the personal laws of the particular religion does not permit it.

The court turned down the plea for declaring the right of a child to be adopted and right of a
parent to adopt a fundamental right under the Constitution saying that such order cannot be
passed at this stage in view of conflicting practices and beliefs. Terming the JJ Act a "small
step towards formation of a uniform civil code", the court said: "A person is always free to
adopt or choose not to do so and, instead, he follows dictates of the personal law. The JJ Act
is a small step in reaching the goal enshrined by Article 44 of the Constitution which
prescribes a uniform civil code." . "The JJ Act 2000 is a secular law enabling any person,
irrespective of the religion he professes, to take a child in adoption. It is akin to the Special
Marriage Act 1954, which enables any person living in India to get married under that Act,
irrespective of the religion he follows. Personal beliefs and faiths, though must be honoured,
cannot dictate the operation of the provisions of an enabling statute"