Adoption can serve as a wonderful remedy, not just for individuals or couples unable to conceive, but also for homeless children. This legal procedure facilitates the formation of a parental bond between individuals who are not biologically related. Essentially, it involves the act of raising and nurturing a child who is not one's own biological offspring as a member of one's own family.
The Hindu Adoptions and Maintenance Act, 1956 outlines the provisions for adoptive Hindu parents to adopt children of the Hindu faith. While the Act does not provide a precise definition for the term "Adoption," its derivation is from the Dharmasastra, particularly the Manusmriti. Manusmriti defines adoption as the act of 'taking someone's son and raising him as one's own'. However, the act expands on this definition by using the term "child" instead of "son," thereby including both male and female children.
Requisites and Essentials of Valid Adoption:
Section 6 states that all adoptions shall be considered as void-ab-initio or invalid unless:
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter-II of the Act.
Kumar Sursen v. State of Bihar, AIR 2008 Pat 24: Under section 6 the law does not recognise an adoption by a Hindu of any person other than a Hindu;
M. Gurudas v. Rasaranjan, AIR 2006 SC 3275: To prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony;
Suma Bewa v. Kunja Bihari Nayak, AIR 1998 Ori 29: Law is well settled that adoption displaces the natural line of succession and therefore, a person who seeks to displace the natural succession to the property alleging an adoption must prove the factum of adoption and its validity by placing sufficient materials on record.
Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189: Section 6 does not bar a lunatic person from being adopted.
Capacity of a Hindu Male to Adopt:
Section 7 states "Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption: Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the 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."
Capacity of the Hindu Female to Adopt:
Section 8 states, "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."
Persons Who May Be Adopted:
Section 10 provides for the Capacity of a person which can be adopted. According to this section, "No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:—
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) 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;
(iv) 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."
Conditions for Valid Adoption
According to section 11 of the Act, these are the conditions that must be met for a valid adoption:
The adoptive parent must not have a Hindu son, son's son, or son's son's son living at the time of adoption if adopting a son.
The adoptive parent must not have a Hindu daughter or son's daughter living at the time of adoption if adopting a daughter.
The adoptive father must be at least twenty-one years older than the female to be adopted.
The adoptive mother must be at least twenty-one years older than the male to be adopted.
The same child cannot be adopted by two or more people at the same time.
The child must be actually given and taken in adoption by the parents or guardian concerned with intent to transfer the child to the family of adoption.
Note: Performing Datta Homam is not necessary for the validity of adoption.
Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang Narayan Kanse, AIR 2006 Bom 123: Provision of section 11 requiring age difference between adoptive mother and adoptive son to be at least 21 years is mandatory in nature. Word ‘must' cannot be read as ‘may'. This breach is fatal to adoption;
Urmila Devi v. Hemanta Kumar Mohanta, AIR 1993 Ori 213: The defendant's father only wanted that he should be reared up by Sankar and Sasi after the mother's death and there had been no formal ceremony of adoption nor were Sankar and Sasi unfit to have children of their own, thereby negativing the adoption;
Nemichand Shantilal Patni v. Basantabai, AIR 1994 Bom 235: There was no evidence in hand that the plaintiff was actually given and taken in adoption by the parents or guardians of the plaintiff as required under section 11(vi). Adoption was held not to have taken place. The age of the plaintiff was 30 years and that of the adoptive mother 48 years six months, thereby contravening the provisions of section 11(iv) as the difference between the plaintiff and mother was only 19 years and not 21 years;
Effect of the Adoption:
According to Section 12 of the Act,
An adopted child will be considered the child of their adoptive parent(s) for all purposes starting from the adoption date.
All family ties with the biological family of the adopted child will be deemed severed and replaced by the ones created by the adoption in the adoptive family.
However, the child cannot marry anyone they could not have married if they had continued in their biological family.
Any property that the adopted child had before the adoption will still belong to him/her, subject to any obligations attached to it, including maintaining relatives in their biological family.
The adopted child shall not divest any person of any estate which vested in him or her before the adoption.
Right of the Adoptive Parents to Dispose of their Property:
Section 13 of the Act provides, unless an agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will.
No Cancellation of Adoption:
According to Section 15 of the Act, it is not possible for the adoptive parents or any other individual to nullify an adoption that has been validly made. Additionally, the adopted child cannot renounce his/her status and return to the biological family.
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