INTRODUCTION
Adoption is the legalized recognition of a person as son.According to Hindu notions, a son is necessary to a person not only onl y to continue the linage but also to offer oblations to the manes or ancestors to the fourth degree. The person p erson adopted has all the privileges of a natural born son except there was a reduction in the share of property, different according to different schools, if a natural son was born subsequent to adoption this was held in Raghunath Behera v. Balaram, AIR 1996 Ori. 38. On adoption, adoptee gets transplanted in adopting family with the same rights as that of the natural born son. Adopted child becomes b ecomes coparcener in the Joint Hindu Family property after severing all his ties with natural family this was held in Basavarajappa v. Gurubasamma, (2005) 12 SCC 290. Some judges hold that the object of adoption adoption is twofold: to secure performance of one‟s one ‟s funeral rights and to preserve the continuance of o f one‟s linage this linage this was held in Inder Singh v. Kartar Singh, AIR 1966 Punj. 258. Under Hindu law, there were many rules relating to adoption which could be supported only on the basis that adoption was a sacramental act. For instance the following rules could only onl y be supported only on this basis: the adopted son must be a reflection of a son (saunaka): this prevented the adoption of orphans and illegitimate children; daughter could not be adopted: no one could have more than one adopted son; one could not adopt a child whose mother one could not marry when she was a maiden; thus a daughter‟s son or sister‟s son could not be adopted as one could not marry his sister or daughter. dau ghter. The same seems to be the reason for the rule that when a widow adopted a son, it was always deemed to be adoption to her deceased husband. The principle is responsible for the doctrine of ”relation ”relation back”. The Hindu Adoptions and Maintenance Act, 1956, has steered clearly off from all religious and sacramental aspects of adoption and has made adoption a secular institution and secular act, so much so that even a religious ceremony is not necessary for adoptions. Under the legislation there cannot be two types t ypes of adoptions, one purely secular and the other sacramental. All adoptions after 1956 are secular, and to be valid, must conform to the requirement of the Act.
Requi Requi rements rements for a vali vali d adoption adoption
Section 6 enumerates the requisites of a valid adoption. It lays down that no adoption shall be valid unless the person adopting has the capacity as also the right to take in adoption; the person giving in adoption has the capacity to do so; the person adopted is capable of being taken in adoption, and the adoption is made in compliance with the other conditions mentioned in Chapter II. In the Hindu law the requirements for a valid adoption. The Act reads:1.The person adopting is lawfully capable of taking in adoption 2.The person giving in adoption is lawfully capable of giving in adoption 3.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 datta homan (oblation to the fire) has been performed. Howeve r this may not be essential in all cases as to the validity of adoption. Who M ay Adopt Adopt
“Unsoundness of mind” relates to general condition of mind. No adjudication of insanity by a court is necessary. And all the conditions of insanity including epilepsy, idiocy and lunac y will come under “unsoundness of mind”. This was held in Gopi v. Madan, 1970 Madan, 1970 Raj 190. A Hindu male or female, married under the special marriage Act,1954 or whose parents p arents have married under the act, has also capacity to adopt. If the marriage under the special marriage act is between to Hindus, the disabilities laid down under section 19,20 and 21 do not apply. Adoption by Hindu male section 7:- Any 7:- 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 t he 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 th e preceding provision. In Ghislal v. Dhapubai.(2011) 2 SCC 298: 2011 SC 644, it was held that consent should either be in writing or reflected by positive act voluntarily and willingly done b y her. If the wife take parts in the performance of ceremonies of adoption, her consent will be implied, unless she pleads fraud or force. But in her absence consent cannot be implied, this was held in Deen Dayal v. Sanjeev Kumar, 2009 Raj 122. If a Hindu male adopts a female child, he must be senior to her h er by atleast 21 years, otherwise the adoption will be void. It was held in Section 11(iii) Adoption by Hindu male section 8:- Any 8:- Any female Hindu:1.who is of sound mind, 2.who is not a minor, and 3.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. A female Hindu who is of a sound mind and has completed the age of eighteen years can also take a son or daughter in adoption to herself and in her own right. After the Personal laws(Amendment) Act 2010, a female‟s right to adopt has been brought at par with the male‟s rights. It has been held in Vijaylakshamma v. B.T. Shankar(2011) SC 1424, that where a widow adopts a child, she need not take consent of a co-widow because she adopts the child in her own capacity. After death of husband she can adopt a son and a daughter, provided that she does not have one of her own. An unmarried woman also has a capacity to adopt. But married women cannot adopt without the consent of her husband. If she is leading a life of divorcee, but not actually divorced even then husband‟s consent will not give her capacity, it was held in Brajendra singh v. state of Madhya Pradesh, 2008SC 1056
If a female adopts a male child, she must be senior to the child ch ild by atleast 21 years,section 11 (iv) Other conditi ons for a vali vali d adoption adoption (Section (Section 11)
The other requirement for the adoption to be rendered as valid are that while adopting a child one must take into consonance and consideration the following points. 1.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; 2.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; 3.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; 4.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; 5.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. Who m ay give in Adoption section9
Under the old Hindu law, only father or Mother could give the child in adoption. Before 1956, the father‟s power to give his son in adoption was absolute and he could give his son in adoption was absolute and he could give the child in adoption even e ven if his wife dissented from it. After the father, the mother could give the child in adoption. No one else could give the child in adoption, not even the guardian. The father: - the father alone if he is alive shall have the the right to give in adoption, but such right 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
The mother: - the mother of an illegitimate child has power to give the child in adoption and no
question arises of putative father‟s consent. consent. Under the Act the mother of a legitimate child can give the child in adoption during the life-time of the father only in the following cases: (a) if the the father has ceased to be a Hindu, (b) if he has finally and completely renounced the world wo rld ,or (c) if he has been judicially declared to be of unsound mind. But mother has the power to give her legitimate child in adoption after the death of the father. The guardian: - the term „guardian‟ includes both de jure and de facto guardians. A guardian
can exercise the power in following cases: (a) If both the parents are dead, (b) if parents have finally and completely renounced the world,(c) parents have been judicially declared to be of unsound mind, (d) if parents have abandoned the child, (e) if the parentage of the child is not known. When the guardian exercises power of giving the child in adoption, ad option, prior permission of the court is necessary. If the child is capable ca pable of expressing his wishes, his wishes will taken into account, though court may pass an order contrary to the wishes of the child as welfare of the child is of paramount consideration. Who may take in adoption adoption
Under the modern law, requirements are as under: 1. Two persons cannot adopt the same child 2. Child must be a hindu:- it is necessary that the child to be adopted must be a Hindu. Therefore, adoption of a Muslim child by b y a Hindu is not allowed under the act, this was held in Kumar sursen v. State of Bihar, 2008pat. 24 3. Nearest sapinda and identity of caste:- according to the Dattaka chandrika and Dhattak Mimansa, only the nearest sapinda could be taken in adoption. But this was considered merely a recommendatory rule and adoption of remoter relation was valid under the old law. So it is under the modern law. 4. Orphan, foundling and abandoned child:- under the old law, an orphan, foundling or abandoned child could not be adopted. This state of law was obviously ob viously unsatisfactory in the modern context.tenance
5. The child whose mother could not have been married by adopter. 6. The age of a child:- the Hindu Adoption and Maintenance Act lays down that the child must not have completed the the of fifteen years. Thus a child can be adopted upto the age of 14 years and 364 Days. 7. Married child:- Before 1956, the adoption of a married child was invalid throughout India except Bombay and among Jats 8. Lunatic child may be validly adopted. 9. Daughter :- under old Hindu law, a female child could not be adopted as adoption of daughter did not confer any spiritual benefits on the adopter. Under the modern Hindu Law, this bar has been lifted and a Hindu is free to adopt a daughter, though he cannot adopt more than one daughter 10. Illegitimate child:- under old Hindu law, Adoption of an illegitimate child was not permitted, but under new Hindu law it is permitted. 11. Two son and two daughters:- under the Act, no person can adopt more than one son or more than one daughter. A person may adopt one son and one daughter.
