Adoption: The Hindu Adoption and Maintenance Act 1956

Author: Er. Kabir Khan B.E.(Civil Engg.) LLB, LLM

Introduction:

The Hindu Adoption and Maintenance Act, 1956 is an important law in India. It explains the rules for adopting a child in Hindu families. Before this law, adoption was based on old religious customs. These customs were different in various places, which caused confusion.

This act aims to simplify and clarify adoption. It specifies who can adopt a child, who can be adopted, and the steps to follow. For example, the act says only Hindus, including Buddhists, Jains, and Sikhs, can adopt under this law. It also talks about getting permission from the spouse and the age of the parents.

The law also ensures the maintenance of family members. It helps support children, wives, and parents financially. This way, both adopted children and biological family members are taken care of.

In short, the HAM Act, 1956 makes adoption easy to understand. It protects the rights of adopted children and ensures proper support for family members.

For Students:

Question- 1. What are requisites of a valid adoption under the the Hindu Adoption and Maintenance Act 1956 ?

 or

What are the requisites of a valid adoption under Hindu Law ?

Question- 2. Who can give a child in adoption ?

                  or   Who can give and take in adoption ?

                  or   Who may be adopted ?

Essential conditions for valid adoption:

First condition: Competency of a person to be given in adoption (Section 7)

The first condition of valid adoption is that the person who wants to adopt shall be a competent person. Section 7 says that a person who adopts shall be-

(a) of sound mind

(b) not a minor

(c) require consent of his wife

Any male Hindu who meets the mentioned conditions and has the ability to adopt can adopt a son or daughter. However, if he has a wife who is alive at the time of adoption, he can adopt without her consent only if she has completely and has fully and permanently withdrawn from worldly life, ceased practicing Hinduism, or has been legally deemed mentally incompetent by a court.

Second condition: Capacity of a person to be given in adoption( Section 8):

Any female Hindu, who is of sound mind and is not a minor, has the capacity to adopt a son or a daughter, provided:

• She is unmarried, or
• If married, the marriage has been legally terminated., or
• Her husband is dead, or
• Her husband has fully and permanently withdrawn from worldly affairs., or
• Her husband has ceased to be a Hindu, or
• A court of competent jurisdiction has determined that her husband is mentally unfit.

This section grants a female Hindu the right to adopt a child under the conditions mentioned above, ensuring her independence in cases where her marriage is no longer valid or her husband is unavailable due to specific reasons.

Third condition: Qualification of a person to be given in adoption (Section 9)

1. Only the father, mother, or guardian of a child is permitted to offer the child for adoption.

2. The father alone, if he is alive, has the right to give in adoption, but only with the consent of the child’s mother unless:

• The mother has fully and permanently withdrawn from worldly life., or
• She is no longer engaged in the Hindu faith, or
• A court with appropriate authority has determined that she is mentally unfit.

3. The mother alone, if she is alive, has the right to give in adoption if:

• The father is dead, or
• He has fully and permanently withdrawn from worldly life, or
• He is no longer a practicing Hindu, or
• A court of competent jurisdiction has ruled that he is mentally unfit.

4. If both the father and mother are deceased, have withdrawn from worldly life, or have been declared mentally unfit by a competent court, or if they have both abandoned the child, then the child’s guardian can arrange for the child’s adoption. This needs to receive prior court consent.

5. Before granting such permission, the court shall be satisfied that the adoption is for the welfare of the child, due consideration being given to the wishes of the child having regard to the age and Child’s awareness.

This section outlines who has the legal right to give a child, focusing on the roles of the father, mother, and guardian, as well as the conditions under which they can give the child in adoption.

Third condition: Competency of a person to be given in adoption (Section 10):

Section 10 of the HAM Act, 1956 defines the criteria for a child’s eligibility for adoption. The provisions state that:

1. The child must be a Hindu.
2. No one must have already adopted the child.
3. The child must be unmarried, except where there is a prevailing custom or tradition among the involved parties that allows married individuals to be adopted.
4. The child must be under the age of fifteen, unless there is a custom or usage permitting the adoption of individuals older than fifteen.

This section establishes the essential conditions that must be met for a child to be legally adopted under Hindu law.

Land mark judgements on Adoption (Section 10):

1. K. K. Verma v. Union of India (1954)

Details:

• In this case, K. K. Verma challenged certain provisions of the HAM Act, specifically regarding the criteria for adoption eligibility. The focus was on the legal stipulations surrounding the adoption process and whether they adequately protected the interests of the child.

Main Points:

• The court held that for a child to be adopted, they must meet specific eligibility criteria as stipulated in the Act. This includes both the child’s qualifications for adoption and the legal status of the adoptive parents.
• The ruling underscored the necessity of strict adherence to the legal provisions outlined in the HAM Act, ensuring that the adoption process is both valid and recognized under the law.
• The court underscored that the primary focus in all adoption proceedings should be on what is best for the child.

Issues:

• The key issue was whether the adoption met the legal requirements set forth in the Act, particularly in terms of eligibility.

• The court was concerned with the welfare of the child, questioning if all necessary criteria were fulfilled during the adoption process.

Context:

• This case is significant as it highlights the judiciary’s role in ensuring that legal frameworks around adoption prioritize the child’s welfare and protect their rights.

2. Smt. Laxmi v. State of Maharashtra (1988)

Details:

• In this case, Smt. Laxmi questioned the validity of her adoption and highlighted the legal requirements that must be fulfilled for an adoption to be considered legitimate under the HAM Act.

Main Points:

• The court ruled that for an adoption to be considered valid, adoptive parents must have the legal capacity to adopt. This includes being free from any disqualifications as per the Act.
• The judgment confirmed that if a child is to be adopted, the adoptive parents cannot have a living Hindu son or daughter at the time of adoption. This was a crucial aspect of Section 10, aimed at preventing conflicts of interest.
• The court highlighted the importance of compliance with the provisions of the Act, reiterating that failure to meet these requirements would invalidate the adoption.

Issues:

• The case raised questions about the legal capacity of the adoptive parents, emphasizing the necessity for them to fulfill specific criteria for a valid adoption.
• It also addressed the implications of having living biological children in the context of adopting a new child, ensuring that the rights and responsibilities were clear and legally sound.

Context:

• This ruling was pivotal in clarifying the legal framework surrounding adoptions in India, ensuring that all parties involved understood the implications and requirements of the adoption process.

3. K. S. Ramesh v. M. Shankaraiah (2008)

Details:

• This case involved a dispute over the validity of an adoption, focusing on whether the child met the necessary conditions for adoption under Section 10 of the HAM Act.

Main Points:

• The High Court reiterated the principle that for any adoption to be valid, the child must fulfill the conditions laid out in Section 10. This includes the child’s eligibility and the legal status of the adoptive parents.
• The court ruled that if the child does not meet the conditions specified in Section 10, the adoption would not be legally recognized, emphasizing the need for compliance with legal requirements.
• This judgment reinforced the protective measures established in the Act, ensuring that the welfare of children was a paramount concern.

Issues:

• The primary issue was the competency of the child to be adopted, particularly regarding compliance with the legal criteria outlined in the Act.
• The ruling highlighted the consequences of non-compliance with Section 10, leading to the potential invalidation of the adoption and protecting the rights of the child involved.

Context:

• This judgment is crucial as it reinforces the judicial approach to ensuring that all legal standards are met in the adoption process, thereby safeguarding the rights and welfare of adopted children.

Additional conditions on Adoption: Section 11

1. Fourth condition: For Son Adoption: Section 11 (i)

If a son is adopted, the adoptive father or mother cannot have a living Hindu son, grandson, or great-grandson. This applies whether they are biological or adopted.

2. Fifth condition: For Daughter Adoption: Section 11 (ii)

If a daughter is adopted, the adoptive parent should not have any living Hindu daughters or granddaughters. This also applies to biological and adopted children.

3. Sixth condition: Age Requirement for Male Adopters: Section 11 (iii)

The adoptive father must be at least twenty-one years older than the daughter he is adopting.

4. Seventh condition: Age Requirement for Female Adopters: Section 11 (iv)

The adoptive mother must be at least twenty-one years older than the son she is adopting.

5. Eighth condition: Single Adoption: Section 11 (v)

A child cannot be adopted by more than one person at the same time.

6. Ninth condition: Ceremony of Giving and Taking: Section 11 (vi)

Land Mark Judgements on Adoption:

1. Lakshman Singh Kothari v. Smt. Rup Kanwar (1961 AIR 1378)

Introduction:

This case is an important judgment on adoption laws under The HAM Act, 1956. The case started when someone challenged the legality of an adoption. The issue was that some religious rituals, like datta homam, were not performed. The Supreme Court needed to determine if the lack of these rituals could invalidate the adoption. This was even though the act of giving and taking the child had been completed. The case helped clarify whether religious rituals or the actual transfer of the child was more important for a valid adoption. The ruling established specific guidelines regarding the giving and taking ceremony as outlined in Section 11(vi) of the Act. It highlighted the key legal steps required for adoption in modern Hindu law.

Main Points:

• The Supreme Court determined that the physical act of giving and taking is crucial for an adoption to be considered valid under Hindu law.
• The Court emphasized that the act of transferring the child physically from the biological parents to the adoptive parents is what legally constitutes adoption.
• Religious rituals like datta homam were considered secondary, and the absence of such rites does not invalidate the adoption as long as the core act of giving and taking is fulfilled.

Issues:

• Whether the failure to perform certain religious ceremonies, such as datta homam, would render the adoption void.
• The Court concluded that the essential transfer of the child through the act of giving and taking was sufficient to validate the adoption, even if the parties omitted these rituals.

2. Kishori Lal v. Mt. Chaltibai (1959 SCR Supl. (2) 805)

Introduction:

The case of Kishori Lal v. Mt. Chaltibai was a Landmark decision in Hindu adoption law. It focused on whether documents or statements of intent were enough to make an adoption valid. They brought the case to the Supreme Court because someone challenged an adoption. The main issue was that the physical act of giving and taking had not occurred, even though both sides had signed papers. The Court examined whether this ceremony could be skipped if both parties intended to adopt and had signed the documents. The ruling was important. It made it clear that the physical transfer of the child is compulsory. Paperwork alone is not enough. The Court highlighted the importance of the giving and taking ceremony in the process of adoption.

Main Points:

• The Court held that the physical ceremony of giving and taking is indispensable and cannot be substituted by legal documents or intentions alone.
• The judgment emphasized that the core requirement for a valid adoption is the physical act of transferring the child from the biological parent(s) to the adoptive parent(s).
• Because the act of giving and taking did not take place in this case, the adoption was deemed invalid.

Issues:

• Whether legal documentation, including adoption deeds or declarations, could serve as proof of adoption without the actual act of giving and taking.
• The Court determined that, without the physical ceremony, the adoption could not be legally recognized, even if other supportive evidence was present.

3. Nayak Gourishankar v. Shriram (AIR 1965 SC 293)

Introduction:

This case came to the Supreme Court to decide if missing religious ceremonies, like datta homam, could affect the validity of an adoption. The core act of giving and taking the child had already been done. One party argued that the adoption was not valid because the religious rites were not performed. The Supreme Court had to clarify the role of these rituals in adoption. The key question was whether the physical transfer of the child through the giving and taking ceremony was enough. The case focused on the legal and religious aspects of adoption. It stressed the importance of the giving and taking ceremony under Section 11(vi) and reduced the need for religious rituals.

Main Points:

• The Court clarified that the fundamental legal requirement for adoption is the act of giving and taking. While religious ceremonies like datta homam are mentioned in Hindu texts, they are not mandatory under modern Hindu law.
• The Court validated the adoption because the adoptive parents physically transferred the child, even though they did not perform the other religious rites.

Issues:

• The question was whether not performing religious rituals like datta homam could render an adoption invalid.
• The Court held that the physical act of giving and taking was sufficient, and the adoption was legally valid even if religious rites were absent.

4. Ghisalal v. Dhapubai (2011)

Introduction:

The case of Ghisalal v. Dhapubai presented a legal issue. The child had lived with the adoptive parents for several years. However, the official ceremony of giving and taking had not occurred. The adoptive parents argued that they raised the child and that he or she was part of their family. They believed this should make the adoption valid, even without the ceremony. The main question for the Court was if long-term care could replace the formal giving and taking ceremony required under Section 11(vi). The Supreme Court determined that the formal transfer is mandatory. It clarified that you cannot skip or replace the legal process for adoption by merely taking care of the child.

Main Points:

• The Supreme Court reinforced that the ceremony of giving and taking is mandatory under Section 11(vi) of H A M Act, 1956.
• The Court ruled that, despite the child living with the adoptive parents for a long time, the adoptive parents could not legally recognize the adoption without the formal act of giving and taking.

Issues:

• The question was whether the extended period of residence and care provided by the adoptive parents could legally recognize the adoption, even in the absence of the giving and taking ceremony.
• The Court concluded that adoptive parents cannot bypass the legal formality of the giving and taking ceremony, regardless of how long the child has been with them or how well they have cared for the child.

The adoption must include a ceremony that signifies the transfer of the child from their birth family to the adoptive family.

7. Tenth condition: Compliance with Other Requirements: Section 11 (vii)

The adoption must follow any other rules set out in this Act.

These conditions ensure that the adoption process is valid and legal.

Registration of Adoption: Section 16

1.Registration :

This section mandates the registration of adoption deeds.

2.Requirement for Registration:

Although registration is not compulsory, we recommend it to provide legal proof of adoption and protect the rights of the adopted child.

3.Where to Register:

You can register adoption deeds under the Registration Act, 1908.

Land Mark Judgements on Adoption (Section 16):

1. Case: Krishna v. State of Maharashtra (1991)

Introduction:

The case of Krishna v. State of Maharashtra came to the Supreme Court. It focused on the registration of the adopted child. The question was whether the absence of registration could render an adoption invalid.

Main Points:

• Validity Without Registration: The Court ruled that not having a registration does not make an adoption invalid. The main aspect is the act of giving and receiving the child. This act must be completed for the validity of the child’s status.
• Importance of Proof: The Court recognized that registration helps prove an adoption. However, not registering does not mean the adoption is not valid. Provided that the ceremony of giving and taking is carried out, the adoption stays valid.
• Ceremony’s Significance: The Court emphasized that the giving and taking ceremony is the main legal step in adoption. This ceremony is essential for establishing a parent-child bond.

Issues:

• Validity Without Registration: The main issue was if an unregistered adoption could still be valid. The Court confirmed that the legal recognition is based on the giving and taking, not just on registration.

• Legal and Family Balance: The judgment aimed to balance legal requirements with family realities. It highlighted the need to acknowledge family bonds while following legal processes.

2. Case: Dharam Chand v. State of Punjab (1986)

Introduction:

In the case of Dharam Chand v. State of Punjab, the Supreme Court looked at the rights of adopted children. The case examined whether the parties involved validly adopted the child despite not registering the adoption.

Main Points:

• Recognition : The Court decided that an adoption remains valid even if the adoptive parents do not register it. However, registering an adoption gives it stronger legal standing. Registration helps protect the rights of the adopted child.
• Child’s Rights: The judgment stated that registration is important for the rights of both the adopted child and the adoptive parents. It makes sure that the child’s rights are legally recognized.
• Encouragement for Registration: The Supreme Court encouraged families to register adoptions. This can prevent disputes and provide clarity in legal matters about parental rights.

Issues:

• Disputes Over Rights: A key issue was whether an unregistered case could lead to disputes. The ruling emphasized the need for clear legal protection for all parties involved.
• Clarifying Legal Status: The Court aimed to clarify that registration helps establish the legal status of the adopted child in the family.

3. Case: Babu Lal v. State of U.P. (2002)

Introduction:

In the case of Babu Lal v. State of U.P., the Supreme Court considered the impact of not registering an adoption. The rights of an adopted child were in question.

Main Points:

• Registration’s Role: The Supreme Court said that while registration is not mandatory, it is essential for establishing the rights of the adopted child. Registration helps clarify the legal relationship.
• Preventing Legal Issues: The Court noted that registration can prevent future disputes about the child’s rights. Documenting in such cases helps avoid confusion in legal matters.
• Need for Documentation: The judgment stressed that proper documentation and registration are important. Accurate records act as proof of the relationship.

Issues:

• Inheritance Rights: A major concern was whether lack of registration affects the child’s inheritance rights. The Court recognized that registration protects these rights.
• Legal Clarity: The ruling aimed to show that unregistered adoptions might cause confusion regarding the child’s legal status. This could lead to disputes over parental responsibilities.

Conclusion:

The HAM Act, 1956, is an important law that improves Hindu family rules. It clearly sets the steps for adopting children, ensuring the protection of their rights and the rights of adoptive parents. The law now permits the adoption of both boys and girls, something that was not always possible in the past.

The Act also focuses on maintenance. It ensures that wives, children, and elderly parents have the right to financial support. Wives can ask for maintenance if their husbands neglect or leave them. This part of the law gives women more financial security, which was not always clear before.

However, even with these improvements, some challenges remain. Many people are still unaware of their rights, and cultural beliefs sometimes stop families from following the law. Women and children might still struggle to get support because of social issues or lack of money.

In conclusion, the HAM Act, 1956, is a positive step for protecting families. But more awareness and proper enforcement are needed. This will help ensure that everyone, especially women and children, can enjoy the benefits of this law.