Provisions For Adoption In Indian Family Laws
Only Hindu law recognizes adoption. However, the adoption and appointment of the son are allowed in some communities by custom.
Hindu law of adoption has now been codified in Chapter II of the Hindu Adoptions and Maintenance Act, 1956.
Before 1956 it was a moot point whether adoption in Hindu law was a purely secular act or a religious act.
That controversy no longer exists and adoption under modern Hindu law is essentially a secular act.
Hindus perfected the institution of adoption so well that the distinction between a natural son and an adopted son was almost blurred; the distinction was made only between an adopted son and a subsequently born natural son.
That distinction has also been done away with. Adoption is based upon a legal fiction recognized for the furtherance of individual interest.
Now it is also used for the furtherance of the social interest of providing a home to orphans, and to destitute and abandoned children. The law of adoption enables a childless person to have a child and also enables a parentless child to have a parent.
Hindus refined the institution and in the past held the view that an adopted son must bear the reflection of a natural son and laid down many rules to enable an adopter to achieve that aim. According to Hindu law adoption means removal of the child from the natural family and its transplantation in the adoptive family so much so that all his ties with the natural family are broken except the blood relationship for the purpose of marriage, and corresponding ties in the adoptive family come into existence.
He is not merely related to adopters, but he is also related to all relations both on maternal and paternal sides. An adoption validly made cannot be canceled. Nor can an adopted child renounce its adoptive parents and return to its natural family.
An adopted child can also not be again given in adoption.
Old Hindu law did not permit the adoption of girls except by custom. A female was also not allowed to adopt a child except in the Mithila School where she could do so in kritrima form. Now adoption of both a male and a female child is permitted. But one cannot still adopt more than one son or one daughter. Under Hindu law, any Hindu male or female who is a major and of sound mind has the capacity to adopt. If a Hindu male adopter is a married person, the consent of the wife is essential, and if he has more than one wife, consent of all of them is essential. However, the consent of the wife may be dispensed with if she has renounced the world or has ceased to be a Hindu, or has been declared to be of unsound mind by a court of law. A married woman cannot adopt a child even with the consent of her husband.
However, in case the husband has ceased to be a Hindu, has renounced the world, or has been adjudged as of unsound mind, she can adopt. After the death of her husband also she can adopt. A Hindu can adopt a male child only when he or she has no son, son's son or son's son's son, and a female child when he or she has no daughter or son's, daughter. If a Hindu adopts a child of the opposite sex, he or she must be senior to the child by at least twenty-one years.
Two persons, unless they are husband and wife, cannot adopt the same child. Under the old Hindu law, only parents have the capacity to give the child in adoption. Under modern Hindu law, a guardian can also give a child adoption. So long as the father is alive, he alone has the right to give the child in adoption though he can do so only with the consent of the mother of the child. After the father, the mother has the capacity to give the child in adoption. However, the mother may give the child in adoption even during the lifetime of the father, if the father has ceased to be a Hindu, has renounced the world, or has been adjudged as of unsound mind. Father does not mean adoptive father, stepfather, or putative father.
Mother also does not mean adoptive mother or step-mother. The mother of an illegitimate child can give the child in adoption and consent of the putative father is not necessary. His dissent is immaterial. After the parents, the guardian can give the child in adoption; the guardian includes both dejure and defacto guardian. Guardian can also give the child in adoption if parents have renounced the world or have been declared to be of unsound mind, or have abandoned the child.
A child, whose parentage is not known, as a refugee child or foundling, can also be given in adoption. An illegitimate child can also be adopted. Adoption can be made only of a Hindu child who is not already an adopted child. It is also required that the child should not have completed the age of fifteen years and should not have been married. But if custom permits the adoption of a married child or a child of fifteen or above, then such an adoption will be valid. Under Hindu law when a parent gives the child, no adoption order of any court is required.
The act is regarded as essentially a private act. But when the guardian proposes to give the child in adoption, an order is necessary. The court will not pass an order unless it comes to the finding that the proposed adoption is for the welfare of the child. The court will also see that no bargain is involved in adoption. The only formality that is required for adoption is the ceremony of giving and taking. The ceremony of Datta Homa or any other religious ceremony is no longer necessary. The registration of adoption is also not necessary though parties are free to execute a registered deed. The Act lays down that a registered deed raises a presumption that the adoption has been validly made.
The Hindu Adoptions and Maintenance Act lays down that adoption will be valid from the date it is made thereby abolishing the doctrine of relation back. It also lays down that the child will not be divested of any property vested in him or her before he or she was given in adoption. Similarly, no person will be divested of the property already vested in him or her by reason of the adoption. It further lays down that in case a person having more than one wife adopts, the senior wife (senior by marriage) will be the adoptive mother and the rest will be the step-mothers of the adoptive child. When a bachelor, a widower or unmarried woman, or a widow adopts a child, and, subsequently marries, the spouse will be the step-parent of the child.
The Act does not lay down the relationship of the child with the ex-spouse, such as a divorced spouse, deceased spouse, spouse of a void marriage declared null and void, and spouse of an annulled voidable marriage. Nor does it lay down the relationship of the child in those cases where a married person adopts a child dispensing with the consent of his spouse because the latter has renounced the world, or ceased to be a Hindu or been adjudged of unsound mind. It is submitted that it was not necessary to provide for such cases, as there cannot be any relationship. But the Supreme Court has held that a child adopted by a widow is related to her deceased husband as an adoptive child.
So there may be a relationship by implication in the other cases also. The Supreme Court has also held that a son adopted by the widow of the deceased coparcener will also be a coparcener with the surviving coparceners of the deceased husband.