Adoption Under Hindu Law

Author: LawSphereX

Category: Family & Personal Law

Published: 2026-08-23T17:40:51.331Z

Updated: 2026-08-30T07:13:23.698Z

ADOPTION UNDER HINDU LAW

Mr. Vidit Raj Jain, Hidayatullah National Law University, Raipur

ABSTRACT

The Modern Hindu Law for adoptions which has been codified as Hindu Adoptions and Maintenance Act, 1956 deals with significant questions like the capacity to adopt, capacity to give in adoption, and who may be given in adoption. Various concepts have been brought forward as it is from the Classical Hindu Law, whereas, some concepts have been changed in accordance with the needs of modern times. Essential ceremonies and the Effects of Adoption have also been laid down in the current Act. Such changes and the current provisions have been discussed in detail in this paper by the Author.

INTRODUCTION

Adoption is the taking of a child, born to someone else, and raising the child as your own. However, the motive for doing so might differ for different people ranging from someone doing it to provide a better standard of life to the child to someone doing it for his own selfish reasons. But certain essentials need to be fulfilled for a valid adoption without which, legally the child will still retain the ties with his natural family. In India, there is no uniform law applicable to all the citizens in respect of adoptions and it thus falls in the domain of Personal Laws. For Hindus, it’s the Hindu Adoptions and Maintenance Act, 1956 (‘HAMA’) which governs the REQUISITES OF A VALID ADOPTION Section 6 of HAMA provides the 4 requisites for a valid adoption to take effect. It is a mandatory provision and not merely a recommendatory provision.

Thus, adoptions against any of such requisites will be void. Section 6(i)1 makes a difference between right and capacity to adopt. An unmarried person can have the right if he has the capacity, to take in adoption. However, a married person may not have a right to take in adoption, a child, without the permission of his spouse. Provisos to Sections 7 and 8 of the Act deals with the rights of males and females, respectively to take a child in adoption. In Pentakota Satyanarayana vs Pentakotta Seetharatnam, the court observed that according to Section 6 (iv)2 of HAMA, other conditions of that chapter need to be complied with, that are mentioned in Section 11 of the act. Thus Sections 7 to 113 of the act have to be complied with for an adoption to be valid.

CAPACITY TO ADOPT Under Classical Law, a man could only adopt and a widow can adopt only with the prior consent of the deceased husband. Thus, an unmarried woman can never adopt, as the adoption is for the spiritual benefits of the man so that after his death the son could offer oblations and rice & water to the manes periodically. He should however, not have a son within the three generations of paternal descent excluding him, at the time of the adoption. Such a prohibition exists both in the case of an adopted son as well as natural son. Under HAMA the rules for women relaxed. Under this law, if a man wants to adopt a child, he has to get the permission of his wife. But, if his wife is declared of unsound mind by a competent court, or has completely and finally renounced the world, or has ceased to be a Hindu, then such permission is not required.

If he has more than one wife then the consent of each of them is required unless the consent of any of the wife is unnecessary because of the above-mentioned disabilities. A female could adopt if she is unmarried, widowed, divorced, or if his husband is suffering from the above-mentioned disabilities. Under Classical Hindu Law, a man did not require the consent of his wife for the adoption. Even after the HAMA, a disparity was clearly visible that the married women could not adopt a son at their own will or even with the permission of their husbands. Through the Personal

1 Hindu Adoptions and Maintenance Act, 1956, § 6(i), No. 10, Acts of Parliament, 1956 (India).

2 Hindu Adoptions and Maintenance Act, 1956, § 6(iv), No. 10, Acts of Parliament, 1956 (India).

3 Hindu Adoptions and Maintenance Act, 1956, § 7-11, No. 10, Acts of Parliament, 1956 (India).

Laws (Amendment) Act, 2010 these rights of females have been brought at par with those of males. This means that a female can now adopt a child with the permission of his husband. A minor or a person of unsound mind cannot adopt under HAMA. Whereas, under the Classical Hindu Law, as per Dayabhaga, a person who has reached the age of discretion by 15-16 years can take in adoption. Under the Classical Hindu Law, the rule was that the giver cannot be the taker as well, in adoption. This rule was changed through the Hindu Adoptions and Maintenance (Amendment) Act, 1962,4 which provided that a guardian can himself adopt the child with the previous permission of the court if certain conditions are fulfilled. Earlier, the rule was that a guardian cannot himself adopt the child. Sections 7 and 8 of the HAMA deal with the capacity of males and females, respectively to take a child in adoption.

For a male or a female to be of capacity to take in adoption, they should be of sound mind and should not be a minor, that is, they should have completed 18 years of age, as mentioned in Section 3(c)5 of HAMA. The test of unsoundness of mind is whether a person is capable of understanding the implications of his act. Mere weakness of mind is not sufficient. High degree of intellect is also not required. The proviso to these sections talks about the right of males and females to take in adoption. If a person is unmarried, he might have both the right and capacity to adopt when he turns 18 and if he’s of sound mind, but if a person is married, he/she has to take their spouse's permission for taking a child in adoption. In Ghisalal v. Dhappubai, the court held that an affirmative permission on the part of the other is required for taking a child in adoption and not a subsequent one.

In Vijayalakshmamma v. B. T. Shankar, it was held that a widow can adopt a child to her deceased husband without the permission of her co-widow. A divorced woman can adopt, provided she is legally separated from her husband and not merely living her life like a divorced woman. Thus, in Brijendra Singh vs State of M. P. ,6 the wife was not allowed to take a child in adoption without her husband’s consent just because she was living separately from him from a long time. Certain restrictions are imposed on people who want to adopt a child such as firstly, if they have a male issue within the three generation in the paternal descent, then they cannot adopt another male child. The male issue could either be natural or adopted but if he's an illegitimate child then there's no such bar.

Secondly, earlier, only a male child could have been adopted but now even a female child can be adopted but if the adoptive parents have a daughter or son's daughter then they cannot adopt another female child. Thirdly, two different people cannot adopt a child and by two different people, it does not mean husband and wife but two brothers, or two sisters, or two friends, etc. Lastly, the general rule is that the person adopting the child should be a major but if the child being adopted is of the opposite gender, then the age gap between them should be at least 21 years. In Sandhya @ Supriya Kulkarni v. Union of India, the petitioner challenged the validity of Section 11(i)7 and (ii)8 of the HAMA on the ground that it violates Articles 14 and 21 of the COI, since it creates a restriction based on gender. She had a daughter an wanted to adopt another daughter.

Court rejected her submission and it was observed that law always has a purpose and here it seeks to ensure the two-child policy that India has always promoted. In Hanmant Laxman Salunke v. Srirang Narayn Kanse, the court observed that the custom father got curtailed, which were absolute to begin with, under the HAMA, where the consent of wife became necessary. Through the Personal Laws (Amendment) Act, 2010, the rights of the females were brought at par with that of the males. This meant that even the wife, with the consent of the husband had an equal right of giving the child in adoption.

The guardians have also been provided with the right of giving the child in adoption if the child is an orphan, or a foundling, or has been abandoned by both the parents, or if both the parents have completely and finally renounced the world, or if both the parents have been declared to be of unsound mind. For this the prior permission of court has to be taken by the guardian. The court while granting the permission takes into account the welfare and the interests of the child and also that no financial transactions have taken place, except for those which are allowed. In Sharadchandra v. Shantabai, the Bombay High Court held that a son born to the father before the father’s adoption, can be given in adoption as he continues to be the father of the child. A contrary ruling was made in Martland v.

Narayan,9 where the Nagpur High Court held that since the ties with the natural family is completely severed on adoption, the father does not have the right to give away the child in adoption born to him prior to his own adoption. Since the HAMA is silent on such relationship, this conflict of opinion might go on in the future as well. It is submitted that the view taken by the Bombay High Court is on the right lines, since it is only the relations on the fathers’ and mothers’ sides that are severed on the adoption of a child and not the relation of the adopted person with his child. In Teesta Chattoraj v. Union of India, it was a divorce by mutual consent. It was agreed that the parents may not care about the welfare of the child and may just want to get rid of the child.

For instance, a child born to a mother who subsequently became a widow and remarried, the step-father in this case may compel his wife to get rid of the child and give it to the first person they find. Thus, even when a child is given in adoption by the parents, prior permission of the court should be necessary. The explanation attached to Section 9 of HAMA mentions that the terms ‘father’ and ‘mother’ used in that section is used to denote only the biological parents and not the adoptive parents. This is so because adoption is an irrevocable act and the adopted child cannot be given to anyone else. WHO MAY BE ADOPTED In the Dharmashastras, it was considered that an only son cannot be given in adoption. This was considered as only a recommendatory condition during the British rule.

However, in the case of Deen Dayal vs Sanjeev Kumar, wherein the adoption took place at the adoptive mother’s home. Neither the relatives were present in the adoption nor the natural mother was a party to it. The natural also did not testify about giving the son in adoption. The ceremony of giving and taking is mandatory in adoption. The court held that there were no reasons as to why the only father gave his only child in adoption. The main purpose of adoption amongst Hindus is to ensure spiritual services for a man after his death. Therefore, ordinarily an only son is neither given nor taken in adoption. The adoption in this case was also held invalid by the court, noting the above points. The child to be adopted must be a Hindu. It does not matter to which caste he belongs, but he should be a Hindu.

Earlier, a deaf, dumb, or person with any kind of physical deformity could not have been adopted and even an orphan or a foundling could not have been adopted. But the law as it stands today is that such children can be adopted and the biggest example is of the CJI D. Y. Chandrachud adopting such children. However, even if a foundling is being adopted and he is capable of telling his name, that is, of around 2-3 years, his religion can be ascertained and if such a child is a Hindu, then only he can be adopted. In Kumar Sursen v. State of Bihar, a Muslim child was taken in adoption and thus the court Usually, only the close relatives were adopted earlier. Dattaka Chandrika and Dhattaka Mimansa also mention that only the nearest Sapinda can be taken in adoption. But this was only recommendatory in both the old and the modern law.

Earlier, only a male child could have been taken in adoption and a female child’s adoption was not valid. This was particularly so because it was believed that only a son can offer oblations and rice & water to the manes. However, there was an exception if customs permitted the adoption of a female child, for instance, among the matrilineal families in Kerala, a female child could have been taken in adoption. However, under the HAMA, such restrictions have been lifted and a Hindu is free to adopt a female child as well. But more than one female child could not be adopted and if the person taking in adoption has a daughter or a son’s daughter living at that time, he can’t take another female child in adoption. A person also cannot adopt more than one son. However, they can adopt one son and one daughter. Before 1956, a child of any age could have been adopted in Bombay and Punjab school.

After HAMA came into force the age limit was set at 15 years. This meant that only a child below

15 years of age could have been adopted. However, a custom to the contrary was recognised.

Thus, in Bombay and Punjab school a child above 15 years of age can still be taken in adoption. Also, a married child cannot be adopted but a custom to the contrary is recognised under this category as well. For instance, in Bombay school and among Jats, a married child can also be adopted. In Kondiba Rama Papal v. Narayan Kondiba Papal, it was held that a custom that a child above replies, “I give him. ” He receives him saying, “I take thee for the fulfillment of my religious duties : I take thee to continue the line of my ancestors. ” Though the actual words used by Baudhayana is not required but, still there should be an act of giving and taking. The act of giving and taking can be delegated by either or both of the parents to a third party, if need be, but the power of giving and taking cannot be delegated to someone else. In Narinderjit Kaur v.

Union of India, the adoptive mother delegated the authority to take a child in adoption to her brother through a special power of attorney. She wanted to take the child to Canada, but the passport authorities declined her to do so on the ground that the adoption wasn’t valid. The court held that the adoption was valid since it was done under the authority of the adoptive mother. In M. Vanaja v. M. Sarla Devi,11 it was held that the consent of wife and the ceremony of giving and taking are mandatory requirements. In the absence of these, the mere fact that the names of another couple were recorded as parents in the school/college would not be sufficient to prove the adoption.

CONCLUSION

In conclusion, various practices of adoption under the Hindu Law have changed from what it was to begin with under the Classical Hindu Law to now under the HAMA. However, it does not mean that total disruption of the earlier law has taken place. Only a few aspects have changed while other elements remain the same. For instance, even today when the parents are to give a child in adoption, they do not need to take the permission of the court. It is still, essentially a private act. The situation for the Guardians is not the same and they require prior permission of the court for the acts of adoption. It is submitted that, even the parents should be made to take the prior permission of the court, which ensures the welfare of the child. Usually, it is the parents who know what’s the best for their child.

However, the very fact that they are giving the child in adoption might go against the established norms of parents knowing and wishing the best for their child. It might be for the benefit of the child in some instances, but there may arise instances to the contrary as well. Mandating the prior permission of the court even for the parents will thus help in checking the welfare of the child in a better manner. On the other aspects, that is, the Capacity to Adopt and Who May be Adopted, the HAMA has

11 M. Vanaja v. M. Sarla Devi, (2020) 5 SCC 307

offered a right path that leads to equality and does not discriminate on the basis of gender. Through the Personal Laws (Amendment) Act, 2010, a step in the right direction, towards equality is taken, which has helped the females in getting an equal right on par with their male counterparts when it comes to the right of taking in adoption and the right of being adopted. Only the ceremony of Giving and Taking is essential and even Datta Homam has been made non-mandatory, which goes on to establish that adoption under the HAMA is secular and not spiritual in nature.