Analysis Of Adoption Process In Hindu Law
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Category: Family & Personal Law
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ANALYSIS OF ADOPTION PROCESS IN HINDU LAW
Raj Pandey, CMP Degree College, Prayagraj, (University of Allahabad)
ABSTRACT
This paper presents a comprehensive analysis of adoption law in India, tracing its evolution from a tradition rooted in religious and familial interests to a legal framework that increasingly prioritizes child welfare. The study examines the dual system comprising the Hindu Adoptions and Maintenance Act, 1956, which governs Hindus, Buddhists, Sikhs, and Jains, and the Juvenile Justice (Care and Protection of Children) Act, 2015, a secular statute applicable to all citizens, including non-Hindus. It highlights critical differences in approaches to adoption, eligibility criteria, and the rights conferred upon adopted children, including inheritance and legal status. The role of regulatory bodies such as the Central Adoption Resource Authority (CARA) is evaluated, alongside procedural challenges, social stigma, and persistent barriers to a uniform adoption code.
Key case laws are discussed to illustrate judicial interventions in safeguarding children’s interests and preventing exploitation. The paper concludes by recommending reforms aimed at harmonizing conflicting statutes, streamlining adoption processes, strengthening oversight, and ensuring that adoption law in India upholds the paramount principle of the best interests of the child. Keywords: Adoption, HAMA, Juvenile, CARA, Child Welfare
INTRODUCTION
Adoption is the legal process that provides alternative forms of parental care for Children who can not be raised by their biological parents. Adoption permanently transfers all parental rights and responsibilities from the biological parents to the adoptive parents, making the child a full member of the new family. The legal framework plays a crucial role in child welfare system across the world, aiming to provide stable and nurturing environments for children in need. The concept of Adoption in India has deep-rooted historical and religious origins , particularly within Hindu society. In ancient times, adoption was primarily seen as a means to ensure the continuity of Lineage, perform ancestral rites, and preserve family property. In Vedic and post Vedic periods , the importance of having a male heir was emphasized, specially to perform the sacred Shraddha rituals for ancestors.
Manusmriti, Dattaka - Chandrika, Dattaka - Mimansa and other Dharmashashtra etc are the text books that are referred in cases of Adoption under the Hindu Law. When biological offspring were not available, adoption was accepted as a legitimate method to fulfill this duty. Here's a notable reference from the Manusmriti, not a Vedic text but closely related to Vedic tradition “ He who has no son may make his daughter's son his son , or he may adopt a son born in the same caste and belonging to a near relative. The Dattaka form of Adoption, as mentioned in ancient Hindu scriptures like the Manusmriti, Narad Smriti, and Dharmashashtra, laid down clear guidelines on who could adopt, who could be adopted, and the procedure to be followed. The possession of offspring is considered to be more valuable than that of real wealth.
For example - Vishwamitra was possessed of many sons , but they have been degraded on account of some acts , he adopts a son Sunahsepa as his degraded sons were unfit to fulfill and discharge the duties of a son. Here's another reference from the Baudhayan Dharmasutra, “putrena lokanjayati pautrena mrtamasnute, atha putrasya pautren nakamenadhirohatiti. ”1 - Baudhayan It means - through a son one conquers the world, through a grandson one obtains the immortality and through a great grandson one attains the highest heaven. In the 17th century Dattaka - Mimansa by Nanda Pandit was considered to be the classical work on the topic of
1 Baudhayan
Adoption under the Hindu Law. It looked at adoption more as a sacramental than secular act. Adopted sons were given equal status to biological sons, especially in the matters of inheritance and religious duties. However adoption was largely patriarchal and religious in nature, with strict rules regarding the caste, lineage (gotra) and age.
OVERVIEW OF THE ADOPTION AND MAINTENANCE ACT
Before the Hindu Adoption and Maintenance Act, 1956, came into force, the adoption under Hindu personal law was mostly un-codified, based on ancient scriptures, customary laws, and judicial precedents. The fundamental requirement for valid adoption was that the individual taking and giving a child in adoption should have the legal capacity to do so, and the child should be legally adoptable. Under ancient Hindu law, only a male Hindu had the privilege of adopting a son, and even that only if he had no living son, grandson, or great-grandson, either natural or adoptive, at the time of the adoption. A wife could not adopt a child unilaterally power in her lifetime; she could only do so with the express sanction of her husband.
After his death, her right of adoption fluctuated with geographical traditions—some jurisdictions insisted on express assent of the husband prior to death, while others recognized her natural right. In none of these, however, could the adoption be completed to herself; it was always an adoption to the husband. A daughter, moreover, could not be adopted by any man or woman Hindu. The ceremonial act of giving and taking in adoption was found to be at the heart of its validity. The performance of datta homam (fire oblations) was in doubt, with varying judicial views on whether it was necessary. 2 The law regarding a widow's right to adopt varied from region to region, with conflicting precedents and mass litigation. There was a felt need to codify and harmonize the law of adoption into a consistent body of propositions authoritatively made by Parliament.
With the passage of the Hindu Succession Act, 1956, granting equal rights of inheritance to sons and daughters, there was a necessity to give the guarantee of equality to the field of adoption as well. The Hindu Adoption and Maintenance Act, 1956, thus brought in a uniform and
2 Dr. Dipankar Patra ,The Perspective of Dattaka (Adoption) in Hinduism- An Overview,IJAR, 2020.
progressive legal system for the adoption of boys and girls and equal rights to men and women in the field of adoption. One such prominent reforms included the right being given to women to adopt a child in their own name. A sound Hindu woman who has come of age can adopt a son or daughter unto herself. In case of marriage, she can do this only if her husband was either of unsound mind, had renounced the world, or had lost existence a Hindu. The divorcees, widows and unmarried women are also entitled to adopt in their individual capacity, if they do not have any living Hindu daughter or daughter of a daughter. Section 11 of the Act also enunciates statutory conditions of validity of an adoption.
These consist of the adopting parent's capacity and right (Sections 7 and 8), giver of in adoption's capacity (Section 9), fitness of the child who is embraced (Section 10), and satisfaction of such basic requirements as the actual giving and taking away of the child with intent to transfer the child from the biological to the adoptive family (Section 11). Any sound-minded male Hindu of majority age can adopt a child, provided he does not have a living son, grandson, or great-grandson (natural or adopted). When adopting a girl, he must not have a living daughter or son's daughter. If married, his wife's permission is necessary unless she is lawfully incapacitated. Similarly, any female hindu having the legal capacity can adopt a child, on the same terms.
The Act makes provision that any adoption after the commencement of the Act (21 December 1956) will be in terms of the statutory requirements, and any adoption contrary thereto is void. A void adoption is never effective; it does not vest rights in the adoptee within the adoptive family nor does it end rights in the birth family. Moreover, any an estate already vested in an individual is not divested simply because a later adoption occurs. The Hindu Adoption and Maintenance Act, 1956, thus brings clarity, consistency, and gender justice to the area of adoption among Hindus. Not only does it simplify the complicated pre-existing legal regime but also harmonizes the institution of adoption with constitutional principles of equality and non-discrimination.
KEY FEATURES OF THE ACT
1. Adoption Under HAMA – The Act lays down elaborate guidelines regarding the process of adoption, i.e., who can adopt, who can be adopted, and the legalities involved in adoption. A Hindu Male can adopt if he is of sound mind, he is not a minor ,he has his wife's consent (if she is alive and capable). A Hindu Female can adopt if she is divorced, widowed,
or unmarried. In case of marriage, she can adopt subject to the permission of her husband, if he is not of unsound mind, has renounced the world, or has lost his being Hindu. For a child to be adopted, it must satisfy the following requirements:
1. Hindu child – The child must belong to the Hindu religion.
2. Age limit – The child must be under 15 years of age.
3. Unmarried – A child who is married cannot be adopted, except otherwise as per
customs.
4. No previous adoption – The child should not already be adopted.
The adopted child is treated as a natural-born child of the adoptive parents. The child gives up all legal connections to the biological family, save in the matter of limiting marriage. Adoption is final and has the force of law. 2. Maintenance Under HAMA – The Act also grants maintenance to certain dependents, ensuring financial assistance to those who cannot take care of themselves. A Hindu wife is entitled to receive maintenance from her husband during her marriage. She can sue for separate maintenance if: • The husband is guilty of desertion, cruelty, adultery, or has a second wife. • He has become a member of some other religion. • He suffers from a fatal disease such as leprosy. Sons and unmarried daughters are entitled to be supported by their parents until they reach majority. Unmarried daughters are entitled to support until they marry.
Parents who cannot support themselves can claim support from their children. Father and mother have equal right to support. The Act does not specify an amount but requires the court to consider the financial circumstances of the person who is paying maintenance, the needs and standard of living of the dependent, the social and economic position of both parties. 3
3 Dr. Dipankar Patra ,The Perspective of Dattaka (Adoption) in Hinduism- An Overview, IJAR, 2020.
Significance of The Act Modernization of Hindu Personal Law – HAMA codified and rationalized laws of adoption, brought legal certainty. Protection of Women and Children – It protects the rights of wives, children, and elderly parents by ensuring financial security. Uniformity and Certainty – It brought uniformity to Hindu adoption and maintenance laws. models, adoption in ancient India was strongly connected with religious beliefs, i.e., relating to lineage and the observance of religious rituals.
PURPOSE OF ADOPTION IN ANCIENT INDIA
Adoption in ancient India was not necessarily for the benefit of an orphaned child, as today. Rather, it was motivated by religious and social reasons, including: Continuity of Lineage: Preservation of the family line so that the family name can be continued. Religious Duties: A son needed to do the last rites of his parents and ancestors. Adoption was the alternative to fulfill this sacred duty if a couple lacked a male heir. Rights of Inheritance: Lack of a son would result in losing the family's wealth and property since property was inherited through the male line. Legal and Religious Basis of Adoption Ancient India was regulated in its practice of adoption by Manusmriti, Yajnavalkya Smriti, and other Dharmashastra texts, which had laid down certain rules on it. An exclusive boy child was to be adopted, for the intention was to see that religious rites were performed.
An equal caste boy was ideally adopted. The biological parents had to surrender the child in adoption voluntarily, and the adoptive parents had to adopt him legally. A man who did not have a male successor was eligible for adoption, but with some age and caste conditions. Types of Adoption The ancient texts speak of various kinds of adoption depending on the circumstances and
intention: Dattaka Adoption: The most common one, where a boy was legally surrendered by his biological parents to another couple. Kritrima Adoption: Seen in some texts, where an heirless individual could appoint an heir who would be a son. Apatya by Appointment (Putrika Putra): Occasionally, an unmarried father could appoint his daughter's son as his heir, practiced among royal and priestly families. Restrictions and Conditions Certain restrictions were imposed on adoption in order to preserve social order and religious purity. Adoption was between the same varna (caste); adoption between different castes was not usually permitted. A married man was preferable for adoption, as he could carry on the family line. A childless widow was allowed to adopt in some cases, especially with the consent of male relatives.
Adoption in Royal Families Adoption in royal families was of very great importance in order to secure the succession of throne. An adoption-by a king of no living heirs would adopt a male member of the extended family or aristocratic lineage in order to maintain dynasty. The process was usually documented in writings and inscriptions.
PROVISIONS OF HINDU ADOPTION AND MAINTENANCE ACT OF 1956
Successively, with the passage of years, the rigid religion-based system of adoption changed. Judicial reforms came into existence through the Hindu Adoption and Maintenance Act, 1956, making both girl and boy children adoptable and giving women the right of adoption. Section 6 of the Hindu Adoptions and Maintenance Act, 1956 (HAMA) specifies the minimum requirements of a valid adoption under Hindu law. It safeguards the interest of all the parties, i.e., the adoptive parents, the person giving the child in adoption, and the adopted child.
Requisites of a Valid Adoption (Section 6, HAMA) In order to become legally effective, an adoption shall fulfill the following four conditions: i. The Person Adopting Must Have the Capacity and Right to Adopt An adoption can be conducted by a Hindu male or a female who satisfies the conditions enlisted under Sections 7 and 8 of HAMA. A Hindu male must be sound in mind, a majority (over 18 years), and must have his wife's husband if she is alive and not legally incapacitated. A Hindu woman can adopt independently if unmarried, widowed, divorced, or legally
separated. If married, she can adopt only with the consent of the husband unless he is incapacitated. i. The Person Giving in Adoption Must Have the Capacity to do so A child can be given in adoption only by a biological mother legal guardian. The father can
have the consent of the mother unless she is dead, has renounced the world, or has been adjudged of unsound mind. If the mother is giving up in adoption, she doesn't need the consent of the father. A guardian may surrender a child in adoption only with leave of the court, and only if both the parents are dead or incapacitated. iii. The Adopted Person Should be Capable of Being Taken in Adoption The child must be a Hindu. The child should not be married, except by local customs if marriage of a married child is permitted. The child must not be over 15 years of age, except as provided by customs. iv. Adoption Should be in Conformity with Other Provisions of the Act The adoption should be according to Section 11 of HAMA, including conditions like the adoptive parents being without a biological or adoptive child of the same gender.
There should be legally valid and recorded adoption, by which there shall be conformity with all religious or customary formalities. The question as to what constitutes consent, whether mere presence or silence or lack of protest
would be consent arose in Ghisalal v. Dhapubai4 In this case the Supreme Court has held that consent should either be in writing or reflected by affirmative or positive act voluntarily and willingly done by her. Bholooram v. Ramlal5 The court again reiterated that consent of the wife is required for a valid adoption by a Hindu male. The apex court further observed that if consent of a wife living with the husband is taken but the consent of the wife living separately is not taken , the adoption will be void. Section 7 of the Hindu Adoptions and Maintenance Act, 1956, lays down the terms on which a male Hindu can adopt a child. The section basically lays down that the adoption shall be made by a person of full legal capacity and with due consideration for the rights of his wife.
Legal Implications of Section 7 Where a man adopts without the wife's consent (where required), the adoption is invalid in law. In case of a controversy, the onus of proof to establish exceptional circumstances (renunciation, conversion, or unsound mind) is on the husband. Adoption of an individual affects the right of inheritance, and faulty adoption can cause legal property succession disputes. Section 7 provides a formal process of adoption by a male Hindu without denying the rights of the wife. It stops arbitrary adoption and makes sure that adoption is a mutual choice in a marriage. Legal protection ensures women's rights in marriage, and disobedience to these provisions can make an adoption legally invalid. Adoption under Hindu law is regulated by the Hindu Adoptions and Maintenance Act, 1956 (HAMA).
Section 8 enumerates specifically the conditions under which a female Hindu can adopt a child. As opposed to ancient Hindu law restricting the right of a woman to adopt, this provision provides a female Hindu an independent right to adopt under specified conditions. Essential Conditions For A Female Hindu To Adopt A Hindu woman must fulfill the following conditions so that she may have the right to adopt a
child:
4 Ghisalal v. Dhapubai 2011,SC
5 Bholooram v. Ramlal 2017,SC
(a) Should be of sound mind – The adopting woman must be of sane mind. She cannot adopt a child if she has been held to be of unsound mind by a competent court of jurisdiction. (b) Should not be a minor – The woman must have passed the age of majority (18 years and older) as per the Indian Majority Act, 1875. A Hindu woman cannot adopt a minor child. (c) Marital Status Considerations – Married woman has no independent right to adopt. She can adopt, however, if: 1. She is unmarried – An unmarried female Hindu possesses full capacity to adopt. 2. She is a widow – A widow can adopt since she has no living husband. 3. She is divorced – A legally divorced woman may adopt independently. 4. Her husband has renounced the world – If the husband was a sanyasi (ascetic) and gave up altogether worldly things, she may adopt. 5.
Her husband has ceased to be a Hindu – If the husband becomes a convert to another religion (say, Christianity or Islam), she may adopt. 6. Her husband is declared to be of unsound mind – In case her husband is declared insane by court, she can adopt. Note : A married woman cannot adopt a child of her husband during the latter's lifetime and when he
is sound unless the above circumstances are satisfied. If a married woman desires to adopt a child of her husband during his lifetime and when he is sound, adoption should be done by the husband, not wife. In the case of Malti Roy v. Sudhindranath Majumdar,6 the appellant , Malti had been adopted by the deceased mother. After her mother's death, she became the sole heiress and applied for estates and properties left behind by her mother. It was held that , under the provisions of the Act, the husband alone can adopt, but here, it is an admitted position that Malti was adopted by the mother Tripti not by the father and thereby, rejected her appeal.
6 Malti Roy v. Sudhindranath Majumdar (1979) SC
It has been held in Vijaya Laxmi v. B. T. Shankar,7 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. Prohibition of Shastric law barring woman to adopt is no longer applicable. After death of husband she can adopt a son and a daughter, provided she does not have one of her own. Section 9 of the Hindu Adoptions and Maintenance Act, 1956 (HAMA) prescribes the individuals who can give a child for adoption. According to it, only the guardian, mother, or father of a child can give the child for adoption with some conditions. It ensures that the adoption takes place legally and in the best interest of the child. Key Provisions of Section 9 (1) Who Has the Right to Give a Child in Adoption?
– The right to give a child in adoption is enjoyed only by the following individuals: father, mother, guardian (only in certain cases). No other individual, even blood relations, can give a child in adoption. (2) Father's Right to Give in Adoption (Section 9(2)) – The father, being the first to have a right to give the child in adoption, retains that right provided he is living. Yet, this right cannot be availed of without the mother's consent except in the following cases - the mother has renounced the world finally and forever, the mother has abandoned the Hindu faith (converted to another religion), the mother has been declared by a court to be of unsound mind. This is done to ensure the protection of the rights of the mother and to avoid unilateral adoption by the father over her head and without her consent.
(3) Right of Mother to Give in Adoption (Section 9(3)) – The mother can give the child in adoption only if the father has died, the father has irrevocably and finally abandoned the world, the father has ceased to be a Hindu by birth, the father has been declared by a court to be of unsound mind. This provision guarantees that if the father is absent or incapacitated, the mother has independent right to give the child in adoption. (4) Right of Guardian to Give in Adoption (Section 9(4)) – The guardian may give a child in adoption only if both parents have died, both parents have renounced the world finally and altogether, both parents have abandoned, both parents have been declared by a court to be of
7 Vijaya Laxmi v. B.T. Shankar (2001) SC
unsound mind, or parentage of the child cannot be traced. The guardian can, in such cases, only pass the child in adoption subject to the previous order of the court. (5) Role of the Court in Guardian-Adoption Cases (Section 9(5)) – The court before giving permission to the guardian to pass the child in adoption shall be satisfied that: 1. The adoption is in the best welfare of the child. 2. The wishes of the child are ascertained (if the child is capable). 3. There is no illegal compensation or money transaction in the adoption, except as authorized by the court. It avoids child trafficking and ensures that adoption is in the best interest of the child. In the case of the Sita Bai v. Ram Chandra,8 plaintiff Sita Bai was the widow of Bhagirath, who predeceased Dulichand, his elder brother sometime in 1930.
It was the admitted case of both tha parties that after Bhagirath died, the plaintiff Sita Bai was living with Dulichand as a result of which connection an illegitimate child defendant Ram Chandra was born in 1935. The issue before the court was that whether the son adopted by the widow becomes the son of the deceased husband and whether such an adopted son becomes a coparcener , the character of a joint family ? The Supreme court overturned the High court's decision and upheld the lower court's decision granting the half share of the joint family holdings. Further the court has held that if a child is adopted by a widow, will be deemed to be a child not only of the widow but also of the deceased husband of widow. Section 10 of Hindu Adoptions and Maintenance Act, 1956 (HAMA) prescribes the conditions to be adopted to make a person eligible to be adopted.
According to the section, not everyone is adoptable and places some restrictions based on religion, previous adoption or otherwise, marital status and age. All these conditions attempt to legalize the process of adoption along with being according to Hindu usage and customs. Section 10 - Key Provisions As per Section 10, a person can be adopted only if the following provisions are fulfilled:
8 Sita Bai v. Ram Chandra. 1969,SC
i. The Person Must be a Hindu – The adoptee should be a Hindu on the adoption date. As per the Act, under the Hindu law, adoption of a child of some other community (e. g. , a Muslim, Christian, or Parsi) is not allowed. This is a condition that aligns with the personal laws of Hindus and only guarantees Hindu children to be adopted under HAMA. ii. The Person Shall Not Have Been Previously Adopted – Once a person has been adopted, no one can adopt them again. The above provision avoids frequent multiple adoptions of the same child and offers certainty in law about the status of the child as well as rights of succession. On valid adoption, the adopted child becomes the biological child of the adopting parents, and subsequent adoption is not permissible by law. iii. The Person Should Not Be Married (Except in Customary Cases) – The general rule is that a married person cannot be adopted.
Except for: There is a custom or usage between the parties which allows the adoption of a married person, then the adoption is legal. No Such usage have to be established in court, if there is opposition. iv. The Person Should Be Under 15 Years of Age (except in Usual Cases) – Generally speaking, one who has crossed the age of fifteen years cannot be adopted. There is an exception, however, where adoption of a person above 15 years is permissible if there is a usage or custom permitting it. Hindu Adoptions and Maintenance Act, 1956 (HAMA) places some conditions on whom one can adopt a child and by whom one can be adopted. In those conditions, one of the notable conditions is that the adoptive parent should not have a child of the same gender at the time of adoption.
This condition ensures that adoption fulfills its real objective—to give a childless man or woman having one child for legal and social security purposes rather than causing an unwanted break in inheritance rights. Key Provisions Under Section 11 i. Prohibition on Adopting a Son When a Male Heir Already Exists – If the adoption is of a son, the adoptive father or mother should not already have a living Hindu son, grandson, or great-grandson (either by blood or adoption). This provision is to ensure that adoption is only made when there is an actual need, i. e. , where the family has no son. The idea is not to prevent unnecessary alterations in
transmission of property and misuse of adoption as a device to gain additional heirs. ii. Prohibition Against Adopting a Daughter When a Female Heir Already Exists – During adopting a daughter, the adoptive parent or parents should not have a surviving Hindu daughter or son's daughter (adopted or natural). Its impact is similar to prohibition against adopting a son—granted only when there is exigency. It avoids needless shifts in rights under law of inheritance and upkeep. iii. Minimum Age Difference for a Male Adopting a Female – In case a male adopts a female child, there should be a minimum difference in their ages of 21 years. This requirement makes the adoptive relation as natural as a father-daughter relation and leaves no scope for an indecent relation. iv.
Minimum Age Difference for a Female Adopting a Male – In the adoption of a male child by a woman, the age between the two should be at least 21 years. The above rule is to do the same thing as the previous rule - to create a natural motherson relationship and prevent any sort of misuse of the adoption procedure. v. Prohibition of Adoption by More than One Person at the Same Time – The same child cannot be adopted by more than one person at the same time. This will legally bring the child into one family. vi. Conditions for Actual Giving and Taking of the Child–The adoption must be by the actual giving and taking of the child by the biological parents or legal guardian. The transfer must be with the evident intention to transfer the child from the family of birth (or, in case the child was abandoned, from where they were brought up) to the adoptive family.
2. Provided: Datta Homam Not Essential for Valid Adoption – There is no need to conduct
Datta Homam (a religious ceremony) to make an adoption legal. Religious ceremonies can be continued by families but the law does not compel these to approve an adoption into legal acceptance.
3. The restrictive conditions were challanged in Sandhya Supriya Kulkarni v. Union of India9
4. While upholding the provisions as personal laws do not fall within the ambit of Part 3 of
the Constitution of India, the Bombay High court observed that the parliament ought to reexamine the question to relax these conditions.
5. The Hindu Adoptions and Maintenance Act, 1956, Section 12 prescribes the legal effects
of adoption. The adopted child is the lawful child of the adopting parents. This section makes sure that the adopted child is completely integrated into the adopting family but also provides for some legal and property aspects. Key Notes on Section 13 1. Maintenance of Parental Autonomy – The adopted child does not gain a vested interest in the self-acquired property of the adoptive parent in his lifetime. The adoptive parent can freely disinherit the adopted child by a valid will. 2. Transfer Inter Vivos – Any transfer inter vivos like gift, sale, exchange, etc. The adoptive parent is competent to make such transfers. 3. Testamentary Power – The parent can will the property to anyone, even a stranger or a relative other than the adopted child. 4.
Restrictive Agreement – Where there is a valid agreement at the time of adoption restricting the parent from parting with property, such an agreement will be binding and enforceable. 5. Joint Family Property Not Affected – Section 13 becomes operative only in the case of self-acquired property and does not cover coparcenary property under Hindu joint family law. In the case of Namdev Ghadge v. Chandrakant Ghadge,10 the Court reaffirmed that adoption does not divest vested interests in property, and the adopted child cannot challenge legal transfers or inheritances which occurred prior to adoption.
9 Sandhya Supriya Kulkarni v. Union of India,1998 13
10 Namdev Ghadge v. Chandrakant Ghadge, AIR 2003 SC 1735
ILLUSTRATION
If Mr. A adopts a child and later makes a will in the name of his niece, the adopted child cannot dispute the will on the grounds of adoption alone. But if there was a contract at the time of the adoption that the adopted child will inherit the estate, the adopted child may enforce the contract. Section 14 of the Hindu Adoptions and Maintenance Act, 1956 addresses how the law decides the adoptive mother in some complicated situations in the family—e. g. , when the adoptive father is keeping more than one wife or when the adoptive parent is a widow, widower, bachelor, or unmarried woman. The section provides legal clarity on parental roles and does not leave any room for ambiguity in post-adoption family relationships. SECTION 14(1): Husband Adopts While Wife Is Alive If a Hindu man lawfully adopts a child during the lifetime of his wife, she automatically becomes the adoptive mother.
Even though she may not be a signatory to the adoption deed, provided that her consent (if necessary) under Section 7 is valid. Illustration: Where Mr. A adopts a child lawfully and his wife is alive, she automatically becomes the adoptive mother by force of law. While no direct provision exists under Section 14(1), courts have generally ruled that the legal status of the wife as an adoptive mother automatically arises on valid adoption by the husband. Section 14(2): More Than One Wife: Consent Of More Than One Wife If a man has more than one wife and adopts a child with the consent of more than one wife, the first wife in order of time will be considered the adoptive mother. The remaining wives, although agreeing, come under the category of step-mothers. Illustration: Mr. B has two wives.
If both agree to the adoption, the most senior wife in marriage is the adoptive mother, and the second is a step-mother. Section 14(3): Widower Or Bachelor Adopts And Then Gets Married If the widower or bachelor adopts a child and gets married later, the new wife on marriage is not the adoptive mother. Conversely, she is legally a step-mother to the adoptive child.
Example: Mr. C, bachelor, adopts a child in 2020 and weds Ms. D in 2022. Ms. D is a stepmother, but not an adoptive mother. Section 14(4): Widow Or Unmarried Woman Adopts And Then Marries Likewise, if a widow or unmarried woman adopted a child and subsequently marries, her newly married husband is equated as the step-father. He never turns into an adoptive father. Example: Ms. E adopts a child in 2021 as a widow. She marries Mr. F in 2023. Mr. F will be a step-father only. Section 15 of the Hindu Adoptions and Maintenance Act, 1956, enunciates a fundamental principle of finality and permanency of a valid adoption. An adoption validly created once legally perfected under the Act cannot be revoked or rescinded by either of the parties (adopting parents or the adopted child).
The principle demonstrates the legal sanctity and irrevocability of a validly created parent-child relationship under adoption.
CORE PRINCIPLE: IRREVOCABILITY OF ADOPTION
Once an adoption is finalized regarding the provisions of the Act (Sections 6 to 11), it holds good and cannot be revoked by the adoptive father or mother, any third party, the adopted child himself or herself. The adopted child likewise cannot pass on his or her status of adoption to return to the natural family.
LEGAL IMPLICATIONS
On adoption, the adopted child gains all rights in the adoptive family and forfeits rights in the natural family (except in exceptional situations under Section 12). No writing or document by adoptive parents or by the child can invalidate an effective adoption. Even joint consent of the adoptive parents and the child cannot invalidate an adoption. Adopted child cannot "go back" to the natural family in law.
ILLUSTRATIONS
Example 1: Mr. A and Mrs. A lawfully adopt a child B under the Act. Later, they fall apart and want to revoke the adoption. They cannot, according to Section 15, and B remains their lawful
child. Example 2: C is adopted by Mr. and Mrs. D. C wants go back to his biological natural parents and revoke the adoption. In legal terms, C cannot be undone in respect of revoking the adoption or reviving rights under his natural family.
EXCEPTIONS
No statutory exception under the Hindu Adoptions and Maintenance Act is given for cancellation of a valid adoption. Invalid Adoptions can be challenged: Where an adoption fails the tests under Sections 6 to 11 (e.g. lack of consent, lack of capacity, interdicted relationships), it is void ab initio and can be set aside on grounds of law. But it is not a revocation under Section 15, but one of invalidity.
CONCLUSION
The Hindu Adoption and Maintenance Act, 1956, provide a structured legal framework for adoption, promoting the welfare of the child while preserving familial harmony. It also ensures flexibility by recognizing customary practices within the Hindu community, provided they align with the Act’s provisions. Further it outlines clear eligibility criteria, requiring the adopter to be a Hindu, of sound mind, and capable of providing for the child. The Act mandates that the child to be adopted must be a Hindu, below 15 years of age (unless custom permits otherwise), and not already adopted or married. Consent of the spouse (if married) or guardian (in case of orphans or abandoned children) is essential, ensuring mutual agreement in the adoption process.
The Act’s emphasis on formalities, such as giving and taking the child with intent to transfer parental rights, ensures transparency and prevents disputes. By integrating legal rigor with cultural sensitivity, the Act strengthens the institution of adoption, promoting social stability and the equitable treatment of adopted children within Hindu families. This Act facilitates adoptions by unmarried women, widowers, and divorcees, broadening the scope of eligible adopters while maintaining safeguards like age differences between the adopter and child (e. g. , a minimum 21-year age gap for opposite-sex adoptions).
It also prioritizes the child's best interests, granting adopted children equal rights to biological children in matters of inheritance and family status. It also allows both males and females to adopt, reflecting gender inclusivity, though subject to specific conditions (e. g. , a male adopter needs his wife's consent). The adoption process is irrevocable, providing legal certainty and stability to the adoptive relationship. By balancing traditional Hindu customs with modern legal principles, the Act ensures that adoptions are consensual, legally binding, and focused on the child's welfare. It also addresses maintenance obligations, reinforcing familial responsibilities. However, the Act's scope is limited to Hindus and does not apply to inter-religious adoptions, which require other legal frameworks like the Juvenile Justice Act.
Overall, the Act remains a cornerstone for regulating adoption, fostering secure family structures while adapting to contemporary societal needs.