Adoption Under Hindu Law

Historical Perspective

Since the Vedic period, Hindu society has given a lot of importance to male child. It was said that a male child saves the father from 'put' hell, hence the male child is called Putra. This was the main reason which has prompted the son-less to adopt a male child.

Manusmriti says that when the natural father and mother give wholeheartedly their son with the offering of water to another person in distress, it is called Dattak.

Vashistha has given several guidelines on dattak. It says that the father and the mother of an offspring have complete right on selling or giving the offspring to another. A Dattak cannot be taken from the person who has only one son. A child whose kinsmen are not known cannot be taken as dattak. A woman had no right to adopt.

Sounaka has said metaphorically that a Dattak son must be a reflection of the father, which means that a Dattak can only be taken from a mother whom the person could have married before her marriage. Thus, one could not adopt daughter's son, sister's son, or mother's sister's son.

Thus, the practice of Dattak in the old days had been practised mostly for religious reasons. This is also evident from the fact that only a male child was to be adopted because only he can perform the religious duties for the father.  Slowly, secular reasons such as continuance of the family name also became important. More recently, ulterior motives such as changing the course of inheritance of property has also prompted people to adopt.

Based on the above three authors and many other customs, the Dattak ceremony primarily involved a Dattakgrahan, i.e. the actual giving and taking of the child and a Dattakhomam. However, there were several controversies because there was no one standard rule.  So, in 1956, the Hindu Adoption and Maintenance Act was enforced which standardized as well as modernized the rules and process for adoption.

Some important features of this act are:

1. Adoption has been made a secular thing. There is no necessity of any religions ceremonies or other religious aspects.
2. Both a man and a woman can adopt on their own right.
3. Both a boy or a girl can be adopted.
4. Orphans, out of cast children, or children in close relation, can also be adopted.
5. Widow, widower, and bachelors can also adopt.
6. In the case of Naidu vs Naidu AIR 1970, SC has held that the court need not look into the motives of adoption.

Requisites for Adoption
Section 6 of the HAM Act 1956 lays down the following 4 requirements

1. The person who is adopting must have the capacity and the right to adopt.
2. The person who is giving the child in adoption must have the capacity to give.
3. The person who is being adopt must be eligible to be adopted.
4. The adoption must satisfy all the rules given in this act.

Section 7 describes which Hindu Male is capable of adoption:

1. Any Hindu male who has attained the age of majority and who is of sound mind can adopt.
2. If he is married, he must take consent from his wife. If he has multiple wives, consent from all the wives is required. In the case of Bhooloram vs Ramlal AIR 1989, MP HC has held that if the consent of the wife living with the husband is obtained but the consent of the wife living away has not been obtained then the adoption is void.
3. A wife's consent is not required is the wife has completely renounced the world and has become a Sanyasin, has changed her religion and has ceased to be a Hindu, or has been proven by a competent judge to be mentally unsound.

Section 8 describes which Hindu Female is capable of adoption:

1. She must be a major and must not be mentally unsound.
2. She is unmarried, is a widow or a divorcee. In the case of Vijayalakshamma vs B T Shankar, AIR 2001, SC has held that consent from a co-widow is not required because a widow can adopt on her own right.
3. A married woman is allowed to adopt only if the husband has renounced the world completely, or is of unsound mind, or has ceased to be a Hindu.

This is a big change from pre-act situation. Earlier, a woman had no right to adopt.

Section 9 describes who has the capacity to give a child in adoption

1. Only the natural father has the right to give a legitimate child in adoption. However, the father must get consent from the natural mother unless the mother has been declared by a competent court to be of unsound mind, has renounced the world, or has ceased to be a Hindu.
2. If the father is mentally unsound, or has renounced the world, or has ceased to be a Hindu, or is dead, the mother can give the child in adoption.
3. Only the mother of an illegitimate child has the right to give the child in adoption. However, she cannot adopt the child herself because a giver cannot be taker at the same time.
4. If both the natural mother and father are dead, or have renounced the world, or have abandoned the child, or are of unsound mind, a guardian, testamentary or court appointed can give a child in adoption, including to the guardian himself, upon prior permission of the court.
5. While granting permission, the court must see the welfare of the child and the wishes of the child depending on the child's age.

In the case of Dhanraj vs Suraj, 1981 SC held that guardian includes - de jure and de facto. Thus, a manager or secretary of an orphanage, or the person in whose case the child is, of the person who has brought up the child can give the child in adoption.

Section 10 describes who is capable of being adopted

1. The child must be a Hindu.
2. The child must not have already been adopted.
3. The child must be unmarried. However, if a custom to the contrary exists, such an adoption may take place.
4. The child must be less than 15 yrs of age. However, if a custom to the contrary exists, such an adoption may take place.

There is no restriction on who can be adopted regarding Sapinda relationships. Even a daughter's son, or sister's son can be adopted.

Section 11 describes some other conditions for a valid adoption

1. If a male child is being adopted, the person who is adopting must not already have a son, son's son, or son's son, whether natural or adopted.
2. If a female child is being adopted, the person who is adopting must not already have a daughter or son's daughter.
3. If a male is adopting a female child, then their age difference must be greater than 21 yrs.
4. If a female is adopting a male child, then their age difference must be greater than 21 yrs.
5. Two persons cannot adopt the same child.
6. The actual giving and taking of the child must happen. Only mere intention of giving and taking is not enough. The child must be transfered from the home of the natural parents, or in case of orphans, from the place he grew up, to the adoptive parent's home. The ritual or ceremony of Dattakhomam is not necessary.

In the case of Sandhya Supriya Kulkarni vs Union of India, AIR 1998, these conditions were challenged on the ground that they violate fundamental rights, however, SC held that personal laws do not fall under the ambit of part III of the constitution.

Effects of Adoption

Section 12 says that an adopted child is deemed to be a natural child of his adopted parents for all purposes. All relations with the natural parents and family are severed and new relationships with the adopted parents are established. Only exception is that the adopted child cannot marry anybody from his natural family in contravention of Sapind and prohibited relationships.
It further says that the adopted child is not divested of his property that has vested in him before adoption and that an adopted child cannot divest anybody of his vested property after adoption.

An important change from the old law here is that the concept of "relating back", which means that when a widow adopts a child the adoption is considered to be done from the date the husband died,  has been abolished. However, in the case of Sawan Ram vs Kalawati AIR 1967, SC has held that the deceased father is sill considered the adoptive father.

Section 13 says that subject to any ante-adoption agreement, the adoptive parents do not lose their right of alienation of their property after adoption.

Section 14 describes the position of mothers in certain situations:

1. When a male adopts with the consent of the wife, the wife becomes the adoptive mother.
2. If a single adoptive father later marries, the wife of the adoptive father becomes the stepmother.
3. If a single adoptive mother later marries, the husband of the adoptive mother becomes the stepfather.
4. If an adoptive father has multiple wives, the senior-most by marriage, not by age, the wife becomes the adoptive mother and other wives become the stepmothers.

Section 15 says that a valid adoption cannot be cancelled either by the adoptive father or mother. Neither can the adopted child renounce the adoptive parents and go back to the family of his birth.

Section 16 says that whenever any document made under any law in force at the time, purporting to record adoption, and has been signed by the giver and taker of the child is produced before the court, the court shall presume that the adoption has been made in accordance with the provisions of this act unless and until it is disproved.

In the case of Pentakota Satyanarayana vs Pentakota Seetharatham AIR 2005 SC, the plaintiff brought a suit for partition and possession. However, he failed to provide any proof of the adoption. His adoptive father was estranged from adoptive mother and the adoptive mother had asked for maintenance for herself but not for the adoptive son. There was no document or agreement. The plaintiff could not provide any essential details such as date of adoption or fixing of Muhurtam etc. Thus, SC held that there was no adoption and the alleged adopted son had no right in the property.