Concept and Purpose of Adoption

Adoption, within the framework of Hindu law, is a sacred and significant legal process that creates a parental relationship between a child and parents who are not biologically related. It's a means to provide a child with a family and, conversely, allows individuals or couples to have children when they cannot have them biologically. The legal consequences of adoption are profound, creating rights and obligations similar to those arising from a biological parent-child relationship.

Historical and Religious Significance:

Adoption has deep roots in ancient Hindu scriptures and traditions. It was historically crucial for several reasons:

• Continuity of Lineage (Putra): The concept of 'Putra' (son) was central to Hindu rituals and social structure. A son was believed to perform funeral rites (shraddha, pindadan) for his ancestors, ensuring their peace in the afterlife and the continuation of the family lineage. Adoption was a primary method to secure a son for performing these vital rites, especially if a man had no male offspring.
• Performance of Ceremonies: Adopting a son ensured that religious ceremonies and rituals would be continued, and property would be passed down through the male line.
• Social Necessity: In the absence of biological children, adoption provided a way for couples to experience parenthood, nurture a child, and ensure care in their old age.
• Charitable and Spiritual Merit: Giving a child in adoption or adopting a child was often considered an act of great religious merit (punya).

The Dharmashastras, ancient legal texts, elaborate extensively on the types of adoptions, the qualifications of the adopter and the adopted, and the rituals involved. While the legal framework has been modernized by the Hindu Minority and Guardianship Act, 1956 (HMGA) and primarily by the Hindu Adoptions and Maintenance Act, 1956 (HAMA), the underlying philosophical and social significance remains.

Section 5: Requisites of a Valid Adoption (Hindu Adoptions and Maintenance Act, 1956)

Section 5 of the Hindu Adoptions and Maintenance Act, 1956, lays down the essential conditions for an adoption to be legally valid. For an adoption to be effective, all the following conditions must be met:

Section 5(1): "In the first place, every adoption made, every date of coming into force of this Act, shall be regulated by the provisions of this Chapter, Provided that any adoption made before that date shall not be deemed to be invalid or ever to have been invalid merely by reason that the same is contrary to the provisions of this Chapter, if it was valid under the law applicable to the parties thereto if this Act had not been passed."

Elaboration: This proviso clarifies that adoptions made before the Act came into force (December 21, 1956) are governed by the laws prevalent at that time. If an adoption was valid then, it remains valid even if it doesn't strictly conform to the 1956 Act.

Section 5(2): "Subject to the provisions of this Chapter, the adoption of a son that was recognized by rules of decision based on the ಧರ್ಮśāstra or custom applicable to him immediately before the commencement of this Act shall be deemed to be valid."

Elaboration: This clause reiterates that adoptions that were valid under the ancient Dharmashastras or customary law applicable to the parties before the Act's commencement are deemed valid.

Section 5(3): "Subject to the provisions of this Chapter, no adoption shall be valid unless the person adopting has the capacity, and also the right, to adopt, and the person adopted is capable of being taken in adoption, and the adoption is made in compliance with the other conditions, if any, prescribed in this Chapter."

Elaboration: This is the core of the section, outlining the conditions for a valid adoption under the 1956 Act:

1. Capacity of the Adopter: The person adopting must have the legal capacity to do so (e.g., be of sound mind, not a minor).
2. Right to Adopt: The person must have the legal right to adopt (e.g., being a Hindu male or female as per the Act's provisions).
3. Capacity of the Adopted: The child being adopted must be capable of being taken in adoption (i.e., meet the criteria of age, sex, and the condition of not being already Hindu).
4. Compliance with Other Conditions: All other conditions stipulated in the Chapter (Sections 6 to 11) must be fulfilled.

Crucial Conditions for Validity (Derived from Chapter II of HAMA, 1956):

• Ceremonial Adoption (Section 11): Though the Act emphasizes the intention and the legal capacity, it also states that the giving and taking of the child must be done. However, this ceremony is not mandatory for validity if the parties intended to adopt and fulfilled other conditions. Modern courts often hold that the intention and legal compliance are paramount. For a male Hindu adopter, the actual ceremony of giving and taking is generally considered evidence of intention.
• No Double Adoption: A person cannot be adopted more than once.
• Same Sex of Adopter and Adopted: If the adopter is a male, he cannot adopt a girl child if he has a living daughter unless his wife has consented to the adoption. Similarly, if the adopter is a female, she cannot adopt a boy child if she has a living daughter.
• Natural Relationship Considerations: The conditions regarding the age difference and the gender of the adopter and the adopted child (explained in detail later) are critical.

Who may adopt?

The Hindu Adoptions and Maintenance Act, 1956 (HAMA), specifically deals with who can adopt a child under Hindu law. The Act distinguishes between male and female adopters.

Persons Capable of Adopting:

Section 7: This section states, "Any male Hindu who is of sound mind and not a minor has the capacity to take in adoption: Provided that, if he has a living wife, he shall not adopt except with the consent of his wife, unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been judicially declared to be of unsound mind."

Conditions for Adoption by Male Hindu (Elaborated):

1. Capacity:
   • Hindu Status: The person must be a Hindu. The Act defines "Hindu" to include Buddhists, Jains, and Sikhs by religion.
   • Sound Mind: The adopter must be of sound mind. This means they must have the mental capacity to understand the nature and consequences of the adoption.
   • Majority: The adopter must have attained the age of majority (18 years). A minor cannot adopt.
2. Consent of the Wife (if any):
   • General Rule: If a male Hindu has a living wife, he generally requires her consent to adopt a child. This is to protect the wife's position and rights within the family and to ensure that the adoption is a joint decision.
   • Exceptions to Wife's Consent: The wife's consent is not required if:
     • She has completely and finally renounced the world.
     • She has ceased to be a Hindu (e.g., converted to another religion).
     • She has been judicially declared to be of unsound mind by a competent court.
3. Who can be adopted by a Male Hindu: A male Hindu can adopt a son or a daughter, provided the conditions in Section 9 (who can be adopted) are met.
4. One Adoption at a Time: A male Hindu can have only one adoption at a time. He cannot adopt another child while a previous adoption is subsisting. If an adoption is found to be invalid, he can make a fresh adoption.

Adoption by Female Hindu:

The HAMA, 1956, also provides for adoption by a female Hindu.

Section 8: "Any female Hindu who is of sound mind and not a minor has the capacity to take in adoption: Provided that, if she has a husband living, she shall not adopt except with the consent of her husband unless the husband has completely and finally renounced the world or has ceased to be a Hindu or has been judicially declared to be of unsound mind."

Conditions for Adoption by Female Hindu (Elaborated):

1. Capacity:
   • Hindu Status: Must be a Hindu.
   • Sound Mind: Must be of sound mind.
   • Majority: Must have attained the age of majority (18 years).
2. Consent of the Husband (if any):
   • General Rule: If a female Hindu has a living husband, she generally needs his consent to adopt.
   • Exceptions to Husband's Consent: The husband's consent is not required if:
     • He has completely and finally renounced the world.
     • He has ceased to be a Hindu.
     • He has been judicially declared to be of unsound mind.
3. Conditions for Whom She Can Adopt: A female Hindu can adopt a child (son or daughter) only if she is a widow or has been divorced, or her husband has ceased to be a Hindu, or has been judicially declared to be of unsound mind, AND she herself has not been married, or if married, her marriage has been dissolved, OR her husband has ceased to be a Hindu, or has been judicially declared to be of unsound mind. (This clause is complex and aims to ensure the adopted child has a proper family environment).
4. No living son/daughter: Crucially, if a female Hindu adopts a son, she must not have a living son. If she adopts a daughter, she must not have a living daughter. This is to prevent the adoption of children to fill a perceived gap in the gender of children already present in the family, promoting the idea of adoption for the child's need for a family.
5. One Adoption at a Time: Similar to a male Hindu, a female Hindu can only have one adoption at a time.

Who may be adopted?

The Hindu Adoptions and Maintenance Act, 1956 (HAMA), also specifies the conditions and qualifications that a child must meet to be legally adopted under Hindu law.

Persons Capable of Being Adopted:

Section 6: This section states, "No person shall be capable of being taken in adoption unless the following conditions are complied with, namely:- (i) he or she has completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits a person who has not completed the age of fifteen years being adopted; (ii) he or she has not already been adopted: (iii) he or she is Hindu: Provided that, the validity of an adoption made in contravention of the said condition, unless expressly declared to be void by the Act, shall not be affected on that ground alone: Provided further that nothing in this Act shall affect the validity of any adoption of a son or daughter by a person who is not a Hindu if made before the commencement of this Act."

Elaboration of Conditions for Being Adopted:

1. Age Limit:
   • General Rule: The person to be adopted must have completed the age of fifteen years.
   • Exception for Custom: This age limit can be relaxed if there is a specific custom or usage applicable to the parties that permits the adoption of a person who has not completed fifteen years.

   Purpose: This age limit is meant to ensure that the person being adopted is capable of understanding, to some extent, the nature of the adoption. However, the primary focus is on providing a family for children who need one, hence the exception for custom.

2. Not Already Adopted:
   • A person who has already been adopted cannot be adopted again. Adoption creates a permanent bond, and a child can only have one set of adoptive parents.
3. Hindu Status:
   • General Rule: The person to be adopted must be a Hindu.
   • Proviso 1 (Validity): An adoption made in contravention of this condition (i.e., adopting a non-Hindu) is not automatically void. Its validity will depend on other factors and the specific circumstances, but it is generally discouraged and may be challenged.
   • Proviso 2 (Pre-Act Adoptions): Adoptions of non-Hindus by non-Hindus made before the commencement of the Act remain valid. This recognizes existing legal practices.

Restrictions on Adoption by Females (Section 9 - elaborated):

Section 9 deals with who can be adopted, with specific restrictions concerning females:

Section 9: "No person shall be capable of being adopted, unless the following conditions are complied with, namely:-

(i) if the adoption is by a male Hindu who is not married, or who is the only wife of his adoptive father and his marriage has not been consummated, or who has ceased to be a Hindu by conversion to another religion, the person to be adopted must be a male child whose mother or father was such a Hindu as aforesaid;

(ii) if the adoption is by a male Hindu who is already married, the person to be adopted must be a male child whose mother or father is a Hindu, and the person to be adopted must be related to the adopter in such a way that if they had been related in that way by lawful wedlock, the minor would have been incapable of being adopted by the adopter;

(iii) if the adoption is by a female Hindu,—

(a) the adopted must be a male child, or a female child, provided that the adopter is not already has a living son or a daughter (provided she has no son, or if she has a son, she has no daughter);

(b) the adopted must be a Hindu;

(c) the adopter must not have completed the age of twenty-one years at the time of adoption;

(d) the adopted must be related to the adopter in such a way that if they had been related in that way by lawful wedlock, the minor would have been incapable of being adopted by the adopter."

Elaboration of Restrictions and Conditions:

Conditions for Adoption by a Male Hindu:

• Adopting a Son:
  • If the male Hindu is unmarried, divorced, or his wife has renounced the world/converted/is of unsound mind, he can adopt a male child whose mother or father was a Hindu.
  • If the male Hindu is married, he can adopt a male child provided the child is Hindu, and there is a relationship that would have made adoption invalid if they were related by lawful wedlock. This is a complex "prohibited relationship" clause, essentially meaning an adopter cannot adopt a child they could not have legally married had they been born into the family. For example, a man cannot adopt his niece or nephew. The most common scenario is adopting a child who is not a direct descendant of his lineage.
• Adopting a Daughter: A male Hindu can adopt a daughter, subject to the same general principles of capacity, consent of wife (if living), and the proviso regarding prohibited relationships.

Conditions and Restrictions for Adoption by a Female Hindu:

• Adopting a Son: A female Hindu can adopt a son only if she has not already a living son. This is a strict condition designed to prevent adoption of sons to fill a perceived gender deficit when a son already exists. If she has sons, she cannot adopt another son.
• Adopting a Daughter: A female Hindu can adopt a daughter only if she has not already a living daughter. Similar to adopting a son, this prevents adoption to complete a set of children. However, if she has a son but no daughter, she can adopt a daughter.
• Hindu Status of Adopted Child: The adopted child must be Hindu.
• Age of Female Adopter: The female adopter must not have completed the age of twenty-one years at the time of adoption. This is a specific restriction for female adopters, possibly to ensure maturity.
• Prohibited Relationship: Similar to male adopters, the adopted child must not be related to the female adopter in a way that would prevent adoption if they were related by lawful wedlock.

Table Summarizing Key Adoption Rules (HAMA, 1956):

Legal consequences of adoption

Termination of the child's relationship with the natal family

Once a child is legally adopted, all legal relationships with the biological or natal family are completely severed. This includes:

• Termination of inheritance rights from biological parents and relatives
• Loss of obligations and duties (such as maintenance or ancestral worship)
• No claim on property, guardianship, or custody from the natal family

This is in accordance with the provisions under Section 12 of the Hindu Adoption and Maintenance Act, 1956, which specifies that the adopted child is deemed to be the child of the adoptive parents for all purposes from the date of adoption.

Creation of new relationship with the adoptive family

Adoption leads to the establishment of a new legal identity for the child as if they were born to the adoptive parents. This includes:

• Full filial rights and obligations with adoptive parents
• Becoming a coparcener in the adoptive family, especially relevant under Hindu law
• Acquiring family name, caste, and status of adoptive family

From the date of adoption, the child enjoys all rights of a biological child, including education, love, affection, and family rituals.

Succession rights

The adopted child is entitled to inherit both movable and immovable property from the adoptive family. Key highlights include:

• They lose the right to inherit from the biological family.
• They gain full inheritance rights in the property of the adoptive parents and relatives.
• This applies regardless of whether the adoptive parents later have biological children.

This provision ensures that there is no legal discrimination between biological and adopted children under succession laws.

Revocation of Adoption

Once legally completed, an adoption cannot be revoked under normal circumstances. As per the Hindu Adoption and Maintenance Act, 1956:

• Adoption is final and irrevocable once validly executed and registered.
• Even mutual agreement between biological and adoptive parents cannot nullify a valid adoption.
• A child who is adopted also cannot renounce the adoption.

Exception under fraud or coercion

The only possible revocation is if the adoption was procured by fraud, coercion, or undue influence. In such cases:

• The aggrieved party must approach the civil court.
• It must be proved that legal procedures were violated or consent was not obtained properly.

If proven, the court may declare the adoption as null and void, and the child may revert to the biological family, but this is extremely rare in practice.

No revocation for change of mind

Change of heart or personal inconvenience is not a valid ground for revoking adoption. Once the process is finalized:

• The adoptive parents cannot give the child back or disown them.
• The child is entitled to legal protection and care under the law.

Obligation to Maintain

Maintenance of Wife, Children, Aged Parents

Under the Hindu Adoption and Maintenance Act, 1956, certain individuals have a legal right to be maintained. Section 18, 20, and 22 of the Act clearly outline these responsibilities:

• Wife: A Hindu wife is entitled to be maintained by her husband throughout her lifetime, as long as she remains chaste and does not convert to another religion.
• Children: Legitimate or illegitimate children—both sons and unmarried daughters—are entitled to maintenance by their father and, in his absence, by the mother.
• Aged or infirm parents: Hindu sons and daughters are under a moral and legal duty to maintain their aged or ailing parents who cannot maintain themselves.

Maintenance includes: provision for food, clothing, residence, education, medical attendance, and treatment.

Amount of Maintenance

Factors considered by the court

The quantum of maintenance is not fixed under the Act; rather, it is determined by the discretion of the court based on several factors, as mentioned in Section 23 of the Hindu Adoption and Maintenance Act, 1956.

Key Factors:

• Position and status of the parties
• Reasonable wants of the claimant
• Independence and income of the claimant
• Income and assets of the person liable to maintain
• Number of dependents entitled to maintenance
• Any other legal obligation on the part of the person liable

Courts aim to ensure that the standard of living of the claimant is not drastically reduced after separation or loss of support.

Example Scenario

If a Hindu husband earns ₹1,00,000 per month and has two dependents (a wife and a child), the court may fix maintenance for the wife around ₹20,000–₹25,000, taking into account rent, schooling, and inflation. This is subject to specific case facts.

Maintenance of Dependents

Definition of Dependent

According to Section 21 of the Hindu Adoption and Maintenance Act, 1956, the term "dependent" includes the following relatives who are entitled to maintenance:

• Widowed daughter-in-law
• Minor son or unmarried daughter of a predeceased son
• Widowed mother
• Father (if unable to maintain himself)
• Minor illegitimate children of the deceased
• Widow, children, and aged parents of a deceased Hindu

Conditions for Claiming Maintenance by Dependents

Dependents can claim maintenance only if the deceased has left behind a self-acquired or ancestral estate. The claim must be made against:

• The heirs of the deceased in possession of the estate
• The claim must be proportionate to the value of the estate held

Such provisions ensure the welfare of vulnerable family members even after the death of the breadwinner.