Adoption under Hindu Law
The Article ‘Adoption under Hindu Law’ by Jatin Rana gives a vivid explanation of how adoption has now become legal in India and the emphasis is on Hindu Law. Both males and females are conferred equal rights for adoption. Except for Hindu personal law of adoption, we cannot find any written personal laws of adoption for non-Hindus (Muslim,… Read More »
The Article ‘Adoption under Hindu Law’ by Jatin Rana gives a vivid explanation of how adoption has now become legal in India and the emphasis is on Hindu Law. Both males and females are conferred equal rights for adoption. Except for Hindu personal law of adoption, we cannot find any written personal laws of adoption for non-Hindus (Muslim, Parsi, Christian and Jews) but still, they can adopt under the shade of the Guardians and Wards Act, 1890 and Juvenile Justice (Care and Protection of children) Act, 2015.
This article widely deals with the adoption under Hindu law, particularly the Hindu Adoption and Maintenance Act, 1956. The author elaborately explains the limit to every edge of adoption like, who can be adopted, who can adopt and who can give the child for adoption. When the child is adopted, he is legally recognized as the natural child of the adoptive family thus, all rights in the same perspective are conferred to the adoptive child and also the adoptive family is recognized as the natural family and is conferred all the rights which the natural parents have over their child and his property.
Adoption under Hindu Law: A Brief Introduction
Adoption is the process of legally admitting a stranger (who is not above the age of 15 years)[1] into the family and is considered the natural branch of the adoptive family tree. In India, orphan and abandoned children become victims of trafficking which indulged them in child labour, prostitution, theft and other crimes. Even though India is having various child protection laws, but still a total number of 8,132 cases of human trafficking including the vast number of children were reported in India in 2016.
Under the shade of this vast number, it can clearly be imagined the number of cases of child trafficking in India in the 20th century. To overcome this vast trap of trafficking, adoption was made legal under the British ruling covered by the Guardians and Wards Act,1890 (hereinafter known as GWA) and after independence new law under Hindus was enacted, the Hindu Adoption and Maintenance Act, 1956 (hereinafter known as HAMA) which grant Hindus to adopt Hindu child under the legal ambit of this Act. Since no written personal laws are available for non-Hindus., so they can seek adoption under GWA only.
Who can be adopted
The person who is adopted under HAMA should be a Hindu and should not be the adoptive child of any other person. The person should not be married and should be under the age of fifteen years. The matrimonial status and the age of the adopted person can be relaxed by the court if there are any customs and usages on the part of the adopting person which allow him to do so.[2]
Persons capable of giving in adoption
The capacity of giving any person for adoption is only available to the natural father and mother who gave birth to the adopting person. They both have equal rights in giving the child for adoption. Neither of the natural parents has the right to give the child for adoption without the consent of the matrimonial partner. They can give up their child for adoption without the consent of their partner only when the partner: –
- is dead
- has renounced the world
- ceased to be Hindu
- declared by the court as of the unsound mind
If both the natural parents are dead, ceased to be Hindu, renounced the world or are declared as of unsound mind by the court or the parents of the child are unknown, then, in that case, the guardian of the child can either give him for adoption or himself be the adoptive parent of the child but not without the prior permission of the court.
Who can Adopt
Under HAMA, both males and females are provided equal rights for the adoption of a child or daughter.
Hindu male
A Hindu male who is of sound mind and is not minor can adopt a son or daughter. If he is married, it is important for him to take the consent of his wife for adoption. If the person has more than one wife, the consent of all the wives is important for adoption. The consent of the wife can be relaxed if she is of unsound mind, ceased to be Hindu, renounced the world or is dead.
If at the time of the adoption, the adopting person is married, his wife will be known as the adoptive mother and if the person marries after adoption, his wife will be known as the step-mother of the adopted child. In the case of more than one wife, the senior-most wife will be known as the adoptive mother and the rest as the step-mother.
Hindu female
A female Hindu who is of sound mind and is not a minor can adopt a son or daughter. If she is married, the consent of her father for adoption is important. Before 2010, married Hindu female was not allowed to adopt a child but only to give consent for the adoption on the part of his husband. She could only adopt only when her husband is dead, renounced the world, ceased to be Hindu or is of unsound mind.[3]
But after 2010, a Hindu married female was allowed to adopt a child only with the consent of her husband. A widow or a divorced woman can also adopt a child if she is not having a son or daughter of her own or of her daughter at the time of the adoption.[4]
If at the time of the adoption, the adopting person is married, her husband will be known as the adoptive father and if the person marries after adoption, her husband will be known as the step-father to the adopted child.
Conditions for a valid adoption
The validity of the adoption depends on the given grounds: –
- When the adopting party adopts a son, he should not have his own son, grandson or great-grandson (legitimate or adopted) living at the time of adoption.
- When the adopting party adopts a daughter, he should not have his own daughter or granddaughter (legitimate or adopted) living at the of adoption.
- If the adopting party and the adoptive child are of the opposite gender, the age gap between them must be at least 21 years. [5]
- For the adoption, the only natural parent or the guardian (with the prior permission of the court) should give the child for adoption.
- The adopted child should be under the age of 15 years and should be unmarried at the time of the adoption. The age and matrimonial status of the child can be relaxed by the court if there are any customs and usages which allow them to do so.
Rights of the adopted child
When a person is adopted, he becomes the natural child and the person who adopts becomes the natural parent of the child.[6] The adopted child gets the coparcenary right under Hindu undivided family same as the natural child of the family.
- The child cannot marry any person whom he could not marry if he would have remained in the family of his birth.
- If the child is vested with any property before adoption, he will continue to vest if there is no person of the family of his birth who is obliged to be maintained by that property. The child cannot deprive any person who has a right to the vested property.
- The adopted child cannot demand to move back to the family of his birth because no legal adoption can be cancelled.
Rights of the Adoptive Parents
As mentioned above, the adoptive parent is the natural parent of the adopted child. Thus, he gets all the rights conferred to the natural parents under GWA and Hindu Minority and Guardianship Act, 1956 (hereinafter known as HMGA) if the child is a minor. He has the right to do any act which is for the welfare of the child and the protection of his property.
The natural parent has no right to mortgage or transfer any part of the immovable property of the minor without the prior permission of the court. Also, no court can grant permission for the same if it is not for the welfare of the minor child. The natural parent cannot lease the immovable property for more than 5 years or for the time of one year beyond the date when the minor attains the age of majority. If any natural parent does so, it will be voidable on the part of the child.
Prevention of Child Trafficking
Section 17 of HAMA restricts the payment of any amount for the adoption of the child because, in most cases of trafficking, it is the primary stage. People after adopting children in exchange for money, indulge them in child labour, prostitution, theft and many other crimes. They also pay money in the greed of the property vested to the adopted child. To prevent this, it is made punishable to give or agree to take the sum of money in exchange for the child. If anyone does so, he will be imprisoned for a maximum time of 6 months and a fine.
Conclusion
In the whole process of adoption, the welfare of the child is considered the supreme consideration to the court. The Hindu law has bounded the limits of every edge of the adoption like, who can be adopted, who can adopt and who can give a child for adoption. Under the shade of Article 23 of the Constitution of India, Section 17 of HAMA, 1956 restricts the payment of money in exchange for the adoption which may lead to the trafficking of the children.
The rights of adoption in Hindu law are only granted to Hindu males and Hindu females. No rights are conferred to the community of the third gender. Thus, the question arises that how the community is adopting children of the third gender? Actually, when the child of the third gender is born in India, he is gifted to the community of the third gender. Since it is not legally allowed and is void in India, but still, it is followed.
“You know, I truly believe adoption is one of the greatest unheralded blessings in the world. Think how beautiful it is to give a child a home and to become a family because you choose to! Maybe that’s the best way to make a family, don’t you think?” – Kristin Harmel
References:
[1] Hindu Adoptions and Maintenance Act, 1956, Available Here
[2] HanmantLaxmanSalunke v. Shrirang Narayan kanse, AIR 2006 Bom 123
[3] Malati Roy Chowdhury v. SudrindranathMjumdar, AIR 2007 Cal 4
[4] Ghisalal v. Dhapubai, AIR 2011 SC 644
[5] NemichandShantilalPatni v. Basantibai, AIR 1994 Bom 235
[6] Basavarajappa v. Gurubasamma, (2005) 12 SCC 290