Can a Hindu widow adopt a son to her deceased husband? Answer your justification in the light of provisions....

Question: Can a Hindu widow adopt a son to her deceased husband? Answer your justification in the light of provisions and decided case law under Hindu Adoption and Maintenance Act, 1956. [JJS 2018]

Find the answer to Hindu Law only on Legal Bites. [Can a Hindu widow adopt a son to her deceased husband? Answer your justification in the light of provisions and decided case law under Hindu Adoption and Maintenance Act, 1956.]

Answer

Yes, a Hindu widow can adopt a son to her deceased husband as per the provisions of the Hindu Adoption and Maintenance Act 1956. ‘Section 8’ of Hindu Adoption and Maintenance Act, 1956 lays down the provision regarding the capacity of a female Hindu to take in adoption. The provision states that the following female Hindu is eligible to adopt a son:-

(a) Who is of sound mind

(b) Who is not a minor, and

(c) Who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, can take a son or daughter in custody.

There are certain conditions which are mandatorily required to be followed to adopt a child under the Hindu Adoption and Maintenance Act 1956 which are (concerning widows), mentioned below –

1. There has to be 21 years age gap between the widow and the adoptive child which means the widow should be 21 years older than the adoptive

2. In case there exists a biological son/daughter of the widow already then the adoptive child of the opposite sex has to be adopted and not of the same sex/gender.

3. Once the adoption is made then this process legit becomes irrevocable, meaning that there is no way the child which has been adopted would again become a non-adopted

4. Children who are to be adopted must be below the age of 15 years. That denotes that before the child attains the age of 15 years child has to be adopted and not after.

Doctrine of Relation Back

This doctrine states that – If a widow adopts a son after having consent from her husband or having authority over her husband then the adoptive son is deemed to have come into existence in the new family on the day when the husband died.

The theory is against the rule that a property once vested cannot be divested. The theory was based on the legal fiction that the continuity of the line of the adoptive father should not break.

There are 2 exceptions to this doctrine of relation back which are as follows:-

1. Any Lawful alienation effected before the adoptive child came into the family and after the death of the husband is legal and the adoptive son is binding to that effect.

2. If the property by inheritance went to collateral, then the adoptive child who entered the family cannot divest the property which was vested in the heir of collateral.

Section 12 of the Act revolves around this doctrine stating the effects of adoption. This provision runs down as below–

“An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:

Provided that—

(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;

(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.”

In the case of Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar (1974), the Supreme Court held that according to the doctrine of relation back, if a widow adopts a son, the adoption would be considered retrospective in nature as if the child was adopted before the father’s death.

The doctrine of relation back was also explained in the case of K.R. Sankaralingam Pillai v. Veluchami Pillai (1942):

1. The doctrine was accepted as a rule of Hindu law wherein the adoption is considered retrospective to the date of the father’s death.

2. The court also recognised the right of the adopted son to demand partition.