What do you mean by adoption? ..... Discuss the changes brought by the Hindu Adoptions and Maintenance Act, 1956.

Question: What do you mean by adoption? Explain the requisites of a valid adoption. Discuss the changes brought by the Hindu Adoptions and Maintenance Act, 1956. [BJS 2021]

Answer

Adoption as the legislature has mentioned under the Hindu Adoptions and Maintenance Act, 1956, refers to the legal process by which a child becomes the “legal child” of his/her adoptive parents who are not the biological parents of the child. The process of adoption grants the adopted child with similar rights as the biological child of adoptive parents.

Adoption is the act of a person adopting as their legal child a person who is not their child. In India, there is no uniform legislation that deals with adoption for all religions. The Legal provisions to date are implemented only on Hindus which includes Buddhists, Jainists and Sikhs.

Section 6 of the Hindu Adoptions and Maintenance Act, 1956 (“HAMA”), states certain requirements for a valid adoption of a legal child. These are listed below:-

(i) the adopting person has the capacity and also the right to accept the adoption;

(ii) the person giving up the adoption has the capacity to do so;

(iii) the adopted person is capable of being adopted; and

(iv) the adoption is made in compliance with the other conditions specified in this Chapter.

Under HAMA, the following conditions are mandatorily required to be fulfilled for a valid adoption:-

1. Legal capacity of the adopter (Male/Female)

Male Hindu:

• He must be of legal age and a sound mind.
• A married man must take the consent of his wife except when she is incapable of giving consent for some reason or has renounced the world.

Female Hindus:

• Must be of legal age and a sound mind.
• All Unmarried women, widows or divorced women can adopt.
• Married women can adopt if their husband is dead, has renounced the world or has converted to another religion.

2. Ability of the person to give up an adoption

Only the biological parents or guardian of a child can give in to a child for adoption. The consent of the biological father is essential, unless he is dead, has renounced the world or has become of unsound mind. If the father is no longer alive or is of unsound mind for other reasons, the mother’s consent is required.

3. Legal capacity of the adopted child

• The child must be Hindu.
• The child must not have already been adopted.
• The child must be under 15 years of age and unmarried.

4. Compliance with the law: The adoption must be carried out in compliance with the formalities and conditions prescribed by law.

Amendments brought in Hindu Adoptions and Maintenance Act, 1956

The Hindu Adoptions and Maintenance Act, 1956, introduced significant changes to Indian adoption law. They are:-

1. Prior to the adoption of HAMA, there was no existing legal framework uniformly followed among Hindus. The 1956 Act lays down the standard procedure and formalities required in adoption, thus ensuring legal consistency.
2. Earlier, in Indian adoption law, only men had the right to adopt. However, with Amendment brought in 1956 Act, permits both men and women to adopt, thus promoting gender equality.
3. Earlier, there was a difference in the status of an adopted child and a biological child but with the introduction of the amendment, now the adopted child receives complete rights in his/her adoptive family as what a biological child would have gotten.
4. The Act has simplified the process of adoption by setting out clear guidelines and formalities so that adoption laws are easily understandable to common people.
5. Certain restrictions are also introduced in HAMA to prevent abuse of adoptive children. The statute prohibits the adoption of a child of the same sex as the adopter.
6. Now, the consent of the spouse plays a pivotal role in confirming and legalizing the adoption. This ensures that both the partners have mutually come to the decision, and particularly women's rights and say in the adoption process.