Requisites of a Valid Adoption: Who may Adopt, Who may give in Adoption and Who can be Adopted

This Article on adoption law will provide an in-depth analysis of requisites of a valid adoption under Hindu Adoption and Maintenance Act, 1956 (HAMA) which are listed under Section 6 and involves provisions related to the person who may adopt, who can give a child in adoption and who is capable of being adopted, in compliance with other provisions of the Act.

The Cambridge Dictionary defines adoptions as – “The act of taking another person’s child legally into your family to raise as your own child”^[1].

Section 2(2) of Juvenile Justice (Care and Protection) Act, 2015 states that-

“Adoption means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child”.

Introduction

Adoption means a legal transfer. Generally, new couples prefer to adopt a child not to give birth to a new child. If we see, in India, orphanages are full of children, as they have no parents to take care of them.

Today, many parents give birth to a girl and throw her in the dustbin and don’t even think twice. This crime is increasing day by day. In today’s generation also, people don’t understand the value of a girl child after having high education qualifications.

Half of the population of children is alone, they don’t have legal parents to take care of them. Adoption is the best way to give them a good life. It also helps in maintaining the population of the country. Hence, new couples of our generation are working on this matter by adopting the child and giving them a better life.

Why Adoption?

In Lakshmi Kant Pandey v. Union of India,^[2]Justice P.N. Bhagwati held that:

“Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family. The most congenial environment would, of course, be that of the family of his biological parents.

But if for any reason it is not possible for the biological parents or other near relative to look after the child or the child is abandoned and it is either not possible to trace the parents or the parents are not willing to take care of the child, the next best alternative would be to find adoptive parents for the child so that the child can grow up under the loving care and attention of the adoptive parents. The adoptive parents would be the next best substitute for the biological parents”.

Adoption Legislations

In India there are three legislations that enable an Indian citizen to adopt a child:

1. Guardian and Wards Act of 1890

The Personal laws of Muslim, Christian, Parsis and Jews in India don’t permit and recognize Adoption.

Section 8 (a) of the Guardian and Wards Act reads as follows-

“the person desirous of being, or claiming to be, the guardian of the minor”.

Thus, if any person belonging to these religions desires to adopt a child, he/she can take recourse of the Guardian and Wards Act. Since the Act allows only “Guardianship”, the child becomes a ward and not an adoptive child. This implies that when a child turns 21, he/she no longer remains a ward and assumes an individual identity separate from that of the parents.

2. Juvenile Justice (Care and Protection) Act of 2015

Chapter VIII of the Juvenile Justice (Care and Protection of Children) Act, 2015 deals with adoption of orphans, abandoned and surrendered children. Section 58 of this Act reads “Indian prospective adoptive parents living in India, irrespective of their religion, if interested to adopt an orphan or abandoned or surrendered child, may apply for the same to a Specialized Adoption Agency, in the manner as provided in the adoption regulations framed by the Authority”.

3. Hindu Adoption and Maintenance Act of 1956 (HAMA)

Adoption under HAMA will be discussed in detail in the following sections.

Adoption under Hindu Law

Hindu Law is the only Personal Law in India that places an adoptive child at par with the biological child. Under the old Hindu Law, only a male child could be adopted because a son was important for the last rituals and continuance of lineage and dying without a son meant that the person goes to hell.

Only a male was allowed to adopt and the consent of his wife was not a prerequisite. Moreover, a female was not allowed to adopt under the old Hindu Law. The Hindu Adoption and Maintenance Act of 1956 has introduced a lot of progressive changes in the Old Hindu Law for adoption and has tried to make Adoption law, gender-neutral. The Hindu Adoptions and Maintenance Act (HAMA) was enacted in India in 1956 as part of the Hindu Code Bills^[3].

Who can adopt under HAMA?

Applicability of HAMA has been provided under Section 2 of the Act. As per this section, HAMA is applicable to any person who:

1. is a Hindu by religion^[4] or
2. who is a Buddhist, Jaina or Sikh by religion.^[5]

Certain other criteria are provided by the Act that has to be fulfilled in order to be eligible for adopting a child. These eligibility criteria are as follows:

• Section 7 of HAMA lays down the eligibility criteria for a Male Hindu to take in adoption

It reads: “Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. Provided that, if he has a wife living, 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 declared by a court of competent jurisdiction to be of unsound mind.”

Explanation – If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso. If a Hindu male wants to adopt a female, the age difference between the adoptive father and the daughter must be twenty-one years^[6].

The court in the case of Babubarelal v. Gulzari Devi 1979^[7] held that – “The person taking in adoption must not suffer from idiocy or insanity; he must have the capacity enough to understand the nature of the Act and what would be the legal effects of adoption.” There is a presumption that a person of unsound mind cannot understand the repercussions and Legal effects of their actions and hence, only a person of sound mind can adopt.

Also, the court in the case of Krushna Chandra Sahu And Anr. v. Pradipta Das (1982)^[8] held that where the three disabilities (renunciation, conversion or unsoundness of mind) of the wife provided in the section have not been established, the consent of such wife would be mandatory for a valid adoption. Even if there was an adoption it will be invalid due to non-compliance with the requirements of the proviso to Section 7 of the Act.

Furthermore, the court in the case of Badrilal v. Bheru 1986^[9] held that where there is more than one wife, consent of all wives is mandatory for a valid adoption and the senior-most in marriage is deemed to be the adoptive mother and all other wives are assumed to be, stepmothers.

Similarly, the court in the case of Bholooram (Bhola) And Ors. v. Ramlal^[10] held that “if a wife has absconded to an unknown place, it cannot be construed as her death in the eye of law unless the requirements of Section 107 of the Evidence Act are fulfilled. So long as the woman continues to be a wife in the eye of the law, her consent is necessary for the validity of adoption under Section 7 of the Act”. The word wife indicates subsisting marriage and in case of divorce consent of ex-wife is not required.

• Section 8 of HAMA lays down the edibility criteria for a Female Hindu to take in adoption

Before substitution Section 8 stated that any female Hindu-

1. who is of sound mind,
2. who is not a minor, and
3. who is not married, or if married,
4. whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world
5. or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind

has the capacity to take a son or daughter in adoption.

It gave limited power to a Hindu female to adopt. But this lacuna was removed by Personal Laws Amendment Act (Act 30 of 2010). The substituted Section reads:

“Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. Provided that, if she has a husband living, she shall not adopt a son or daughter 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 declared by a court of competent jurisdiction to be of unsound mind.”

Hence, the criteria for adoption by females is now at par with the criteria for males i.e soundness of mind and attainment of majority are the prerequisites for adoption and where the female is legally married then, consent of the husband is also mandatory.

Only renunciation, conversion or unsoundness of mind of the husband can excuse a female from the requirement of consent. If a Hindu female wants to adopt a Hindu male, the age difference between the adoptive mother and the son must be twenty-one years^[11].

In a case where adoption is by a female Hindu who is married and whose husband is dead, or has completely and finally renounced the world, or has been declared by a court of competent jurisdiction to be of unsound mind, the actual adoption would be by the female Hindu, while the adoption will be not only to herself, but also to her husband who is dead, or has completely and finally renounced the world or has been declared to be of unsound mind.

This is because the child loses all the rights in the family by birth and those rights are replaced by the rights created by the adoption in the adoptive family. Thus, the child would obtain those rights in the capacity of a member of that family as an adopted child of the deceased husband of the widow, or the married female, taking the child in adoption.

Since a void marriage is treated as void ab initio and the status of wife is at par with that of an unmarried woman, she can adopt without the consent of the husband from invalid marriage. But since the child of an invalid marriage is still regarded as a legitimate child,^[12] she is prohibited from adopting a child of a similar gender.

The court in case of Vijay Lakshmana v. BT Shanker^[13], the apex court held that “A widow doesn’t need the permission of co-widow for adoption”.

Capacity to give in Adoption

Initially, only a natural father or mother could give a child in for adoption and if the father was alive then only he could give a child in for adoption but the consent of the mother was required. Mother only has the right to give a child in for adoption in case of death, conversion, renunciation or unsoundness of mind of the father.

After the 2010 amendment, under Section 9 of the Act, only the natural father or mother or the guardian of a child has the capacity to give a child in for adoption. However, now under Section 9, the father and the mother both have equal rights to give the son or daughter in adoption.

But both need the consent of the other parent unless one of them 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. The expression “father” and “mother” covers only biological father/mother and not adoptive father/mother.

The apex court in the case of Dhanraj v. Smt. Suraj Bai^[14] held that a stepmother could not give her step-son in adoption. Only a natural parent can give a child in for adoption.

Where both the father and mother are dead or have renounced the world or have abandoned the child or have been declared by the court of competent jurisdiction to be of unsound mind or where parentage of child is not known, the guardian of the child may give the child for adoption by the permission of the court. A Guardian can be a Testamentary guardian or a guardian appointed by the court.

Who may be adopted?

According to Section 10 of the Act, only a child who fulfils the following conditions can be adopted:

1. The child must be a Hindu – Since HAMA is applicable only.
2. The child has not already been adopted – Since section states that only natural parents or guardians can give a child in adoption. Adoptive parents cannot give a child in for adoption. Double adoption is not permitted under HAMA.
3. He or She is not married unless there is a custom or a usage applicable to the parties which permits persons who are married or have been married be taken in adoption.
4. A child has not completed the age of 15 years unless there is a custom or a usage applicable to the parties which permit persons who have completed the age of 15 years to be taken in adoption: If custom is not pleaded, adoption of the child above the age of 15 would be invalid^[15]. In a case where a married man was adopted and subsequent to the adoption a child was born, it was held that the adoption was valid as it was allowed in the custom and the child born would be a part of the adoptive family^[16].

In Punjab, the general custom amongst the Jats is that a person who is above the age of 15 years and married can be adopted. Hence, such adoption is allowed^[17]. But such Customs must be pleaded and proved. If this condition is not fulfilled that the adoption will be regarded as invalid.

Some other conditions for a valid adoption

The adoptive father or mother should not have a child of the same gender as that of the adoptive child. This implies that if an adoptive father or mother already has a biological or adoptive son, then he/she cannot adopt another son^[18] and the same implies for daughter^[19] as well.

This restricts the maximum number of adoptions to two. This also applies when a child exists from an invalid marriage, even that child is treated as a legitimate child.

Section 11 provides that the same child cannot be adopted simultaneously by two or more persons.^[20] This means a husband or a wife (with the consent of the other) can adopt a child but two friends or unmarried persons together cannot adopt a child.

It also provides that the adoption must be given and taken in by the parents or guardian concerned or under their authority with the intent to transfer the child from the family of its birth to the family of its adoption and in case of an abandoned child or child whose parentage is not known, from the place of a family where it has been brought up to the family of its adoption.

Conclusion

This article discusses in entirety the laws related to adoption in India. The effect of an adoption is given under Section 12, whereby, it states that once a valid adoption takes place, the adoptive child's ties with his/her birth families permanently are severed for all purposes and these ties are replaced by those created by the adoption in the adoptive family.

He is entitled to all the rights as if he were born in that family on the day of adoption. The objective is to build a legal relationship between the adopted child and the adoptive parents so that at a later stage the child is not turned destitute and lonely.

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^[1] Adoption definition retrieved from https://dictionary.cambridge.org/dictionary/english/adoption.

^[2] Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469, retrieved from MANU/SC/0054/1984.

^[3] https://web.archive.org/web/20090705004739/http://indiacode.nic.in/fullact1.asp?tfnm=195678

^[4] Section 2(1)(a) HAMA, 1956

^[5] Section 2(1)(b) HAMA, 1956

^[6] Section 7 (iii) HAMA, 1956

^[7] Babubarelal v. Gulzari Devi, 1979 All LJ 1333

^[8] Krushna Chandra Sahu And Anr. v. Pradipta Das, AIR 1982 Orissa 114

^[9] Badrilal v. Bheru, 1986 (1) HLR 81

^[10] Bholooram (Bhola) And Ors. v. Ramlal, AIR 1989 MP 198

^[11] Section 11 (iv) HAMA, 1956

^[12] Section 16 Hindu Marriage Act, 1955

^[13] Vijay Lakshmana v. BT Shanker citation, (2001) 4 SCC 558

^[14] Dhanraj v. Smt. Suraj Bai, AIR 1975 SC 1103

^[15] M.D. Gopalaiah v. Smt. Usha Priyadarshini And Ors., AIR 2002 Karnataka 73.

^[16]Tarabai v. Bagonda, AIR 1981 Bom. 13

^[17] Amar Singh v. Tej Ram, AIR 1982 P&H 282

^[18] Section 11(i) HAMA, 1956

^[19] Section 11(ii) HAMA, 1956

^[20] Section 11(v) HAMA, 1956

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1. Hindu Law; Notes, Case Laws And Study Material