Conditions & Effect of Adoption

This article is authored by Sujata Porwal, third year BA LLB (Hons.) student at Symbiosis Law School, Pune. The article presents detailed analysis of conditions and effect of Adoption under Hindu Law.

What is Adoption?

Adoption is the process of legally transferring the parental rights affiliated with a child to a person/couple. The rights of adoptive parents are similar to the rights of biological parents. Moreover, the adopted child also has access to rights similar to that of a biological child.

Adoption in India

In India, Hindu Adoption & Maintenance Act, 1956 (hereafter referred as ‘the Act’) governs the procedure of adoption. The term ‘Hindu’ is inclusive of multiple sub-religions like Buddhism, Jainism, Sikhism, etc. In other words, the Act governs every citizen of India who doesn’t belong to the sect of Muslim, Christian, Parsi or Jew. The aforementioned religions groups aren’t allowed to formally adopt a child in India owing to the constraints imposed by their respective religions.

Conditions of Adoption in India

Several guidelines have been curated to govern the process of adoption in the country. As per the requisites of the Act, a person must be a ‘Hindu’ and shall have the capacity to adopt a child. The capacity is decided by the provisions of Section 7 of the Act for a Hindu male and Section 8 of the Act for a Hindu female aspiring to adopt. Section 6 of the said Act lays down the fundamental requirements of a valid adoption.

The requirements, as per Section 6 are as follows:

The child must be capable of being taken into adoption
The parent willing to adopt shall possess the right and capacity to adopt a child
The person/organization giving the child for adoption shall possess the authority and capacity to do so
The adoption shall be in consonance with other criterions mentioned in the Act.

Case Laws

Kumar Sursen v. State of Bihar

Any person, other than a ‘Hindu’, as defined in the Act, shall be disqualified from adopting a Hindu child. The Act shall not recognize the adoption of a Hindu child by a person belonging to other religions.

M. Gurudas v. Rasaranjan

In order to establish that a valid adoption has taken place, it must be proved that an actual give and take ceremony has happened, in other words, there must be valid record suggesting that adoption has taken place.

Suma Bewa v. Kunja Bihari Nayak

It is obvious that adoption disrupts the natural line of succession. Therefore, the validity of adoption must be established completely in order to place the adopted child in the line of succession.

Devgonda Raygonda Patil v. Shamgonda Raygonda Patil

A landmark case in the history of adoption, it laid the premise that a lunatic person is not disqualified from being adopted under section 6 of the Act. The courts in this case expanded the horizon for lunatic kids by providing them the right to be adopted.

Capacity to Adopt

Section 7 of the Act confers the capacity to adopt, on a Hindu male. The criterion set for the Hindu male is that he:

Shall have attained the age of majority i.e., the age of 18 years or above
Shall be of sound mind
Shall have a living-wife, who must compulsorily grant consent for the adoption.

The consent of the wife can be set aside under exceptional circumstances like insanity. In case of multiple wives, consent from all of them acquires crucial importance in the process of adoption. Besides, if the wife has converted her religion or renounced the world then her consent loses importance.

Section 8 lays down the capacity of a Hindu female willing to adopt a child. The criterions for a Hindu female are as follows:

Majority (age of 18 or above)
Sound mind
Either a widow or divorcee, or
Unmarried

If a Hindu female has a husband who is alive, her capacity to adopt a child is withheld.

Rules for a Valid Adoption

Adoption of a son

The pre-condition for adopting a son states that there must not exist a living son, grandson as well as a great-grandson of the adoptive parent during adoption (Section 11 (i)). The criterion as to whether the living son is legitimate, illegitimate or adopted is irrelevant.

Adoption of a daughter

The sub-sub-section guarding the rights of adoption of a daughter can be paralleled with Section 11 (i). Section 11 (ii) states that a living daughter or granddaughter, whether legitimate, illegitimate r adopted, must not exist during the said adoption.

Adoption of a female child by a male parent

The Hindu male must qualify the conditions laid down in Section 7 and shall also comply with the requirements of Section 11 (iii) i.e., the male parent must be 21 years elder to the female child.

Adoption of a male child by a female parent

The Hindu female must also comply with the directions laid down in Section 8 and shall also be 21 years elder to the adoptive child.

Points to Note

A child mustn’t be adopted multiple times (Section 11 (v))
The child being adopted must necessarily be given up for adoption by his biological parents or legal guardian (Section 11(vi))
The biological parents or guardian must have the intention to give up the child for adoption
In situations where a child has been abandoned or where the parents of the child are not known, the intention must revolve around transferring him/her from the place where he was raised to his adoptive family.

Effects of Adoption

The adoption ahs a severe effect on the life of the child being adopted. Every minute thing related to the life of the child changes tremendously.

To secure the rights of the adopted child, Section 12 of the Act has laid certain rules:

An adopted child must be considered like a biological child in all aspects
The parents bear both the rights and obligations of the child
Similarly, the child also bears the rights and duties of a son/daughter.

However, there are certain duties that the adopted child must fulfil:

He must respect the rules of Hindu Marriage Act, 1955 and must refrain from having incestuous relationships with his/her birth family. The ‘sapinda relation’ shall be respected.
The child must continue to possess the property he/she possessed before adoption. However, the liabilities brought forth by such properties must also be fulfilled.
The child must not deprive his birth family, of the property that he possessed before adoption.
The adoption must be proven as valid for it to have any effect in general.

The court in Sri Chandra Nath Sadhu & ors v. The State of West Bengal & ors, stated that in cases of void adoption, no rights or obligations will be created on the adoptive family.

The adoptive parents shall continue to hold their right to dispose of their property by transfer or gift. However, an existing agreement that states the contrary might dispossess them from this right.

References

The Hindu Adoptions and Maintenance Act, 1956

CONDITIONS & EFFECT OF ADOPTION

This article is authored by Sujata Porwal, third year BA LLB (Hons.) student at Symbiosis Law School, Pune. The article presents detailed analysis of conditions and effect of Adoption under Hindu Law.

What is Adoption?

Adoption in India

Conditions of Adoption in India

The requirements, as per Section 6 are as follows:

The child must be capable of being taken into adoption
The parent willing to adopt shall possess the right and capacity to adopt a child
The person/organization giving the child for adoption shall possess the authority and capacity to do so
The adoption shall be in consonance with other criterions mentioned in the Act.

Case Laws

Kumar Sursen v. State of Bihar

M. Gurudas v. Rasaranjan

Suma Bewa v. Kunja Bihari Nayak

It is obvious that adoption disrupts the natural line of succession. Therefore, the validity of adoption must be established completely in order to place the adopted child in the line of succession.

Devgonda Raygonda Patil v. Shamgonda Raygonda Patil

Capacity to Adopt

Section 7 of the Act confers the capacity to adopt, on a Hindu male. The criterion set for the Hindu male is that he:

Shall have attained the age of majority i.e., the age of 18 years or above
Shall be of sound mind
Shall have a living-wife, who must compulsorily grant consent for the adoption.

Section 8 lays down the capacity of a Hindu female willing to adopt a child. The criterions for a Hindu female are as follows:

Majority (age of 18 or above)
Sound mind
Either a widow or divorcee, or
Unmarried

If a Hindu female has a husband who is alive, her capacity to adopt a child is withheld.

Rules for a Valid Adoption

Adoption of a son

Adoption of a daughter

Adoption of a female child by a male parent

The Hindu male must qualify the conditions laid down in Section 7 and shall also comply with the requirements of Section 11 (iii) i.e., the male parent must be 21 years elder to the female child.

Adoption of a male child by a female parent

The Hindu female must also comply with the directions laid down in Section 8 and shall also be 21 years elder to the adoptive child.

Points to Note

A child mustn’t be adopted multiple times (Section 11 (v))
The child being adopted must necessarily be given up for adoption by his biological parents or legal guardian (Section 11(vi))
The biological parents or guardian must have the intention to give up the child for adoption
In situations where a child has been abandoned or where the parents of the child are not known, the intention must revolve around transferring him/her from the place where he was raised to his adoptive family.

Effects of Adoption

The adoption ahs a severe effect on the life of the child being adopted. Every minute thing related to the life of the child changes tremendously.

To secure the rights of the adopted child, Section 12 of the Act has laid certain rules:

An adopted child must be considered like a biological child in all aspects
The parents bear both the rights and obligations of the child
Similarly, the child also bears the rights and duties of a son/daughter.

However, there are certain duties that the adopted child must fulfil:

He must respect the rules of Hindu Marriage Act, 1955 and must refrain from having incestuous relationships with his/her birth family. The ‘sapinda relation’ shall be respected.
The child must continue to possess the property he/she possessed before adoption. However, the liabilities brought forth by such properties must also be fulfilled.
The child must not deprive his birth family, of the property that he possessed before adoption.
The adoption must be proven as valid for it to have any effect in general.

The court in Sri Chandra Nath Sadhu & ors v. The State of West Bengal & ors, stated that in cases of void adoption, no rights or obligations will be created on the adoptive family.

References

The Hindu Adoptions and Maintenance Act, 1956

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