ADOPTION

Oxford Act of a person of taking as his

Companion to lawful child, a person who is not in
Law fact his child
Is Right to Adopt included
under Right to Life u/a 21
of the Constitution of
India?
 Civil death of a child in the natural family and
legal birth of the same in the adoptive family
Transplantation of a child from the family in
which s/he is born, into another family by way
Effects of of GIFT made by his/her natural parents to the
Adoption adopting parents.
On adoption, ties of the child with his old
family are severed, & s/he is taken as being
born in the new family, acquiring rights, duties
& status in the new family.
 Offer oblations of water to a deity
Patriarchal Perform solemn rite accompanied with
roots of origin oblations
of adoption Secure an heir who would perpetuate the
adopters name
 Utmost importance was attached to a
son
Debts to rishis, Gods & ancestors were
said to be discharged by giving birth to a
son
Ancient Thus, only a son could be adopted, to
Tradition of substitute for failure of a male issue
Adoption Daughter could be adopted only by way
among Hindus of customary law
Widows under ancient law werent
allowed to adopt sons for their spiritual
benefit
Due to HAMA, ancient law no more
applies
 Diverse views
Foster-parent relationship
Allowed if custom permits it
Not prohibited per se, depends on
Adoption in customary practice (Hindu influence)
Muslim law Prophet Mohammad himself was
brought up by his uncle Abu Talib
Ss. 41, 42, Juvenile Justice (Care &
Protection of Children) Act, 2000
applicable
 No specific mention of adoption
No banning too
Christian &
Parsi laws Ss. 41, 42, Juvenile Justice (Care &
Protection of Children) Act, 2000
applicable
 Issues:
Is adoption prohibited under Christian law? NO
Can an adopted son of a Christian couple inherit
Philips Alfred the adoptive parents property? YES
Malvin v. Plaintiff is the adopted son of the defendants
Y.J.Gonsalvis, natural parents, who are now deceased.
AIR 1999 Ker Plaintiff is suing the defendants for his share in
the parents property.
187
Held right of adoption is included u/a 21,
Constitution of India. Adoption not banned
under Christian law
 Consolation & relief to childless persons
To despise a prospective heir who could take
property in the absence of a son
Reasons for To rescue the helpless, destitute, unwanted or
orphan children by providing them with
adoption parents & a home
Courts usually do not enquire about the motive
behind adoption, unless it affects the best
interest of the child
 Revolutionary changes in the Hindu law of adoption
Not applicable to adoptions that have happened before 1956
Applicable to adoptions that have happened before 1956 only if
litigation is pending
HAMA 1956 Old law would continue to apply if HAMA doesnt have provision
w.r.t. anything
Only a Hindu can adopt another Hindu under HAMA
Actual giving & taking ceremony (datta homam) should take place
Even a lunatic can be adopted
 Male/ Female
Who can adopt Sound mind

under HAMA Above 18 years old

With spousal consent, unless the spouse has completely & finally
1956? renounced the world/ ceased to be a Hindu/ has been declared by
a court of competent jurisdiction, to be of unsound mind
 Malati Roy Chowdhury v. Sudhindranath Majumdar,
AIR 2007 Cal 4:
During subsistence of a marriage, a wife has no right to
adopt, only to give consent in adoption if taken by her
Right of a husband
female Hindu BEFORE 2010 AMENDMENT
to adopt (s. 8): Ghisalal v. Dhapubai, AIR 2011 SC 644:
Regressive A married female Hindu cannot adopt a son or a
daughter during the lifetime of her husband, unless the
Judgements husband is of unsound mind or has renounced the world
A female Hindu who is unmarried or a widow, or a
divorcee can also adopt a son to herself, provided she
has no Hindu daughter or sons daughter living at the
time of adoption
AFTER 2010 AMENDMENT
 Overriding effect of the Act (s. 4)
Capacity to take in adoption (ss. 7, 8):

Old law HAMA 1956

Age of discretion
Only a male could adopt
Only a son could be adopted
HAMA 1956 Consent of wife not reqd.
Unmarried woman couldnt
adopt
Widow could adopt only with
husbands authority
Wife couldnt adopt without
husbands consent
Age of majority
Both male & female can adopt
Even a daughter can be adopted
Consent of all wives mandatory
No such bar
No such authority needed
Husbands consent not reqd. if he
has renounced the world/ has
ceased to be a Hindu/ is of
unsound mind
 Old law
Primary right with the father only,
mothers consent not necessary
HAMA 1956
Either the mother or the father can
equally give their child in adoption,
with each others mandatory
consent

Persons Either the father or the mother only Guardian can give in adoption, with
could give in adoption (not guardian) prior consent from the court, if both
capable of parents are dead/ unable to give
consent/ abandoned the child/
giving in parentage not known

adoption (s. 9)
-Parents do not include adoptive parents/ step parents
-Guardian may be testamentary or court-appointed
-2010 AMENDMENT
-Parents neednt necessarily be Hindus while giving the child in
adoption
-Can minor parents give in adoption?
Duty of court
wrt Guardian Welfare of the child
giving the child Wishes of the child (according to age and understanding)

in adoption s. No payment/consideration in lieu of adoption

9(5), HAMA
 Hindu male/female
Orphan (can be given in adoption by guardian)
Not already been adopted
Unmarried, unless theres a contrary custom
Who may be Less than 15 years of age, unless theres a contrary custom

adopted? (s. Inter-caste adoption allowed

Old law: if adoptive father & biological mother of the child were
10) sapindas/ within prohibited degrees, no adoption can take place:
THIS BAR HAS BEEN REMOVED
No preference of a relative over a stranger (child to be adopted)
Illegitmacy, physical or mental incapacity not a bar
 If a son is to be adopted, either of the adoptive parents shouldnt
have a Hindu son, sons son or sons sons son LIVING at the time
of adoption
If a daughter is to be adopted, either of the adoptive parents
shouldnt have a Hindu daughter or sons daughter LIVING at the
Conditions of a time of adoption
valid adoption In case a single parent adopts a child of opposite gender, min. age
difference between the two should be 21 years
(s. 11) Datta homam ceremony not essential
Physical act of giving and taking is essential and sufficient
Simultaneous adoption of a child by 2 or more persons not
recognized
 Old law HAMA 1956
Adopted son didnt share property Equal share
equally with an after-born natural son

A valid adoption by widow divested her No divesting of property

of her husbands property

Position unclear Property vested in the adopted child

before adoption continues to vest in
Effects of him/her after adoption + obligation to
maintain relatives in the birth family
adoption (s. Adopted child becomes coparcener in
12) the adoptive family

Adopted child cannot marry anyone

whom s/he couldnt have married if
they were in natural family

Adopted child shall not divest anyone

of their property
 Adoptions in violation of HAMA are null and void
More than one wife: senior-most in marriage = adoptive mother;
Miscellaneous other wives = stepmothers
Adoption by bachelor/widower: subsequent wife = step mother
provisions
Adoption by spinster/widow: subsequent husband = step father
No payments whatsoever to be involved in adoption
Adoption by By: single parent

and to To: vicarious adoption by the spouse when their partner adopts
 DOES PERFORMANCE OF REQUISITE RITUALS AMOUNT TO
VALID ADOPTION UNDER HINDU LAW? Yes
Saroja v. Mudaliar had two children, one male and one female. The son had
died, leaving behind his widow Saroja. Mudaliar adopted his
Santhilkumar, grandson (daughters son), by registering an adoption deed, and
performing the ceremony. He then bequeathed all his property to
(2011) 11 SCC his daughter and adopted son. Saroja challenged this.
483 Held adoption was valid, hence, adopted son entitled to the
property of adoptive father.

Adoption diverts the normal and natural course of succession.

Role of wifes Express or implied

consent Implied: taking a prominent active part in the adoption ceremony

Ghisalal v. DOES MERE PRESENCE OF WIFE IN ADOPTION CEREMONY
Dhapubai, AMOUNT TO HER GIVING CONSENT? No
IS WIFES CONSENT MANDATORY? Yes
(2011)2 SCC
2010 AMENDMENT: S. 8, 9, HAMA
298:
 DOES THE ADOPTED CHILD ACQUIRE THE CASTE OF THE
ADOPTIVE PARENTS AFTER ADOPTION?
Khazan Singh WILL SUCH ACQUIRED CASTE BE TREATED AS CASTE OF THE
v. UOI, AIR ADOPTED CHILD BY BIRTH?
YES
1980 Del 60 Appellant was adopted by an SC couple. S. 12 for all purposes;
all ties severed
 Adoption during the fathers lifetime: adopted son born in the
new family on the date of adoption
Doctrine of Adoption after fathers death: adopted son born on the date of
Relation Back death
To protect the adopted sons interest in the fathers property
 Strict proof
BOP on person adopting
Mere adoption deed not a conclusive proof, but a presumption
towards validity of adoption is created upon proof of a deed
PROOF OF This presumption is rebuttable
ADOPTION If a lot of time has elapsed since adoption, BOP to prove invalidity
of adoption lies on the person alleging it (Presumption in favour of
ancient adoptions s. 16)
CUSTOMARY ADOPTIONS INVALID (EXCEPTIONS: ABOVE 15
YRS AND MARRIED)
 CARA Guidelines Governing the
Inter-country Adoption of Children, 2011:
Adoptions Adoption of a child/ children by
persons having status of NRI/ OCI/
PIO/ Foreign Nationals
 First preference to in-country adoption, only after this, inter-
country
Laxmikant Foreign applications to be sponsored by social/child welfare
agency recognized/licensed by the particular foreign govt.
Pandey v. UOI, Signature of biological parents on relinquishment deed, their
(1984) 2 SCC addresses, information regarding birth of child and its
background, attested by 2 witnesses
244 No adoption within 3 months of the birth of the child
JJB is the guardian of abandoned children
 Primary responsibility of a childs care & protection childs family
S. 41 Guardian (JJB) to give the child in adoption after court
order
State recognition to institutions/ voluntary organizations in each
Juvenile district as specialised adoption agencies, where children are
declared as free for adoption by CWC.
Justice (Care & At least two members of CWC should declare the child as free for
Protection of adoption
2 months waiting period for adoption of surrendered children
Children) Act, Consent of the child
2000 Any person, irrespective of marital status or no. of children, can
take in adoption
S. 42 foster care: temporary care till child gets adopted
Muslims, Christians, Parsis, Jews to adopt under this Act
 HAMA vs. JJ Act wrt same gender adoption
IOS Latter Act prevails over the former (when both are specific
Acts pertaining to the same subject matter)
Harmonious Hence, JJ Act creates an exception in case an abandoned child is
adopted
interpretation
Right to adopt is a part of Art 21, Constitution of India
In the matter of adoption of Payal @ Sharinee Vinay Pathak (Bom
HC) - 2009
 Pre-2010 amendment (married Hindu woman didnt have capacity
Adoption by to adopt)

Proxy She could adopt through a specific power of attorney s. 11(vi),

HAMA
 Palak

ADOPTION IN Adoption by a Parsi widow on the 4th day of her husbands death,
for the limited purposes of performing annual religious
PARSI LAW ceremonies.
No property rights