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ADOPTION UNDER HINDU

LAW
INRTODUCTION
 Desire of male offspring was natural

 Vedas declares”Endless are the world of those who


have sons;there is no place for the man who is destitute
of male offspring”.

 Object was to extend spiritual benefit to the father and


to continue the lineage.
NEED TO ADOPT A CHILD
 Desire
 Continuity of family
 Son delivers father from hell
 Attainment of heaven
 Duty to get by any means
adoption
 MANU:”A son equal in caste and affectionately
disposed whom his mother or father give with water at
a time of calamity is known as Dattaka son”
 Transplantation of son from family where he is born to
another family where he is given by natural parent by
way of gift.
 PRIVY COUNCIL observed that:foundation of
doctrine of adoption is duty which every hindu owes to
his
a.Ancestors to provide for the continuance of the line
b.solemnisation of neccessary rites.
c.Substitution of son for spiritual reason
d.Devolution of property
Adoption under present hindu law
 Legislature passed with secular object
 HINDU ADOPTIONS AND MAINTENANCE ACT
1956
 Changes incoporated into Act were demanded by
society
 All adoptions shall be made in accordance with
provisions of Act.
 Act does not recognise any ceremony
HINDU ADOPTIONS AND MAINTENCE ACT
1956
FEATURES:
 Female may be adopted
 Divorcee,widow,virgin entitled to adopt
 Male adopt only with the consent of wife
 Father cannot give child in adoption
 Adoptee age –below 15 yrs
 Datta homam-not necessary
 Adoptive father,mother not deprived of power to
transfer property
 Age of difference =21 yrs
ESSENTIALS OF VALID ADOPTION
 Person adopting must have

capacity and right to take adoption


 Person giving must have capacity to do so.
 Person adopted must be capable of being taken in
adoption
 Adoption must be in accordance with other conditions
u/s 11
CAPACITY OF MALE TO ADOPT-SEC 7
 Male –hindu,sound mind, not minor has capacity to
adopt son or daughter
 CONDITION:only with consent of wife
 Except
1.renounced the world
2.ceased to be hindu
3.declared as unsound mind
WIFE: legally wedded,wife living separately,wife of
voidable marriage
CAPACITY OF FEMALE TO ADOPT
Old concept-power was restricted
 She could not adopt w/o assent of husband
 She was deemed to act as agent of husband
 Adoption by widow was made only with of specified person
with condition precedent
Present law-
 Widow get right to adopt without any such authority
 Act authorize maiden,widow,divorced women
 Sec 8
Any female –sound mind-not minor-not married –if
married-marriage dissolved-husband dead-
renounced world-ceased to be hindu-declared to
unsound mind –has capacity to adopt son and
daughter
RIGHT OF MALE/FEMALE TO
ADOPT SEC-11
 Other conditions of valid adoption
 If adoption is of son –father/mother must not have –son
,son’s son,son’s son’s son(legitimate)
 If adoption is of daughter-father/mother must not have
daughter,son’s daughter(legitimate/adopted)
 Adoption by male of female –male must be 21 yrs older
 Adoption by female of male –female must be 21 yrs older
than male child
 Same child –not adopted simultaneously by two persons
 Ceremony-given and taken
Who may give in child adoption
1.father and mother or guardian-capacity to give
2.Father has right with consent of mother unless
------renounced,ceased,unsound mind
3.Mother has right if father is
----dead,renounced,unsound mind
4.If father and mother are
dead,renounced,abondoned,unsound mind,parentage
not khown—then guardian may give with permission
of court.
WHO MAY BE ADOPTED
 Hindu
 Not already adopted
 Has not been married
 Age below 15 yrs
Atluri Brahmanandam (d)Vs. Anne Sai Bapuji :AIR 2011 sc 545
Held--Section 10(IV) of Hindu Adoption and maintenance Act, provides that a
person to be adopted should not have completed 15 years of age--But if there is
custom or usages applicable to the parties permitting person who have
completed the age of 15 years being taking adoption than such a person could
also be validly adopted.
Ratio Decidendi:
"If any adoption is made according customs prevalent at that time then
presumption will arise in favour of such adoption."
Ceremonies under present law
 Sec-11(iv)
the child to be adopted must be actually given and
taken in adoption by parent or guardian or under their
authority with intent to transfer the child from the
family of its birth or in case of abondoned child or
child whose parentage is not known from the place or
the family where it has been brought up to the family
of its adoption
 Provided datta homam shall not be essential to the
validity of adoption.
Effect of adoption
 Child adopted becomes child of both spouse
 Adopted child deemed to be natural born child from date
of adoption for all purposes
-Basavarajappa v. Gurubasamma, (2005) 12 SCC 290.
 From such date all the ties of the child shall be deemed to
be severed and replaced by those created by adoption
 Child cannot marry any person whom he could not have
married if he continued in the family of his birth
 Property vested in adopted child before adoption shall
continue to vest
 Adoption shall not deprive adoptive f/m of power to
dispose by gift or will.
Ghisalal Vs. Dhapubai (Dead) by L.Rs. and Ors.
AIR2011SC644

 Whether mere presence of wife in the ceremonies


performed by her husband for adoption amounted to
her consent as contemplated by the proviso to Section
7 of the Hindu Adoptions and Maintenance Act —
Held, Consent of wife is mandatory for taking into
adoption by a male Hindu under proviso of Section 7
of the Hindu Adoptions and Maintenance Act
 “No valid consent can be said to be given to
adoption made by husband, when the wife was
just a mute spectator in the process .”
Re : Payal @ Sharinee Vinay Pathak 2009 (10) LJSOFT (URC) 9)
2010(1)BomCR434, 2009(111)

Issue
 whether a Hindu couple governed by the Hindu Adoptions and
Maintenance Act 1956, with a child of their own can adopt a child
of the same gender under the provisions of the Juvenile Justice
Act of 2000.
 RatioDecidendi:
When the child to be adopted is orphaned, abandoned or
surrendered child or a child in need of care and protection as
defined in Juvenile Justice Act, the bar imposed by Section 11 (i)
and (ii) of Hindu Adoption and Maintenance Act does not bar the
Hindu having biological child from adopting the child of same
gender.