1.

(A) Personal Details

Role Name Affiliation

Principal Investigator Prof. Sumita Parmar Allahabad University, Allahabad

Paper Coordinator Dr. Kiran Gupta Associate Prof. In charge

Law Centre 2 New Delhi

Content Writer/Author (CW) Dr.P.B.Pankaja Associate Professor Law Faculty

University of Delhi

Content Reviewer (CR) Prof. Sumita Parmar Allahabad University

Language Editor (LE) Prof. Sumita Parmar Allahabad University

(B) Description of Module

Items Description of Module

Subject Name Women’s Studies

Paper Name Women and the Law

Module Name/ Title Women’s right to take or give a child in

adoption

Module ID Paper-7, Module- 17

Pre-requisites The student should be aware of some of the

social and economic issues involved in the
question of adoption
Objectives To make the student aware of the complex nature of
adoption and the legal necessities that have to be
completed
Keywords Adoption, parents, child, independence, single
 parents, religion

Topic: Women’s right to take or give a child in adoption

Contents:
1. Introduction
2. Women’s right to take or give a child in adoption under Hindu Law
2.1. Position under Classical Hindu Law
2.2. Position under Hindu Adoptions and Maintenance Act, 1956 as amended in
2010
2.2.1. Legal status of Hindu woman in taking a child in adoption
2.2.2. Legal status of Hindu woman in giving a child in adoption
2.2.3. Legal status of girl child to be given and taken in adoption
2.2.4. Maternal and paternal affiliation in adoption
2.2.5. Other conditions for a valid adoption
2.2.6. Registration of adoption
2.2.7. Assessment of the Act

3. Status of woman to adopt in other personal law

4. Status of woman to adopt under Juvenile Justice (Protection and care) Act, 2000 as
amended in 2006
5. Conclusion

1. Introduction
Adoption is a process whereby a child’s affiliation with its genitive family is severed
and affiliation to a new family, called adoptive family is created. Adoption establishes
parent-child relationship between persons not biologically related. It gives parenthood
to childless couples and single parents. It also satisfies the desire of those parents who
have a child yet want to adopt another child so as to give a loving home to homeless
children. Thus adoption is an institution beneficial for a childless couple to have a
child and homeless child to have a home.

Adoption involves three parties – persons taking the child in adoption, persons giving
the child in adoption and the child being adopted. In this process the legal status of
women as a taker and as a giver requires special mention.

In India there is no uniform law on adoption. Hindu Adoptions and Maintenance Act,
1956 is a religious specific law governing Hindus. Muslim personal law and Christian
personal law do not recognize adoption and if a Muslim or a Christian informally
 adopts a child, he is free to treat him as his own child and give the child his property
by way of gift and will but neither the Muslim law of inheritance nor Indian
Succession Act governing Christians treats him as a heir entitled to succession.
Section 41 of the Juvenile Justice (Care and Protection) Act 2000, as amended in
2006 provides for adoption as one of the techniques of rehabilitation of children by all
Indians and it is a secular law.

2. Women’s right to take or give a child in adoption under Hindu Law

The institution of adoption under Hindu law has passed through many changes by
way of codification and judicial decisions. Hence for the purpose of our present
study, it can be studied under two heads, namely, position under classical Hindu Law
otherwise known as Shastric Hindu Law and position under codified Hindu Law, also
known as modern Hindu Law.

2.1. Position under Classical Hindu Law

Classical Hindu law attached great importance to a son and viewed begetting a male child
by every Hindu as indispensable to discharge the debt owed to his Pitrus (the deceased
ancestors) by offering pindas to them and to perpetuate his line of descent. Putra, the son,
is considered to be a means of attaining salvation and is believed to save the Pitrus from
going to Put, the hell. So a Hindu, who does not have a son, can adopt a son and get
spiritual benefit not only for himself but also for his deceased ancestors, thereby bringing
prosperity to the entire family. Thus classical Hindu Law viewed adoption as purely a
religious act in which only a male Hindu had an important role to play. The role of the
woman was of less significance, except by participating in the ceremony of adoption as a
Dharma patni. In case, a male Hindu died without a son, the classical Hindu law, which
is manifested through different schools of thinking having their own sets of rules
regarding a widow’s power to adopt, permitted his widow to adopt a son ‘for’ and ‘on
behalf of’ her predeceased husband and the adoption was related back to the date of the
death of her husband, meaning thereby that her husband died as a Hindu having a son.
The said adoption was exclusively for the deceased husband and not for the widow. Any
other woman, married or not married, could not adopt because there was no similar
religious duty. In case of adoption of a son by a married man during his life time, the
patriarchy law did not require the consent of the wife for the adoption as mandatory.
Similarly, for giving the child in adoption, the father alone could give the child and the
mother’s consent was immaterial, except her role as a participator in the ceremony of
adoption. Only in case of death of the father, the widowed mother could give their child
in adoption. To discharge the spiritual duties and to inherit the properties, only a male
child could be given and taken in adoption and not a female child unless there was a
custom permitting adoption of a female child. This male centric adoption relegated the
woman and a girl child to a secondary position - that is to say - a woman could neither
give nor take a child in adoption and a girl child also could never be given or taken in
adoption.

2.2 . Position under Hindu Adoptions and Maintenance Act, 1956

The Hindu Adoptions and Maintenance Act, 1956, shortly called as HAMA, has brought
in substantial changes and removed bias against women in many ways. The Personal
Laws (Amendment) Act, 2010 has further amended the law of adoption so as to confer
equal status for woman in case of adoption. They can be discussed under the following
headings.

2.2.1. Legal status of Hindu woman in taking a child in adoption:

Under HAMA 1956, any Hindu male who is of sound mind and is not a minor can adopt
a child. If he is married and the marriage is subsisting, he cannot adopt except with the
consent of his wife. Absence of her consent renders the adoption void. However her
consent can be dispensed with if she (i) has ceased to be a Hindu; or (ii) has renounced
the world; or (iii) has been declared to be of unsound mind by a competent court.

Similarly any female Hindu who is of sound mind and is not a minor can also adopt a
child. It permits an unmarried woman, a divorcee and a widow to adopt. If she is married
and the marriage is subsisting, she cannot adopt except when her husband (i) has ceased
to be a Hindu; or (ii) has renounced the world; or (iii) has been declared to be of unsound
mind by a competent court.

Here it is to be noted that under HAMA 1956, in the absence of the above three
disqualifications of the husband, a married woman was legally incapable of adopting a
child by herself even with the consent of her husband, which a male Hindu is capable of
doing. So she could be only a consenter to the adoption made by her husband and she
could not initiate adoption on her own. This gender bias was reiterated by the Supreme
Court in a landmark judgment, Malti Roy Chowdary v. Sudhindranath Majumdar (AIR
2007 Cal 4) wherein the child was taken in adoption by a married woman in the presence
of her husband, who did not raise any objection. When the validity of the adoption was
challenged, the court held that according to law, the wife has no capacity to adopt when
the husband is alive even if he consents to it. A similar stand was taken by the apex court
in Brajendra Singh v. State of MP (AIR 2008 SC 1058) in which case a physically
crippled woman practically having no legs was given in marriage to a person as a social
necessity and since her marriage she was living with her parents like a divorced woman
having no contacts with her husband. In her later years she adopted a boy to take care of
her. The adoption was challenged as invalid due to the fact that she being a married
woman could not adopt without the consent of her husband. The apex court, highlighting
the contextual difference between a divorced woman and one who is leading a life like a
divorced woman, held that as both cannot be equated and as the present adoption does not
come under any of the exception as mentioned above, declared the adoption an invalid
one.

This gender discrimination has been removed by way of bringing as amendment in the
HAMA, 1956 through the Personal Laws (Amendment) Act, 2010. Now the present
position is that as in the case of married man, a married woman can also adopt with the
consent of her husband and his consent can be dispensed with under the three legal
incapacities mentioned earlier. To that extent gender parity is sought to be achieved in
Hindu law of adoption. This provision enables especially a childless woman, who is
under judicial separation or living separately, to adopt provided her husband gives his
consent to adopt, which was otherwise not permissible under old provisions of HAMA,
1956.

The legal status of widow to adopt requires special mention in two aspects. Firstly, her
position under classical Hindu law has been improved under HAMA, 1956 by which she
can adopt not only for her deceased husband but also for herself exclusively. But
secondly, on the question - in case where a male Hindu leaves behind him his own widow
and a widowed daughter-in-law, whether both the widows can adopt? Or whether a
widowed mother-in-law cannot adopt a child in the presence of a widowed daughter-in-
law? – codified Hindu law is silent.

Under Classical Hindu law ‘the interposition of a grandson or the son’s widow,
competent to continue the line by adoption, brings the mother’s power of adoption to an
end and this right could never be revived’ was a rule and it came to be known as
‘Bhoobun Moyee rule’ as laid down by the Privy Council in Bhoobun Moyee v. Ram
Kishore (1866). Under the HAMA, 1956, there is no mention about this rule. The
Bombay High Court in Mudaliar Vaijoba v. Vasant (AIR 1974 Bom 111) held that
widowed mother-in-law’s power would revive when the widowed daughter-in-law
remarries. But the Supreme Court in Ningappa v. Shivappa [(2005) 12 SCC 492]
reiterated this rule and held that widow’s power to adopt once extinguished cannot revive
even if the childless widowed daughter-in-law subsequently remarries or dies. This ruling
is viewed by many Hindu jurists as against the religious tenet of adoption because it
deprived the capacity of the widowed mother-in-law to continue the line of her husband,
when the opportunity was lost through widowed daughter-in-law’s remarriage. It is also
viewed as illogical because the widow’s power to adopt, which was eclipsed during the
possibility of continuance of the line by her widowed daughter-in-law should be restored
back to her once the possibility becomes an impossibility. Nevertheless, under codified
Adoption law a widow is capable of adopting a child to herself and not necessarily to her
deceased husband. It is her independent personal right. Hence the classical rule should be
assessed in the light of the codified law. The amendment of 2010 also does not try to
remove this anomaly and make the law clear. This is a grey area still existing in the law
of adoption.

2.2.2. Legal status of Hindu woman in giving a child in adoption:

Under HAMA 1956, a father could give the child in adoption only with the consent of the
mother, if she is alive, and the absence of mother’s consent renders the adoption void.
However her consent can be dispensed with if she (i) has ceased to be a Hindu; or (ii) has
renounced the world; or (iii) has been declared to be of unsound mind by a competent
court.
Mother could give the child for adoption only if the father is not alive or has ceased to be
a Hindu or has renounced the world or has been declared to be of unsound mind by a
competent court. Here also it is to be noted that mother was legally incapable of giving
her child for adoption by herself even with the consent of her husband, which a male
Hindu was capable of doing. This was a bias existing under HAMA, 1956.
Under the amendment Act, 2010 the mother’s position has been changed. Now the father
or the mother, if alive, shall have equal right to give a child in adoption. But such right
shall not be exercised by either of them without the consent of the other unless one of
them has ceased to be a Hindu or has renounced the world or has been declared to be of
unsound mind by a competent court. Thus equal status is accorded to both the parents in
matters of giving the child in adoption.
An unwed mother can give her illegitimate child for adoption without anybody’s consent.
An adoptive mother cannot give the adopted child for adoption to someone else.
Similarly a step mother cannot give her step child for adoption. Mother, for the purpose
of adoption, means natural mother only.
2.2.3. Legal status of girl child to be given and taken in adoption

Analytically speaking, HAMA, 1956 has revolutionized the concept of adoption in the
sense it has done away with the major bar existing under classical Hindu law that only a
boy child but not a girl child could be adopted. This bar was founded on the notion that
only a son could offer pinda to the ancestor and could continue the family line of the
Hindu and a girl child was unqualified to confer spiritual benefit upon the souls of the
deceased ancestors. Adoption of a daughter was permissible only in a very few
communities. Now the Act has conferred legal status on a girl child by providing that
adoption can be of a son as well as of a daughter and the only bar for adopting a daughter
is that the adoptive parents should not have a Hindu daughter or a son’s daughter living at
the time of adoption.

2.2.4. Maternal and paternal affiliation in adoption:

Where the adoption is made by a male Hindu with the consent of his wife, the wife
becomes the adoptive mother of the child. If the adoption is made by a bachelor or a
childless divorcee or a widower who subsequently marries, his wife is deemed to be the
step mother of the child. Similarly, a spinster or a childless divorcee adopts a child and
subsequently marries, her husband is deemed to be the step father of the child and the
child in these cases does not have an adoptive father. The reason is that the adoption is
made by a single parent.
The adoption of a child by a widow again raises an important legal issue – whether her
deceased husband would be the adoptive father of the child? In other words, whether a
child adopted by a widow is related to her deceased husband? The classical Hindu law
evolved the paternal affiliation to the adopted child. But there is no express provision in
HAMA, 1956 either confirming or abrogating the old rule. The High courts have given
conflicting decisions. One view was that in the absence of express provision, the pre-Act
law on the subject would govern the situation and the deceased husband of the widow
would be deemed to be the adoptive father of the child and the child would continue the
line of descent in the adoptive family. The second view was that he could not be deemed
to be the adoptive father of the child because there is no express provision in the Act to
that effect. Moreover by giving a widow a right to adopt exclusively for herself and
making the adopted son not to divest the interest already vested in other person in the
adoptive family, the doctrine of relation back has been abrogated under the Act. The
matter was set at rest by the Supreme Court of India, in a few landmark cases. In Sawan
Ram v. Kalawanti (AIR 1967 SC 1761) the court held that in the absence of an express
provision in the Act, the old law is deemed to continue. Section 5(1) of the Act, worded
as ‘adoption by or to a Hindu’, makes it clear that adoption by a widow would not only
be to herself but also to her deceased husband and hence the adopted child is to be treated
as the child of the deceased husband also. In Sitabai v. Ramachandra [(1969) 2 SCC 544]
also the Supreme court held that according to Section 12, new ties are created to the
child, from the date of adoption, in the adoptive family and when the widow belonged to
the family of her deceased husband, the child must also belong to the same family. A
widow, on the death of her husband, does not lose the membership in his family. She
retains his surname and continues to be a widow of the deceased Hindu. Hence in the
present case, the relationship with the deceased husband was established through
adoption and it did not mean that adoption was related back to the death of the husband, a
concept which was abrogated by the Act.
Here it is to be noted that adoption by a widow is different from adoption by a divorced
wife because divorce ends the marital relationship with the husband and so all her ties
with the husband’s family. A son adopted by a divorcee does not enter into the family of
her former husband or in case of her remarriage subsequent to adoption to that of her later
husband.

2.2.5. Other conditions for a valid adoption:

HAMA stipulates certain other conditions for a valid adoption, equally applicable for a
female as well as a male Hindu.

(i) If the adoption is of a son, the adoptive mother should not have a Hindu son or
son’s son or son’s son’s son (either by legitimate blood relationship or by
adoption) living at the time of adoption.
(ii) If the adoption is of a daughter, the adoptive mother should not have a Hindu
daughter or son’s daughter (either by legitimate blood relationship or by adoption)
living at the time of adoption.
(iii) In case of adoption of a male child, the adoptive mother should be 21 years older
than the child. This is not required in case of adoption of a girl child by adoptive
mother. (This rule applies mutatis mutandis for adoption of a girl child by a male
Hindu)
(iv) The child to be adopted shall be a Hindu child.
(v) The child should be unmarried and below 15 years of age, unless custom permits
otherwise.
(vi) The same child cannot be adopted simultaneously by two females.
(vii) The child to be adopted must actually be given and taken in adoption with an
intention to give and take.
(viii) There is no necessity of performing datta homam to give validity to adoption,
which was necessary among regenerate castes under classical Hindu Law.

2.2.6. Registration of adoption:

The Act does not prescribe that the fact of adoption should be in writing and to be
registered. It merely provides that if there is a registered document recording the adoption
made and signed by both the giver and the taker, the court shall presume that the adoption
has been made in compliance with the provisions of this Act, unless disproved. Thus a
registered document is a good piece of evidence of adoption duly made, but the
presumption is rebuttable by the person challenging the adoption. Non registration would
not render the adoption invalid.

2.2.7. Assessment of the Act from a woman’s perspective:

The Hindu Adoptions and Maintenance Act, 1956 and the amendment Act 2010 have
improved the status of women in taking and giving a child in adoption and have
rationalized the scheme of adoption in many ways. A married woman can give and take a
child in adoption, however subject to certain conditions, and she no longer needs to be a
mere participator in the event and her consent is mandatory for a valid adoption by her
husband and she can also initiate adoption like her husband. A spinster or a divorcee or a
widow, irrespective of her marital status, can also adopt a child for herself. A girl child
 can also be adopted. But the only point for concern is that in the presence of boy or a girl,
the adopter cannot adopt another male child or a female child.

3. Status of woman to adopt in other personal laws:

Neither Islam nor Christianity nor the Parsi religion legally recognizes adoption and
there is no specific law to that effect. Their law of inheritance and succession does not
acknowledge the adopted child as a heir to the propositus and hence even in case of
informal adoption, backed by custom, the child will not get inheritance rights and it’s
interest can be protected only by way of bequeathing the adopter’s property through will
or gift by the adopter himself or herself. There is no special legal status of women to be
mentioned.
In Philips Alfred Malvin v. VJ Gonsalves (AIR 1999 Ker 187) the validity of adoption of
a child by a Christian couple came up before the Kerala High Court and the court held
that the right of a couple to adopt a son is a constitutional right guaranteed under Art. 21
and simply because there is no separate statute providing for adoption, it cannot be said
that the adoption made by the couple is invalid. This judgment underscores the need for a
law of adoption for all Indians, male and female, who are otherwise deprived of their
valuable right of parenthood under their personal laws.

4. Status of woman to adopt under Juvenile Justice (Protection and care) Act, 2000 as
amended in 2006:
Juvenile Justice (Protection and care)(Amendment) Act, 2006 is a child centric secular
law and Ss. 40 and 41 of the Act provide for adoption of a child through court of law, as a
measure of providing rehabilitation and social integration to the child who is orphaned,
abandoned and surrendered and who is in need of care and protection. Under the Act, any
person, irrespective of his or her religion or marital status or any childless couple or any
couple who is already having biological children, can adopt any number of children,
subject to the satisfaction of the Court. This Act ensures a uniform law of adoption for all
Indians who are otherwise prohibited under their respective personal laws. The adopted
child will be treated equivalent to a biological child for the purpose of inheritance to
adoptive parent/s. The Central Adoptions Resource Agency (CARA) is the central nodal
agency monitoring the implementation of the Act.
In a move to consolidate and amend the existing law, very recently a proposal has been
made to bring in Juvenile Justice (Protection and care) (Amendment) Bill, 2015 which
was passed in the Lok Sabha in May 2015 and is waiting for consideration in Rajya
Sabha. Among other things, the Bill contains a separate chapter on adoption prescribing
conditions and procedure for in-country and inter-country adoptions. The Bill specifically
stipulates that the prospective adoptive parents shall be physically fit, financially sound,
mentally alert and highly motivated to adopt a child for providing a good upbringing to
him. In case of a couple, the consent of both the spouses for the adoption shall be
 required. A single or divorced person can also adopt but a single male is not eligible to
adopt a girl child.

5. Conclusion:
Personal law is an area, wherein gender discrimination is allowed to exist on the pretext
of religious practice. It is reinforced by the patriarchic structure of family and society.
Law, at times connives with it, and if there is heavy pressure from the pressure groups
working to make the laws either gender-neutral or egalitarian, amendments are brought
in. The role of judiciary in highlighting the lacuna existing in all personal laws and
stressing the need for a uniform law of adoption to all Indians is commendable. The
Juvenile Justice (Protection and care) Act, 2000, as amended in 2006, to some extent, is a
step towards that direction and removes the barriers existing for Hindus under HAMA
and makes adoption by a Hindu under the secular law more liberal. It also enables other
religious people to adopt legally on par with Hindus. It is a legislation focused to give a
safe and caring home for thousands of homeless children and is more child-centric.
However nothing in this secular law shall apply to the adoption of children made under
the provisions of the HAMA 1956.