Adoption

Hindu Adoption and Maintenance

Act 1956
Yajnavalkya: “ Continuity of the family in this world
and the attainment of the heaven in the next are
through sons, son's son, and son’s grandson,
therefore women should be protected.

Son has been assigned a very important position

in Hindu Dharmshastras, male issue was treated
as necessary for protecting the deceased parents
from the sufferings of the hell and to perform
their funeral obligations.
•It is the foremost duty of the man ,who is son-less,
to have a son by any means… Manu

The privy council observed that adoption among the

Hindus is necessary not only for the continuation of
the childless father’s name but also as a religious
means …. ( Bal Gangadhar Tilak V Srinivas Pandit)

•Adoption comes from the heart but the adoption

process comes from the law. You should follow your
heart but be sure you also follow the law.
- Irina O’ Rear
•Kinds of Son
•Aurasa : Son begotten by man himself upon lawfully
wedded wife
•Dattaka Son: boy given voluntarily by parents to sonless
man of same caste
•Kritrima Son : Boy accepted as own son for the sake of his
own qualities from same caste
•Khetraja : Son begotten by own wife with another man by
consent of husband
•Gudhara: Son secretly brought forth by wife and wife is
unknown
•Kanina : Son born to unmarried daughter in fathers home
•Putrika Putra : Son of his daughter taken in adoption
•Sahodhaja : Son born of a wife if she was pregnant
during marriage
•Krita : Son purchased for price from same caste
•Svayamadatta : Abandoned son himself offer
•Paunarbhava : Son of remarried woman
•Apviddha: Adondon son accepted by person on his
own
 Adoption under Hindu law
Adoption has been recognized for centuries, but
being a part of personal laws, there is no
uniformity among the different communities.

Hindu law is only law which recognizes the

adoption in true sense of taking of a son as a
substitute for a natural born one.
Under HAMA 1956 the daughter could also be
adopted even when she is incompetent to offer
funeral oblations and perform last rites of
deceased, although she can only continue the
family line of adopted family.
 Application of Act (Sec 2)

All Hindus
all its forms + developments

Over riding effect of Act Sec 4

Adoption if not in accordance with this act : Void

Adoption (Sec -5)
 Essentials of valid adoption Sec 6
•The person adoption : Capacity & Right
•The person giving in adoption : Capacity
•Being capable of taken in adoption
•Adoption in compliance of Act

Kumar sursen v State of Bihar AIR 2008 Pat 24

( Validity of adoption by a Hindu of any other
person other than Hindu)
Capacity to take in adoption Sec 7 & Sec 8
Capacity of Male
•Hindu
•Major
•Sound Mind
•Consent of wife
*(When consent not required ?)
 Capacity of female
•Sound mind
•Major
•Unmarried
•If married (In original Act)
➢ Her marriage dissolved
➢ Husband if dead
➢ Husband Renounced world
➢ Cease to be Hindu
➢ Unsound
Effect of amendment act of 2010
 Who can give in adoption (Section 9)
• Father
• Mother
•Guardian
•Equal rights of mother and father to give in adoption
and effect of 2010 amendment

Who may be adopted (Sec 10)

•Hindu
•If already adopted =Disqualified
•Unmarried
• Before 15 Years (Provided custom permits)
Section-11 of HAMA (Other Conditions)

In every adoption, the following conditions must be

complied with:
(i) if the adoption is of a son (There should not be any
son/grand son/great G S)
(ii) if the adoption is of a daughter (There should not be
any daughter/sons daughter)
(iii) if the adoption is by a male and the person to
be adopted is a female (21 years gap)
(iv) if the adoption is by a female and the person to
be adopted is a male,
• (v) the same child may not be adopted
simultaneously by two or more person;
• (vi) the child to be adopted must be actually
given and taken in adoption by the parents or
guardian concerned or under their authority
with intent to transfer the child from the
family of its birth to the family of its adoption:
PROVIDED that the performance of datta
homan shall not be essential to the validity of
adoption.
 Sec-12 :Effects of adoption
• An adopted child shall be deemed to be the
child of his or her adoptive father or mother
for all purposes with effect from the date of
the adoption and from such date all the ties of
the child in the family of his or her birth shall
be deemed to be severed and replaced by
those created by the adoption in the adoptive
family :
• There are three exceptions to the above rule.
(a) The child cannot marry any person whom he or
she could not have married if he or she has
continued in the family of his or her birth.
(b) Any property which vested in the adopted child
before the adoption shall continue to vest in
such person subject to such obligations, if any
attaching to the ownership of such property
including the obligation to maintain relatives in
the family of his or her birth.
• (c) Abolition of doctrine of relation back
The adopted child shall not divest any person of
any estate which vested in him or her before the
adoption.
Sec 12 adoption takes effect from the date of
adoption and not prior to adoption.
Doctrine of relation back:
Sec 12 of HAMA r/w Sec 14 of HSA
Under old law before act of 1956, only males could
make adoption but there was one exceptional
situation where even female could take a child i.e.
son in adoption and that exception is where
husband has died without any issue then his widow
could adopt a son but that adoption is not by her
rather it was an adoption to her deceased husband
• So that his sole could rest in peace. Thus by
the doctrine of relation back a legal fiction is
created i.e. the adoption has taken place
immediately before the death of the father
though in reality it is not so. In 1956 two acts
came into force i.e. Hindu Succession Act,
1956 & Hindu Adoption and Maintenance Act,
1956.
• By virtue of Proviso (c) to Sec 12 their arose a
legal hurdle in application of this doctrine as
proviso provided that adopted child could not
divest any person of any property that has
already vested in him or her before adoption.
• Therefore by virtue of sec 14(1) hindu female
has become full owner of limited estate and
adopted child could not divest her of this
property.
• Sawan Ram v. Kalawati AIR 1967 SC The
adoption of the doctrine of relation back does
not imply that a son adopted by a widow is
not related to her deceased husband. A child
adopted by a widow will be deemed to be the
adopted son of her deceased husband. This is
a matter purely of personal relationship. It can
be separated from the effect of adoption in
inheritance.
 Sec 13. Right of adoptive parents to dispose of their
properties

Adoption does not deprive the adoptive father or

mother of the power to dispose of his or her
property by transfer inter vivos or by will.
Sec 14: Determination of adoptive mother in
certain cases.
Sec 15 : Valid adoption can not be cancelled ( By
adoptive parents & adopted child)
Q Mohan and Anita was a childless couple. In
1990 Mohan took in adoption his brother’s son
Deepak. In 1994, a son was born to the couple.
Mohan wants to give Deepak back to his
brother. Can he do so? Will it make any
difference to your answer if Deepak himself
wants to return to his family of birth?
Sec 16 Presumption as to registered documents
relating to adoption.
Sec 17 Prohibition of certain payments
 Case Readings
• Brajendra v. State of M.P. AIR 2008 SC
• Ghisalal v. Dhapubai (Dead) by L.Rs & Ors. AIR
2011 SC 644
• Shabnum Hashmi v. Union of India and ors.
AIR 2014 SC 1281
• Rahasa Pandiani (dead) by L.Rs and ors v.
Gokulananda Panda and ors. AIR 1987 SC 962
 Problem Solving Exercise
Q1 S aged 12 years was the only son of his hindu
parents, both of whom died in a road accident. S
was brought up by a Christian Missionary. A
hindu couple wants to adopt S from the
Missionary. Can they adopt S?
Q2. Albert a citizen of U.S.A, wants to adopt an
abandoned child who is being brought up in an
orphanage. Examine whether he can adopt the
child under HAMA?
Q3. Shankar a bachelor adopted a girl child
called Guddu. Subsequently he married Seema.
Point out the relationship of Guddu and Seema
according to HAMA?
• Brajendra Singh v. State of M.P. (AIR 2008 SC 1058)
Issue: Whether a married woman (who never lived with
her husband due to his desertion) to adopt a child.
There is a conceptual and contextual difference between
a divorced woman and one who is leading life like a
divorced woman. Both cannot be equated. The appellant
wife lived separately from her husband right from the
date of marriage. But in the eye of law they continued to
be husband and wife, because there was no dissolution of
marriage or divorce. Thus adoption by the appellant was
invalid.
In this case, disabled lady was married with the
village custom, a virgin girl must get married,
her husband left her and after that, she adopted
a son after 22 years of her marriage. In the other
case, disputes are under the agriculture land
ceiling law. She sought a declaration that the
appellant was her adopted son. The suit was
decreed by the trial court and affirmed by the
first appellate court.
On second appeal to the Madhya Pradesh High
Court it was held that, given the provisions
of sec 8 the adoption was not valid. The
argument she said that she is leading a life like a
divorced woman was not accepted because this
was a great deal of difference between a female
Hindu who is divorced and one who is leading a
life like a divorced woman, the court observed.
Problem Solving Exercise:
Q1. Prakash obtained a decree of divorce against
his wife Sandhya. Is he entitled to take a son in
adoption without Sandhya’s consent? Will it
make any difference to your answer if Prakash
wants to give his only son Sonu in adoption
without Sandhya’s consent?
Ghisalal v. Dhapubai (Dead) by L.Rs & Ors. AIR
2011 SC 644
Issue:
Whether mere presence of Dhapubai in the
ceremonies performed by her husband Gopalji for
adoption of Ghisalal amounted to her consent as
contemplated by the proviso to Section 7 of the
Hindu Adoptions and Maintenance Act, 1956 (for
short, `the 1956 Act’) is the main question which
arises for consideration?
The trial court, the lower appellate court and the
Madhya Pradesh High Court were all of the opinion
that the adoption was valid and the consent of the
wife of the adopted male can be inferred from the
circumstances of the case, that she was present in
the ceremonies of adoption and did not question
the adoption till the stage of filing the written
statement in the suit filed by the petitioner. On
appeal, however, the Supreme Court analyzed the
facts and circumstances of the case in detail and set
aside the judgment of the courts below, adoption
was held to be invalid.
M. Vanaja vs. M. Sarla Devi. 2020 SC
A plain reading of the above provisions would
make it clear that compliance of the conditions in
Chapter I of the Act of 1956 is mandatory for an
adoption to be treated as valid. The two
important conditions as mentioned in Sections 7
and 11 of the Act of 1956 are the consent of the
wife before a male Hindu adopts a child and proof
of the ceremony of actual giving and taking in
adoption.
• Appellant had filed a civil suit for declaration
stating that she is the adopted daughter of Lt. Sarla
Devi and Lt. Narasimhulu Naidu. She sought for
partition of the suit schedule property.
• The suit for partition was dismissed by the trial Court
on the ground that the plaintiff could not prove the
ceremony of adoption and the judgment was upheld
by the High Court of Andhra Pradesh at Hyderabad, ie.
The High Court dismissed the appeal too.
• Aggrieved by the judgement, M. Vanaja filed the above
appeal in Supreme Court.
Narasimhulu Naidu worked as a Lift Operator in the
Andhra Pradesh State Electricity Board (APSEB). In his
service record, the Appellant is referred to as his
daughter and she has been nominated in the
application for pension of Narasimhulu Naidu.
On the other hand, the Respondent had stated that the
Appellant is the daughter of her younger sister
Manjula. As the Appellant’s biological parents died
when she was very young, the Respondent and her
husband Narasimhulu Naidu brought her up but the
Appellant was never adopted by them .
• The two important conditions as mentioned in Sections 7 and 11 of
the said Act, 1956 are the consent of the wife before a male Hindu
adopts a child and proof of the ceremony of actual giving and taking
in adoption. The Appellant admitted in her evidence that she does
not have the proof of the ceremony of giving and taking of her in
adoption. Also the Respondent who is the adoptive mother has
categorically stated in her evidence that the Appellant was never
adopted though she was merely brought up by her and her
husband.
• In view of the aforementioned facts and circumstances, the Hon'ble
Supreme Court bench of Justice L. Nageswara Rao and Deepak
Gupta found no error in the judgment of the High Court. Therefore,
the Appeal was rejected.
The mandate of the Act of 1956 is that no
adoption shall be valid unless it has been made
in compliance with the conditions mentioned in
Chapter I of the Act of 1956. The two essential
conditions i.e. the consent of the wife and the
actual ceremony of adoption have not been
established. This Court by its judgment in
Ghisalal v. Dhapubai (Dead) by Lrs. & Ors. held
that the consent of the wife is mandatory for
proving adoption.
 Religion no Bar for Adoption
• Shabnam Hashmi v. Union of India & Ors AIR
2014 SC 1281
Muslims, Christians and Parsis have no adoption
laws in their personal laws, thus they have to
approach the court under the Guardians and
Wards Act, 1890. Muslims, Christians and Parsis
can take a child under the said act only under
foster care. But the position has changed after
the Supreme court decision in the case of
Shabnam’s case where the Hon’ble Supreme Court
has held that non-hindus can also adopt the
children under the Juvenile Justice Act, 2015.
In this case the petitioner was a Muslim who had
adopted a young girl when she was small. She filed
the petition for recognition of the right that a
person belonging to any religion could adopt a child
since the Muslim Law did not allow for adoption.
Issue:
1. Whether adoption of a child is a fundamental
right?
2. In case of contradiction between personal law
and secular law, what is going to be prevailed?
3. Whether caste, creed and religions affects the
adoption procedure?
The judgment of the case, the Supreme Court of
India declared that the right to adopt the child
by a person as per the provisions of Juvenile
Justice Act would prevail over all personal laws
and religious codes in the country. The three
judges bench consisting of Chief Justice P.
Sathasivam and Justice Ranjan Gogoi and Shiv
Kirti Singh, decided this case.
It was argued by the All India Muslim Personal
Law Board that adoption was only one of the
contemplated methods under the JJ Act, 2000
and Islamic Law did not recognize the concept of
adoption. They objected that Islam did not
recognize adoption.
 Muslim Law on Adoption
• Adoption is the transfer of a child to the parents.
Under Muslim law Islam does not recognize the
adoption, it is very different from Hindu law. In
Muslim law, adoption is recognized as
“Acknowledgment of paternity”.
• Acknowledgment of Paternity is the principle that
establishes the legitimacy of the child. In this
principle child gets acknowledges to become a
legitimate child means paternity of the child is
established upon him.
The SC held that the JJ Act was an enabling
legislation and it aims at achieving the purpose
of a UCC. Thus it was held that any person
belong to any religion could adopt a child
subject to the rules framed.
Held- The court is of the view that the present is
not appropriate time and stage where the right
to adopt and the right to be encompassed by
Article 21 of the Constitution. We hardly need to
reiterate the well settled principles of Judicial
Restraint, which requires the Court not to deal
with issues of Constitutional interpretation
unless such an exercise is but unavoidable.
Rahasa Pandiani (dead) by L.Rs and ors v.
Gokulananda Panda and ors. AIR 1987 SC 962
In this case child was adopted by woman and
the child belonged to the sister of her brother.
The child passed away after some time, and the
woman bequeathed her property to some
relatives. A suit was filed by another person
after several years praying for a declaration that
He was the adopted child of the woman.
It was held that when there is a claim for
adoption then the same has to be proved by
way of clinching evidence. An oral adoption
must be presented with some documentary
evidence which could dispel the clouds of
uncertainty.
It was further held that the process of adoption
makes a huge change in the course of
succession. It result in depriving the rights of a
wife or a daughter from transferring property to
a complete stranger, thus the claim of adoption
would have to be scrutinized on the basis of
evidence adduced to clear the court of all
doubts.
In the absence of any evidence which would
show that there was an adoption, it would be
wrong and unreasonable to give a declaration
for adoption, especially in cases where the claim
is being made on the ground of an oral
adoption.
 Inter Country Adoption
In Laxmikant Pandey v. Union of India (1984) 2
SCC 244
In this case a letter by an advocate was treated
as a Public Interest wherein it was stated that
voluntary and social organizations and agencies
were indulging in malpractices by offering
services of inter-country adoption. The children
were ending up in poor condition, being forced
into beggary and other horrendous things.
This case pertained to Adoption of children who
were abandoned, destitute and living in the
child or social welfare homes. The SC took
judicial notice and directions were issued.
The SC laid down rules in relation to ICA the
principles and norms that adoption agencies
had to observe while giving a child in adoption
to foreign parents.
It was directed that every application for
adoption by a foreigner must be sponsored by a
child/social welfare agency of the foreigner’s
country. The Biological parent must never get to
know who is adopting the child. All the details of
the family, assets, liabilities, recent photographs,
tax details, medical history etc. must be
submitted along with the application.
It was further directed that the Government
would intimate the embassy in that country to
keep a watch on the welfare of the child and
safeguard against any ill-treatment.
CARA issued certain guidelines based chiefly on
1984 SC judgment in 1995:
1. The Indian adoption agency is to refer the child
to the enlisted foreign adoption agency for a
suitable family. Child study and medical history
reports are to be sent.
2. When the family accepts the child, the adoption
dossier and acceptance papers are to be sent to
the Indian agency for processing.
3. The Indian agency is to send one set of papers to
CARA for a NOC.
4. The documents needed for NOC are undertakings
from the foreign adoption agency that the child
would be legally adopted by the foreign parents
according to the local laws within two years of the
child reaching the country, that a report on the
progress of the child would be sent regularly for five
years and that in case of disruption of the adoptive
Parents ‘s family the foreign agency would take care
of the child until it finds another suitable family.
5. When NOC is received the case is filed in the
court for legal guardianship.
6. The case is scrutinized by a scrutiny agency on
behalf of the court to ensure that the child is legally
free for adoption, the parents documents are in
order and the placement is in the best interest of
the child.
7. The guardianship order is granted by the
competent court.
8. All documents are authenticated and sent to
foreign agency/adoptive parents.
9. The child is ready for travel with the adoptive
parents.
Following this judgment, the Indian courts gradually broadened the
scope of adopting child to other countries. In the later judgments, the
courts have also interpreted the word ' custody' to make adoption
easier.
The Bombay High Court in Re Jay Kevin Salerno [AIR1988 BOM139]
reiterated that " where the custody of a child is with an institution, the
child is kept in a private nursing home or with a private party for better
individual care of the child, it does not mean that the institution
ceases to have the custody of the child." Therefore it may be
submitted that in the absence of any explicit legislation on the subject,
the Supreme Court has played a pivotal role in regulating the adoption
of tendered aged children to foreign parents. It has taken the help of
various international guidelines and subject to Indian culture framed
the rules thereof
Chapter VIII: Adoption (Sec 56-73)
Juvenile Justice (Care and Protection of
Children) Act, 2015
Sec 56: Adoption
Sec 57: Eligibility of Prospective adoptive
parents
Sec 59: Procedure for inter-country adoption of
an orphan or abandoned or surrendered child
Sec 61: Court procedure and penalty against
payment in consideration of adoption.
Sec 63: Effect of adoption
Sec 65: Specialized Adoption Agencies
Sec 68: Central Adoption Resource Authority