ADOPTION UNDER HINDU ADOPTION AND MAINTENANCE ACT

ADOPTION UNDER HINDU ADOPTION AND MAINTENANCE ACT


Introduction

In ancient times, adoption was the taking of someone else’s son and raising him as one’s ownin the modern-day adoption and maintenance of children by Hindus is governed by The Hindu Adoption & Maintenance Act, 1956 (“HAMA”) and both girls and boys may be adopted. A Hindu includes Buddhists, Jains, Sikhs, Virashaivas, Lingayats, and members of the Arya Samaj. Any adoption has to follow the procedure established by HAMA in order to be valid. 

Essentials of valid adoption         

Section 6 of HAMA lays down four important requisites for a valid adoption:

(a) The adopter possesses the capacity and the right to adopt.

(b) The person giving the child in adoption can do so.

(c) The child who is adopted should be capable of being taken in adoption.

(d) The adoption should be abided by the HAMA procedure.

Who can be an adopter?

Every person, before adopting a child, has to fulfill the following conditions:

  • The adopter must be a Hindu
  • The adopter has not been married unless permitted by the law or tradition.
  • The child has not already been adopted by another
  • The child must be less than fifteen years of age, unless otherwise specifically permitted 

Adoptions by a Hindu male   

Section 7 prescribes that a Hindu male, in order to adopt a child, needs to fulfill the following conditions:

  • He is a major
  • He is of sound mind
  • He is married and his wife is alive
  • He has the consent of his wife. This condition can be avoided if the wife is incapable of giving consent due to insanity or any other reason. In case the man has multiple wives, the consent of all of them is necessary before taking a child on adoption. 

In Bhola & Ors v Ramlal & Ors (AIR 1989 MP 198), the validity of an adoption was in question. The plaintiff had two wives, and before adoption he had not taken the consent of one of them. He contended that his wife had absconded and could be considered as dead. However, an absconding wife could not be considered as dead unless seven years had elapsed and her family and friends had not heard from her in those seven years; if both the wives are alive, the consent of each wife is necessary for a valid adoption by a Hindu male. If the wife has converted or has become a sanyasin, her consent isn’t necessary for adoption. 

Adoption by Hindu Female   

Section 8 of HAMA prescribes that a Hindu female, in order to adopt a child, needs to fulfill the following conditions:

  • She is a major
  • She is of sound mind
  • She may be unmarried or a widow or a divorcee 

However, if she has a husband who is alive, she cannot adopt. To adopt a male child, the female adopter must be at least 20 years older than the child (Vijayalakshamma v  BT Shankar, 2011 SC 1424).

Who can give a child up for adoption?

Only the parents or the lawful guardian of the child can give it up for adoption:

  • Only the biological father of a child can give it up for adoption. The biological mother must consent to giving the child up for adoption.
  • A mother alone can give the child up for adoption if the father is either dead, of unsound mind, has renounced the world, or has converted to some other religion.

However, an adoptive father or mother cannot further give the child up for adoption.

A lawful guardian is a person who is appointed by the parents of a child or by a court of law for taking care of the child and their property. A lawful guardian can give the child up for adoption only when the biological parents of the child are either dead, have renounced the world, have gone insane or have abandoned the child. However, before giving the child for adoption the guardian must receive the permission of a court; the court, before giving such permission, must be satisfied that:

  • The adoption is necessary for the welfare of the child
  • There has been no payment made in exchange of the child.

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