HINDU ADOPTION UNDER INDIAN LAW AN ANALYSYS

 

HINDU ADOPTION UNDER INDIAN LAW AN ANALYSYS

THE REASON FOR INTRODUCTION OF HINDU ADOPTION AND MAINTENANCE ACT-1956:

The subject of adoptions was extremely complicated under ancient uncodified Hindu Law because property rights are particularly involved in matters relating to Adoption. To remove the complexity in adoption process the Indian parliament codify Hindu law and introduced the Hindu The Adoptions and Maintenance Act of 1956 which  was passed by parliament between 1955 and 1956.

The 1956 act was passed with the intention of simplifying all the principles of ancient law in a statute enacted by the parliament. Because the Act's long title clearly states that it is intended "to amend and codify the law relating to adoptions," it must be assumed that the intention is not only to codify the earlier law but also to amend so that if the 1956 Act conflicts with any of the earlier decisions or texts, the Act prevails.

The Supreme Court ruled that after the 1956 Act went into effect, there was no room for customary adoption. Surajan Singh vs. Kartar Singh, 1974 (2) SCC 559: 1975 (2) SCR 742

 

SIGNIFICANT CHANGES OCCURRED DUE TO INTRODUCTION OF HINDU ADOPTION AND MAINTENANCE  ACT IN HINDU ADOPTIONS : –

Due to  passage of the Hindu Adoptions and Maintenance Act in 1956, many radical changes in Hindu adoptions occurred. The Hindu Adoptions and Maintenance Act of 1956 resulted in the following significant changes:

·       A female child cannot be adopted under the old Hindu Law system. However, Sections 7 and 8 of the Hindu Adoptions Act allow for the adoption of a female child as well.

·       Section 8 of the Act allows a widow, divorcee, or unmarried person to adopt a female or male child. A wife can also adopt a child, subject to the conditions outlined in Section 8 of the Act.

·       The consent of the wife was not required for adoption under old Hindu law. However, consent is required under the Act of 1956 (Section 7).

·       Similarly, under the old Hindu Law system, a father could give his son up for adoption without his wife's consent. However, Section 9 of the new Act of 1956 requires that a father obtain the consent of his wife before placing his child for adoption.

·       A person can be adopted under the old Hindu Law system regardless of his age or whether the Adopted boy is married or not. However, under the new Act of 1956, an adoptee must be under the age of 15 and unmarried, unless the custom allows such adoption.

·       Adoption was not permitted under the old Hindu Law system unless a ceremony known as "Datta Homam" was performed. However, according to Section 11 of the Act of 1956, no such ceremony is required. Only the giving and taking of a child is necessary.

·       According to Section 13 of the Hindu Adoptions and Maintenance Act, 1956, an adoptive father or mother is not deprived of the right to transfer property simply because their child has been adopted. However, prior to 1956, an adoptive father was denied the right to transfer his properties under the old Hindu Law system.

·       Adoption registration is not required under the old Hindu Law system. However, the Act of 1956 requires adoption registration.

·       A legal provision in the 1956 enactment states that if a child of opposite sex is to be adopted, there must be a 21-year age difference between the Adopter and the Adoptee (Section 11). There was no such provision in ancient Hindu law.

·       According to old Hindu law, the Adopter and Adoptee must be of the same caste and Hindus. However, under the Act of 1956, it is no longer necessary for the Adopter and Adoptee to be of the same caste. It is, however, required that they be Hindus.

·       Section 12 of the Act of 1956 abandons the old fundamental theory of "relation back." Since a widow can adopt for herself under the new Act, once vested property cannot be divested.

·       Another significant change brought about by the Act of 1956 is the ability of a female to adopt a child in her individual capacity. Section 8 of the Hindu Adoption and Maintenance Act, 1956 states, among other things, that "Any female Hindu who is of sound mind, who is not a minor, who is not married and if married whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption" . Previously, a female could not adopt a child in her individual capacity under Hindu law. She could only adopt in her husband's name.

·       A boy who is deaf, dumb, or suffers from any other defect, disease, or deformity could not be adopted under the old Hindu Law system. However, under the new act, these disqualifications are not considered when adopting a boy or girl because they are not considered in the matter of succession. As a result, under the 1956 Act, a boy or girl with the aforementioned defects may be legally given and taken in adoption.

·       There was a rule in the old Hindu Law system that the boy to be adopted could not be a boy whose mother the Adoptive Father could not legally marry. The Act of 1956 makes no such restriction or limitation, and any boy or girl who meets other requirements may be adopted.

·       Adoption of a boy was required under the old Hindu Law system because the adoption of a girl was not recognized. Adoption of a son or a daughter can be validly given and taken in adoption under the Act of 1956.

·       No one who has been adopted may be deprived of any property that was rightfully theirs prior to the adoption.

MAIN OBJECT OF ADOPTION IN THE ANCIENT HINDU SOCIETY

In terms of adoption, the ancient Hindu Society took a religious approach. A son was required to perform his parents' last rites and to carry on the lineage. The secular purpose of succession to property was indeed secondary to the parents consenting to adoption, but as facts may show, it was primary to the parents consenting to adoption. Following the adoption, all litigation centered on the right to succession to property. The modern concept of adopting a child for no religious reason other than to save and raise the child was unknown to Hindu Law.

The Supreme Court determined that adoption has two primary goals:

·       to ensure the performance of last rites, and 

·  to continue the lineation. AIR 1963, SC 185 (1963) 2 SCR 440, Chandrasekhara Mudaliar vs. Kulandaivelu Mudaliar.

 

CHANGES AND EFFECT OF 1956 ACT ON HINDUS

In relation to matters covered by this Act, any context, rule, or interpretation of Hindu Law or any custom or usage prior to the commencement of the said Act will be null and void. Any prior law that is inconsistent with the provisions of the 1956 Act will not apply to Hindus.

 

ESSENTIAL CONDITIONS FOR A VALID ADOPTION UNDER HINDU ADOPTION ACT

Section 6 of the Act specifies four essential conditions for a valid adoption:

•          the person adopting has the capacity and right to adopt;
•          the person giving in adoption has the capacity to do so;
•          the person adopted is capable of being taken in adoption; and
•       the adoption is made in accordance with the Act's provisions.

CAPACITY OF MALE AND FEMALE HINDUS TO ADOPT CHILD UNDER HINDU ADOPTION ACT

A Major Hindu who is of sound mind can adopt a son or daughter (Section 7). He must be at least 21 years older than the female being adopted if he wishes to adopt a daughter. He should get his wife's permission before adopting a son or a daughter. A Female Major Hindu has the same right to adopt a son or a daughter if she is (1) of sound mind, (2) not married, or (3) if married, the marriage is dissolved or the husband is deceased. If a female Hindu wishes to adopt a son, she must be 21 years older than the boy to be adopted. [Secs. 8 and 11(iv)]

 

PERSONS CAPABLE OF GIVING IN ADOPTION

Where the father is alive, the father alone has the right to give in Adoption, but only with the mother's consent. If the mother is a widow, she may place the child for adoption. Dhanraj vs. Suraj Bai, (1975) 2 SCC 251. However, a stepmother cannot adopt her stepson. When both the father and mother are deceased, the guardian may place the child for adoption with any person, including the guardian himself, with the prior permission of the Court. (See Section 9).

 

WHERE BOTH THE FATHER AND MOTHER ARE DEAD :-

Where both the father and mother are deceased or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind, or where the parentage of the child is unknown, the guardian of the child may give the child in adoption to any person, including the guardian himself, with the prior permission of the court (this provision is inserted by Amendment Act, 45 of 1962).

CONDITIONS FOR GIVING AND TAKING ADOPTION:-

For a person to be given or taken in Adoption, the following conditions must be met: (1) he or she is a Hindu; (2) he or she has not already been adopted; (3) he or she has not been married; and (4) he or she has not reached the age of 15 years. The above conditions are found in Section 10, but there is an exception that states that if there is a custom or usage, a married person or a person over the age of 15 can also be adopted. However, the Supreme Court has ruled that unless there are exceptional circumstances, the only son should not be given or taken in adoption. Raghavamma vs. Chenchamma, AIR 1964, SC 136; 2 SCR 933 (1964).

A FEW ADDITIONAL REQUIREMENTS A LEGITIMATE ADOPTION MUST ALSO MEET THE ADDITIONAL REQUIREMENTS LISTED IN SECTION 11 OF THE ACT, WHICH ARE AS FOLLOWS:

• If a son is adopted, the Adoptive Father or Mother must not have a son, son's son, or son's son's son;
• if a daughter is adopted, the Adoptive Father or Mother must not have a daughter or a son's daughter;
• the same child may not be adopted concurrently by two or more people.
•  The child to be Adopted must be actually given and taken in adoption by the concerned parents or guardians, and there must be an intention to transfer the child from the family of its birth to the family of its adoption. As previously stated, if the adoption is for a son, the Adoptive Father or Mother must not have a son. The Supreme Court, on the other hand, has ruled that a son in embryo does not invalidate an adoption. The law makes no requirement that the Adoptive Mother be pregnant at the time of the adoption. AIR 1964, SC 510 (1964), 4 SCR 497, Guramma vs. Mallappa.

 

NO RELIGIOUS CEREMONIES OR DEEDS REQUIRED FOR A VALID ADOPTION

There are no religious ceremonies required for a valid adoption under the 1956 Act. What is important is that the parents intend to transfer the child from its biological family to the adoptive family. The Act also does not require the execution of a Deed of Adoption. However, if the parties registered any such Deed, Section 16 of the Act enacts a presumption that the Act's provisions were followed unless the contrary is proven.

 

DATTA HOMAM IS NO LONGER REQUIRED FOR A VALID ADOPTION GIVING AND TAKING OF CHILD IS EXTREMELY IMPORTANT:

As previously stated, the 1956 Act does not require any Religious Ceremonies or a Deed of Adoption for a valid adoption. The ancient Hindu Law that required a "Datta Homam" is no longer required for a valid adoption. The giving and taking of the child in adoption is critical for a valid adoption under Section 11. The Supreme Court ruled that the words "with intent to transfer the child from the family of its birth to the family of its adoption" in Section 11 (iv) are merely indicative of the outcome of the parents' actual giving and taking.  The ceremony of giving and taking is symbolic of the Adopted Son being transplanted from his birth family to the adoptive family. Kartar Singh vs. Surjan Singh, 2 SCC 559 (1974), 1 SCR 742 (1975).

NO SEX OR CASTE CONSIDERATIONS FOR ADOPTION:-

According to ancient Hindu law, only sons could be adopted, not daughters, because only sons could perform the last rites and continue the lineage. However, the 1956 Act recognizes the adoption of a daughter as well. Though adoption of a daughter was not recognized under ancient Hindu Law, some broad-minded writers, such as Nanda Pandit, advocated for it because such a daughter could be given in marriage, earning the adoptive parents the merit of Kanyadana. See Nanda Pandit's Dattaka Meemamsa. However, under ancient Hindu law, the adoption of a daughter is not legal. A daughter may now be adopted, and such adopted daughter will succeed to her parents' property to the extent permitted by Hindu Law of Succession. The 1956 Act also eliminated all caste considerations for adopting a child, which was a revolutionary change. Under ancient Hindu law, a Brahmin could only adopt a Brahmin boy, a Kshatriya could only adopt a Kshatriya boy, and so on and so forth, but now a person from one caste can adopt a boy or girl from another caste. The above changes, which remove sex and caste considerations, are in line with the most recent reformative needs of Hindu society, as well as the principle of equality enshrined in Article 14 of the Constitution.

A stepfather who spends money on maintenance does not become an adoptive father. The Supreme Court ruled in Ramdas alias Ramsuraj vs. Smt. Vandia Bai, AIR 1997 SC 1563, that there was no question of adoption by a stepfather simply because the stepfather spent money on the upkeep and marriage of the stepchildren. It would not imply that the step son was adopted by a stepfather with whom he was living after his mother married the stepfather. Taking up the expenditure on the occasion of the step daughter's marriage has no bearing on the adoption of the step son.

EFFECT OF ADOPTION SECTION 12 OF THE 1956  :-

Section 12 of the 1956 Act states that:

• the child adopted becomes the child of his or her adoptive father or mother, and the child's ties in the family of his or her birth are severed and replaced in the adoptive family;
• property already vested in the child prior to adoption will continue to vest;
•  the child cannot marry whom he or she could not marry in the family of birth; and 
• the adopted child will be adopted.
•  The Supreme Court ruled that the child who is adopted has no ties to the family of his birth. In the adoptive family, these ties are automatically replaced by those created by the adoption.
•  In other words, where the adoption is by a widow, the child adopted is linked to the sonship relationship with the deceased husband of the widow. Other husband's collateral relations would be linked to the child through the widow's deceased husband. Though Section 14 does not expressly state that the child adopted by the widow becomes the adopted son of the widow's husband, the son adopted by the widow is the result of adoption by either spouse in that the adoptive child becomes the child of both of these spouses. AIR 1970, SC 343; (1970) 2 SCR 1. Sita Bai vs. Ramchandra, AIR 1970, SC 343; (1970) 2 SCR 1.
• Previously, the law stated that when a widow adopts, the adopted son's rights dated back to the date of the adoptive father's death, and he had the right to end any partition that occurred after the adoptive father's death and claim a share in the family properties as if they were still joint.
•  However, clause (c) of the proviso to Section 12 of the Act eliminates the fiction that the adoptive son existed at the time of the adoptive father's death and was claiming properties as if he were a co-parcener.  The rights of the adopted child have been limited to this extent by codified law. This restriction is imposed by said proviso (c) on the rights of a child adopted by either a male Hindu or a female Hindu, and not just in the case of female Hindu adoption. This limitation, however, does not imply that a child adopted by a widow will not be considered the adopted son of her deceased husband. AIR 1967, SC 1716: (1968) 2 SCJ 316; Sawan Ram vs. Kalawanti, AIR 1967, SC 1716: (1968) 2 SCJ 316.

LEGAL RIGHTS OF AN ADOPTED CHILD:-

• Section 12 Proviso (c) departs from Hindu Law by stating that the adopted child shall not divest any person of any estate that had vested in him or her prior to the adoption. In the instant case, the widow was the limited owner of the property after her husband died, and after the Hindu Succession Act came into force, she became an absolute owner, and thus the property of her husband vested in her, and she could not be deprived of any of her rights in the property simply by adopting a child. The adoption would come into play, and the adopted child would be able to obtain the rights to which he is entitled following her death. AIR 1990 SC 1153, Dinaji vs. Daddi.
•  No one who has been adopted may be deprived of any property that was rightfully theirs prior to the adoption.

STATUS IN THE FAMILY OF AN ADOPTED CHILD AFTER ADOPTION

Adoption is a personal act under the Hindu Adoptions and Maintenance Act; Section 12 of the Act states that "he or she who is Adopted becomes completely a member of the adoptive family for all purposes" - whether religious or secular. AIR 1986, AP. 209, A.S. Sailaja vs. Principal, Kurnool Medical College and Others.

DOCTRINE OF 'RELATION BACK:-

The following excerpt is from Sri R.K. Agarwal's Hindu Law, 1992 Edition, Page 156, published by Pioneer Prints in Agra.- "When a widow adopts a son for her husband after the property has vested in the collateral or heirs and successors of the husband, in the eyes of law, it will be deemed that the adoption took place during the husband's life-time and the adopted child was present at the time of the husband's death, thus the adoption will relate back to the child shall have a right to inherit the property of his adoptive father and if the property has vested in other. This cardinal rule is based on the "Relation Back" theory because the adoption dates back to when the widow's husband died. The legal fiction that an adopted son's adoption relates back to the date of his adoptive father puts him in the position of a posthumous son. The "Relation Back" theory's scope is quite clear. It only applies when the adopted son's claim relates to his adoptive father's estate. This estate may be definite and certain, as when he is the sole and absolute owner of the properties, or it may be fluctuating, as when he is a member of a Joint Hindu Family, where the interest of the co-parceners is subject to increase or decrease by death or birth. In either case, the adopted son is declared to be entitled to the adoptive father's interest as of the date of his death. The theory underlying this doctrine is that there should be no break in the line of the adoptive father."

In other words, under this doctrine, a son that the widow adopted was considered to have entered the adoptive family on the day her husband passed away. The adopted son was then placed in the role of a posthumous son, and by legal fiction, all of his relationships within the adoptive family were traced back to the date of his adoptive father's death.

However, the rule had two exceptions:-

• Any lawful alienation effected by a female heir since the death of the adoptive father and before the date of adoption was binding on the adopted son
• If the property by inheritance went to a collateral, (relatives of one another who descend from a common ancestor) the adoption could not divest the property which was vested in the heir of the collateral

 

PROOF OF ADOPTION: -

Because the Datta Homam religious rite was abolished by the 1956 Act, there is no need to prove any such religious rites. Furthermore, no registered deed is required for a valid adoption; however, if such a deed exists, Section 16 of the Act presumes that the formalities of adoption have been followed according to law, unless the contrary is proven.

The person who seeks to displace natural succession to property by claiming Adoption bears the burden of proving that there was a valid adoption. Raghavamma vs. Chenchamma, AIR 1964, SC 136: (1964) 2 SCR 933, and Debi Prasad vs. Tribeni Devi, AIR 1970, SC 1286: (1971) 1 SCR 101, are two cases.

Adoption evidence should be free of all suspicions of fraud and so consistent and probable that there is no reason to doubt its veracity. Chalti Bai vs. Kishori Lal, AIR 1959, SC 504 (1959) SCJ 560. Because adoption is a family affair, the witnesses are usually family members. AIR 1966, SC 1137 (1967), 2 SCJ 672, Eramma vs. Mudappa. The mere performance of rites does not always support adoption. Adoption is not established simply by living with a widow.

Chaltibai vs. Kishorilal, AIR 1959, SC 504: (1959) SCJ 560. Unless there were compelling and extraordinary circumstances, the Supreme Court stated that it is unthinkable that an affluent family could have adopted in a village without pomp and show. AIR 1964, SC 136, Raghavamma vs. Chenchamma.

DEED OF ADOPTION IS NOT ADMISSIBLE IN EVIDENCE, IF NOT REGISTERED :-

A 28-year-old man's adoption deed, which was not registered but only notarised by a Notary Public, was ruled inadmissible as evidence in court. It was ruled that the inadmissibility of such a document would not result in a failure of justice, because Section 10 of the Hindu Adoption and Maintenance Act of 1956 sets the age limit for adoption at 15 years. Furthermore, the document was not registered in accordance with Section 16 of the Act. As a result, the Court ruled that a notarized document seeking to adopt a person over the age of 28 cannot be admitted as evidence. Nothing on record indicated that the party attempted to introduce it into evidence, either in the ordinary course or through an application under Order 18 Rule 17 of the Code of Civil Procedure. Rakhi vs. Ferozabad First Additional District Judge, AIR 2000 All. 166.

HINDU LAW OF ADOPTION: -

• A statement made by the Testator in his Will about a person as his adopted son was held to be certainly admissible evidence, but there is no rule of law or prudence stating that such a statement should not be regarded as conclusive, and the burden of proof falls heavily on the person described as the adopted son. AIR 1980, SC 419, Banwarilal vs. Trilokchand.
•  In one case, the adoption Deed stated unequivocally that the adopter had taken the adoptee in adoption. However, the deed made no mention of the year, date, or location of adoption. It also did not mention the names of those present at the time of adoption, as Adoption Deeds usually do. In fact, there was no evidence to show when or where the adoption occurred, or even whether the necessary ceremonies were carried out. Furthermore, the evidence of the doctor examined by the adoptee cast doubt on the adopter's mental capacity. The adoption was ruled invalid under the circumstances. AIR 1980, SC 1754, Madanlal vs. Gopi. 
•  Adoption is a personal privilege that cannot be extended to include an unlimited number of children. Parents have the right to adopt only one male child under Ancient Hindu Law. Adoption Law codification expanded this right to adopt a female child. It was determined that the privilege of adoption could not be extended to more than one female child. On this basis, the court denied the parents the right to adopt a second female child. The constitutionality of the Act's provisions was challenged on the basis of Articles 14 and 21 of the Constitution. The Court ruled that, even if Article 21 were stretched, it could not include the right to choose the size of one's family. Furthermore, the Court refused to hear the petition on the grounds that the Act had stood the test of time for nearly four decades. The Court did, however, observe that there is a need for parliament to re-examine the question of relaxing the Act's ban in light of the problem of adoption of children in need. AIR 1998 Bom. 228 in Sandhya vs. Union of India.

CANCELLATION OF ADOPTION :-

A valid adoption cannot be cancelled by the adoptive father or mother, nor can the adopted child renounce his or her status and return to his or her biological family, according to Section 15 of the Act.

 CONSIDERATION FOR ADOPTION :-

Receiving any payment or reward in consideration of the adoption is an offence under Section 17 of the Act, and it is punishable by imprisonment for up to six months, a fine, or both.

ADOPTION OF AN ORPHAN :-

Only through a court can an orphan be adopted.

HOW AN ADOPTION DEED CAN BE REGISTERED

An adoption deed has to be executed by both the parties and can be registered like any other document.