By HARPREET KAUR, ADVOCATE
I. WHO CAN ADOPT
It was observed in the case of Inder singh v. Kartar Singh, that the object of adoption is twofold:-
- To secure performance of one’s funeral rites
- To preserve the continuance of one’s lineage.
In India, adoption of children by Hindu adults is governed by the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred as “HAMA”). A Non-Indian Hindu male cannot adopt under the provisions of HAMA. This law has been further supplemented with New Adoption Regulations, 2017 framed by CARA (Central Adoption Resource Authority) as mandated under section 68 (c) of Juvenile Justice (Care and Protection of Children) Act, 2015 which has come into force from 16th January, 2017.
HINDU ADOPTIONS AND MAINTENANCE ACT (1956)
A Hindu male can adopt a child under the provisions of HAMA if:
- He has a domicile in India
- He is minimum 18 years old and is of a sound mind
- He has not renounced the world
- He does not cease to be a Hindu.
Rules with respect to the status of the adopting father:
When an Indian Hindu male is married to an Indian Hindu female, he requires the consent of his wife unless the wife has ceased to be a Hindu or the wife has completely and finally renounced the world or the wife has been declared to be of unsound mind by a court which has a competent jurisdiction.
When the Indian Hindu male is married to an Indian non-Hindu female, the wife’s consent is not required under HAMA. However, wife’s consent is needed if a petition for divorce is still pending before the divorce court.
Other conditions for a valid adoption
If a Hindu male adopts a female child, there must be at least 21 years age difference between the two. It has been held by Bombay High Court in Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang Narayan Kanse, Provision of section 11 requiring age difference between adoptive mother and adoptive son to be at least 21 years is mandatory in nature. Word ‘must’ cannot be read as ‘may’. This breach is fatal to adoption.
The adoption must be real and not symbolic. The child must be actually given and taken in adoption by the respective parties. However, no specific shastric or religious ceremony is necessary for the purpose. It has been held by Supreme Court in M. Gurudas v. Rasaranjan that in order to prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony. Also, in the case Nemichand Shantilal Patni v. Basantabai, it was observed that there was no evidence in hand that the plaintiff was actually given and taken in adoption by the parents or guardians of the plaintiff as required under section 11(vi). Adoption was held not to have taken place. It has been observed by Orissa High Court that Law is well settled that adoption displaces the natural line of succession and therefore, a person who seeks to displace the natural succession to the property alleging an adoption must prove the factum of adoption and its validity by placing sufficient materials on record.
If a Hindu male wishes to adopt a male child, he must not already have any Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption). Likewise if he wishes to adopt a female child, he must not have any Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption).
Adoption by a Hindu woman
A Hindu woman can also adopt a child if she is domiciled in India and is either unmarried or a widow or a divorcee. If she is married, the consent of the husband is required to be taken. However, following exceptions apply:
- If husband has been declared to be of unsound mind by a court of competent jurisdiction.
- If husband has completely and finally renounced the world.
- If husband has ceased to be a Hindu.
She can adopt either an unmarried boy or a girl under 15 years of age. However, a married boy or girl and over the age of 15 years may be adopted provided custom or usage permit so, as in case of the adopting male. If a boy is adopted by the woman, adopting mother must be at least 21 years older than him. In the case Narinderjit Kaur v. Union of India, it was held by Punjab and Haryana High Court that subsequent marriage of the adoptive mother cannot invalidate the adoption.
In the case of Sawan Ram v. Kalavati, the Supreme Court has held that in the case of adoption by a widow, the adoption would not only be by the female, but also to her deceased husband.
Clause 5 of CARA notification provides:
(a) The prospective adoptive parents should be physically, mentally and emotionally stable; financially capable; motivated to adopt a child; and should not have any life threatening medical condition;
(b) Any prospective adoptive parent, irrespective of his marital status and whether or not he has his own biological son or daughter, can adopt a child;
(c) Single female is eligible to adopt a child of any gender:
(d) Single male person shall not be eligible to adopt a girl child;
(e) In case of a couple, the consent of both spouses shall be required;
(f) No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship;
(g) The age of prospective adoptive parents as on the date of registration shall be counted for deciding the eligibility and the eligibility of prospective adoptive parents to apply for children of different age groups shall be as under
|Age of the child||Maximum composite age of prospective adoptive parents||Maximum age of single prospective adoptive parent|
|Upto 4 years||90 years||45 years|
|Above 4 upto 8 years||100 years||50 years|
|Above 8 upto 18 years||110 years||55 years;|
(h) The minimum age difference between the child and either of the prospective adoptive parents should not be less than twenty five years;
(i) The age for eligibility will be as on the date of registration of the prospective adoptive parents;
(j) Couples with more than four children shall not be considered for adoption.
II. WHO CAN GIVE A CHILD IN AN ADOPTION
Persons capable of giving in adoption:
(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(2) Where both the father and mother are dead or have 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 not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.
(3) Before granting permission to guardian for adoption the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.
Explanation of section 9 of HAMA clarifies that once a child who has been adopted cannot be further given in adoption.
III. WHO CAN BE ADOPTED
The adopted child can be either male or female. Under Hindu Adoptions and Maintenance Act, 1956 the adopted child must fall under the Hindu category.
The child also needs to be unmarried; however, if the particular custom or usage is applicable to the involved parties then the adoptee can be married.
The child cannot be the age of sixteen or older, unless again it is custom or the usage is applicable to the involved parties.
An adoption can only occur if there is not a child of the same sex of the adopted child still residing in the home. In particular, if a son were to be adopted then the adoptive father or mother must not have a alive legitimate or adopted son living with them.
Child eligible for adoption under CARA Regulations
The following children shall be eligible for adoption, namely:-
- Any orphan or abandoned or surrendered child, declared legally free for adoption by the Child Welfare Committee;
- A child of a relative defined under sub-section (52) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2015;
- A child or children of spouse from earlier marriage, surrendered by the biological parent(s) for adoption by the step-parent.
IV. LEGAL EFFECTS OF ADOPTION
Section 12 of Hindu Adoptions and Maintenance Act provides that after adoption, the adopted child loses all its ties with the natural family and is treated like a born child in the adoptive family. The adopted child is conferred with all the rights and privileges of a natural born child in the adopting family. On the other hand, such a child loses all his rights and privileges of a natural born child in the natural family.
In the landmark case of Basavarajappa v. Gurubasamma, Supreme Court has held that on adoption, adoptee gets transplanted in adopting family with the same rights as that of natural-born son. Adopted child becomes coparcener in Joint Hindu Family property after severing all his ties with natural family.
However, it has been observed in Devgonda Raygonda Patil v. Shamgonda Raygonda Patil by the Bombay High Court that an adoptee can take only that property to his adoptive family from his birth family which is already vested in the adoptee prior to adoption by inheritance or by partition in the natural family or as sole surviving coparcener as he becomes its absolute owner. Clause (b) of the proviso to section 12 cannot be attracted when the property has not been vested in him and is still a fluctuating coparcener property.
Also, all the restraints imposed upon him/her with respect to degree of relationship under Hindu Marriage Act apply in both the new as well as the previous families. Hence, he/she cannot marry his/her siblings by birth as well as by adoption.
V. REVOCATION/NULLIFICATION OF ADOPTION
Section 15 of Hindu Adoptions and Maintenance Act provides that “No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can be adopted child renounce his or her status as such and return to the family of his or her birth.”
Also, the New Adoption Regulations, 2017 framed by CARA are silent regarding cancellation/revocation of adoption.
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 AIR 1966 Punj 258
 section 7, HAMA
 section 11, HAMA
 AIR 2006 Bom 123
 section 11, HAMA
 AIR 2006 SC 3275
 AIR 1994 Bom 235
 Suma Bewa v. Kunja Bihari Nayak , AIR 1998 Ori 29.
 section 8, HAMA. Section 8 of the Act has been amended in 2010 which serve the purpose of equality when it comes to taking consent with other spouse while adopting a child.
 AIR 1997 P&H 280
 AIR 1967 SC 1761
 section 9, HAMA
 Explanation.— For the purposes of this section—
(i) the expressions “father” and “mother” do not include an adoptive father and an adoptive mother;
[(ia) “guardian” means a person having the care of the person or a child or of both his person and property and includes—
(a) a guardian appointed by the will of the child’s father or mother; and
(b) a guardian appointed or declared by a court; and]
(ii) “court” means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.
 (2005) 12 SCC 290
 AIR 1992 Bom 189