Date: 30 Sept, 2020
by Anmol Sidhu, UILS, Panjab University
Adoption can be defined as a legal process whereby an adult becomes the guardian of a child assuming all the parental responsibilities.
Once the process is completed there arises a new relationship between the child and the adoptive parents thereby terminating all existing ties with the biological parents.
The Hindu Adoptions & Maintenance Act,1956 specifically deals with all the matters relating to an adoption by a Hindu.
WHO MAY TAKE IN ADOPTION?
Section 7 & 8 of the Act deals with the subject matter. It specifically mentions the conditions for a Hindu Male and Female to take in adoption.
Therefore, under the Act, both Hindu male and female have the capacity to adopt. Also motive is not relevant while making an adoption.
Therefore, for adopting a child two conditions should be fulfilled:
Major: A major is a person who has attained the age of 18 years but for a person to whom a guardian has been appointed it is 21 years.
Sound mind: The person making an adoption needs to be of sound mind.
ADOPTION BY HINDU MALE/FEMALE:
The above conditions are the same for both Hindu males and females. Another important condition for both is if they are married then the free consent of the spouse is also necessary to make a valid adoption which is specifically stated in sections 7 & 8 of the Act.
The only exception to consent is that the spouse has either ceased to be a Hindu or has completely renounced the world.
WHO MAY GIVE IN ADOPTION?
Section 9 of the Hindu Adoptions & Maintenance Act, 1956 gives the power to only 3 persons.
Father: The Father of the child can give him/her in adoption but only with the consent of the mother of the child. The consent of the mother can only be dispensed if she is declared to be of unsound mind, if she has renounced the world or if she has ceased to be a Hindu.
Mother: The Mother of the child can also give the child in adoption only with the consent of the father of the child. The consent of the father can only be dispensed if he is declared to be of unsound mind, if he has renounced the world or if he has ceased to be a Hindu.
Guardian: A Guardian can exercise his right only under certain conditions.
a. If both parents are dead
b. If the parents have completely renounced the world
c. If the parents are declared of unsound mind by a court
d. If parents have abandoned the child
e. If parentage of the child is not known
Also, prior permission of the court is necessary for giving a child in adoption by a guardian. No court gives such permission unless they believe it is for the welfare of the child.
WHO MAY BE TAKEN IN ADOPTION?
Section 10 of the said Act talks about the qualifications to be fulfilled by a child to be taken in adoption.
The child must be a Hindu.
The child must not have already been adopted.
The child should not have been married unless there’s a custom permitting the same.
The child must not be more than 15 years old unless there’s a custom permitting the same e.g. there is a custom in Mumbai and Punjab permitting the adoption of a child aged more than 15 years hence such adoption is valid.
Some other conditions that are necessary to make an adoption. Section 11 of the Hindu Adoptions and Maintenance Act, 1956 states the following conditions:
The Act puts a bar on the adoption of a son if there is an existence of a Hindu son, grandson, or great-grandson whether by blood relationship or adoption.
The Act also puts a bar on the adoption of a daughter if there is an existence of a Hindu daughter or son’s daughter whether by blood or through adoption.
If a Hindu male is adopting a female then he must be at least 21 years elder to her and if a Hindu female is adopting a Male then she must be at least 21 years elder to him.
No two persons can adopt the same child unless they are husband and wife (in that case the child will be either of them).
The child must actually be given and taken in adoption.
Ceremonies: The only ceremony that has been retained by this Act is that of giving and taking the child in adoption. No other ceremony is mandatory for making an adoption.
EFFECT OF ADOPTION
After the child has been lawfully adopted all his ties with his family of birth are severed and he becomes a part of the adoptive family.
He shall be considered the same as the natural son of the adopted family and he will be a coparcener in the property of his adopted parents.
He shall not hold any interest in the property of his natural parents.
SHORTCOMINGS IN THE CURRENT ADOPTION SYSTEM
One of the major challenges in the current scenario is the varied adoption laws for different religions.
There are no uniform adoption laws in India making the whole process a bit chaotic and unorganized. Uniform adoption laws should be made to make the whole process work better.
There are no checks as to why the parents are adopting a child often leading to child trafficking and many other such serious crimes.
More stringent laws should be made and there needs to be a proper check on the entire system.