Recently in September, Union Ministry for Women and Child welfare development came up with the decision to make necessary amendments to the Adoption Act that are prevalent in India. Their contention would bring ease on the Non-resident Indians who would not be required to follow the procedure to stay a period of two years after the adoption of a child in India. So, this would be good until the procedures are correctly complied with and a strict process takes place to verify those officials as well. Adoption and maintenance have the same goals to attain once required to do so. It is for the welfare of the women and the children’s life on the other hand. Who can adopt? Can a single male who is not married adopt a child? This article will look into the general aspects under the Hindu Adoptions and Maintenance act of 1956, which is to see both adoptions and maintenance as well.
Applicability of act:
The act came into force on December 21st, 1956, and was made applicable to the country except for the state of Jammu and Kashmir. But, now, it shall be applicable to all people in that state as well if those persons are brought under the definition provided for Hindus. It becomes important for us to note who has been brought under the definition of Hindus and does it include Non-resident Hindus of India or not. Section 2(1) of the said act of 1956 defines the applicability of the act. It categorizes the applicability into three parts. The provision is reiterated as follows.
Firstly, it shall apply to any person who is Hindu by religion which would also include persons of Virashaivas, Lingayats, or a follower of Brahmo samaj or Arya samaj or Prarthana samaj,
Secondly, to any person who is Buddhists, Jains, or Sikhs by their religion,
Lastly, to any person who should not be a Muslim, Christian, Parsi, or Jew by religion unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with.
HAMA, 1956 and Adoption:
We know, from the title of the act, that this particular legislation includes not only provisions relating to the adoption in India but also the provisions relating to maintenance to a Hindu woman. In that way, Sections 5 to 17 under chapter 2 of the said act of 1956 deal with adoption. Let us look into a few important provisions under the same. The act makes all adoption that is not done in compliance after the commencement of this act and shall have no effect on both the parties.
Essentials of an Adoption under the act:
Firstly, let us look into the important essentials to make an adoption a valid one. Section 6 states that a person who takes adoption should have the capacity, the person who gives the adoption should also have the capacity, and the child who is being adopted should be capable of being adopted. Along with these conditions, the compliance of the whole of chapter 2 is more important.
The capacity of the person adopting; the person giving adoption, and the person being adopted:
Sections 7 and 8 of the act provide the eligibility for adoption to every Hindu male and every Hindu female. If a male Hindu adopts, he should be sound mind and not a minor, and in case there is a wife living, then the consent of such wife to adopt is much required. If there is more than one wife, then the consent of all wives is required. This means that an unmarried male shall have no possibility to adopt. On the other hand, if a Hindu female adopts a child, then along with the above conditions, the girl should not be married. So, there is gender discrimination, but the same has also been said to give for good reason. But, unfortunately, it would not be so.
On the other hand, section 9 provides the eligibility to give in for adoption. Parents, guardians are the persons who are eligible to give in adoption. Only the father is dead, the mother shall do such act of giving in adoption, but if he is alive, the consent of the mother shall be required.
Moving on, let us look at the condition to be fulfilled for a child to get adopted. Section 10 provides for the same. It states that the child must be a Hindu, a minor, and, very importantly, should not have been adopted earlier.
Effect of Adoption:
The adoption, once made, shall not be revoked unless and until it is not effectuated as per law. None of the child or the parents would revoke the same. Once adopted, the ties of the adopted child with an earlier family shall be severed, and the child shall be deemed to be the child of adopted parents legally.
HAMA and Maintenance:
Sections 18 to 28 under chapter 3 of the HAMA, 1956, provide for provisions relating to maintenance under Hindu law.
Who can get maintenance under the act?
Section 18 of the act states who can get maintenance under the act. It states that a Hindu woman who has been married to a Hindu husband before or after the commencement of this act shall be entitled to get maintenance. As per this section, she can live separately even not forfeiting her right to get maintenance in the conditions as mentioned under sub-clause (a) to (g) of section 18(2). Section 18(3) prohibits the maintenance of a wife who is unchaste and who has converted to another religion after the marriage.
Amount of Maintenance:
Section 23 of the act provides for a rule regarding the amount to be calculated for the purpose of maintenance to a wife. It states that the determination of maintenance shall be vested in the hands of respective courts after taking into due consideration as set out in the sub-section (2) and (3) of section 23. As per section 25 of the act, this maintenance shall be changed in case there is any material change in the circumstances of the maintenance.
Conclusion:
Having seen the act, it is clear these provisions will, of course, require changes and amendments if the need permits for the welfare of the married woman as well as for the children.
