Hindu adoption and maintenance act 1956

Hindu adoption and maintenance act was enacted in India as a part of the Hindu Code bills in 1956 to deal with the legal process of adopting children bi Hindu adults. The act applies to all Hindus including Buddhists, Jains or Sikhs, their illegitimate children, and Hindu converts. The act applies to the adoptions after the date of its enactment.

Requisites of a valid adoption-

Section 6 of the Hindu adoption and maintenance act, 1956 enumerates the requisites of a valid adoption which are as follows –

(i) the person adopting must have the capacity and the right to adopt.
(ii) the person who is giving in the adoption should have the capacity to do so.
(iii) the person who is being adopted should be capable of being taken into adoption.
(iv) other conditions of the act should have complied within the process of adoption.

Section 6 of the act states that the capacity to adapt as well as the right to adopt are the necessary conditions to make a valid adoption. The capacity and the right to take in adoption at two different things. A person may be capable of adapting at the same time but he may not have the right to do so. Therefore to constitute a valid adoption, the presence of both things is necessary.

Conditions necessary for males and females-

Sections 7 and 8 of the Hindu adoption and maintenance act 1956 deal with the person who may adopt a child. Section 7 deals with adoption by a male and Section 8 deals with the adoption by a female.
Section 7 – capacity of a male to take in adoption-

• Hindu male can take in adoption if he-
• Is of a sound mind
• Is not a minor
• Has the capacity to adapt.
• If has a wife living, has taken her consent. ( Unless the wife has denounced the world, is not a Hindu anymore or has been declared of unsound mind by a court of competent jurisdiction )

Note: if a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is necessary for any of the reasons specified in the preceding provisions. Also, if a woman is not a legally wedded wife of the adopting male he doesn’t need to take her consent.

Section 8- Capacity of a female to adopt- Section 8 of Hindu adoption and maintenance act 1956 provides that Hindu unmarried female can adopt if she-

• Is of sound mind
• Is not a minor
• Married Hindu female can adopt if –
• She is capable of taking in adoption
• Her marriage has been dissolved (section 13 of the Hindu Marriage Act )
• Her husband is dead
• Her husband has renounced the world
• Her husband has ceased to be a Hindu.
• Her husband has been declared of unsound mind by a court of competent jurisdiction

As stated above, the capacity to take a child in adoption and the right to take a child in adoption are two different aspects. The rights of a person to take a child in adoption are discussed in section 11 of The Hindu adoption and maintenance act 1956.

Section 11 of the Hindu adoption and maintenance act 1956, lays down other conditions for a valid adoption-

(i) In case of adoption of a son, the adopting male or female should not have a Hindu living son, grandson, or great-grandson. ( by blood or adopted )
(ii) In case of adoption of a daughter, the adopting male or female must not have a living Hindu daughter or granddaughter at the time of adoption. ( By blood or adopted )
(iii) In case of adoption of a daughter, if the adopter is a male, he should be at least 21 years older than the child.
(iv) In case of adoption of a son, if the adopter is a female, she should be at least 21 years older than him.
(v) the same child should not be adopted by two or more persons simultaneously,
(vi) the child should be given in adoption by the parents or guardians and must be taken.

Who may give in adoption?
Section 9 of the Hindu Adoption and Maintenance Act prescribes the capacity of a person who gives the child in adoption –

• Only the father, mother, and guardian can give a child adoption.
• The father if living has the sole right to give in adoption with the mandatory consent of his wife if living, ( unless she has denounced the world, has ceased to be a Hindu, or has been declared of unsound mind by a court of competent jurisdiction)
• The mother of a child may give in adoption, if her husband has died, has denounced the world, ceased to be a Hindu, or has been declared of unsound mind by a court of competent jurisdiction.
• Where both the parents have died, renounced the world, declared of unsound mind, or have abandoned the child or the parentage of the child is not know, the guardian may give in the child for adoption with the previous permission of the court.
• Before granting permission to the guardian to give in adoption, the court should make sure the guardian receives no payment in the exchange of adoption except when court-sanctioned and the adoption guarantee welfare of the child.

Who may be adopted?

Section 10 of the Hindu Adoption and Maintenance Act, provides the necessary qualifications to make a child fit for adoption. These are:

• He/she is a Hindu
• He/she hasn’t already been adopted
• He/she has not been married, unless any custom or usage allows the adoption of married subjects
• He/she is less than fifteen years in age unless any custom or usage allows the adoption of the subject more than fifteen years in age.

Effects of adoption-
Section 12 of the Act states the effects after the child is deemed to be the child of his/her adoptive family. –

(a) the child is not allowed to marry someone which he/she couldn’t have married if continued with her former family.
(b) Any property vested in the child continues to vest in him/her, along with the obligations attached if any.
(c) the child after his/her adoption shall not divest any person of any estate vesting in that person before adoption.