Table of Contents

Adoption under Hindu law

Table of Contents

Theoretical overview

Adoption under Hindu law is governed under Hindu Adoption and Maintenance Act,1956. Chapter 2 of the same particularly talks about adoption. Adoption is one of those fictions of law which have been marshalled for furtherance of the individual interest. The law of adoption enables a childless person to make somebody’s child as his own. Hindus foresaw this at the dawn of their civilization. Their ideal was not just to have a son but the adopted son must bear a reflection of the natural son.

According to Manu, adoption is the “taking of a son, as a substitute for the failure of a male issue.” Thus, it is a transplantation of a son from one family in which he is born to another family where he is given by the natural parents by way of gift. On adoption, ties of the son with his old family are severed and he is taken being born in the new family, acquiring rights, duties and status in the new family. 

Requisites of a Valid Adoption 

Section 6 of Hindu Adoptions and Maintenance Act, 1956 provides the requisites of valid adoption. It lays down that no adoption shall be valid unless:

  1. The person adopting has the capacity and also the right to take in adoption.
  2. The person giving adoption has the capacity to do so
  3. The person adopted is capable of being taken in adoption
  4. The adoption is made in compliance with other conditions mentioned in this Chapter. 

Capacity of a male Hindu to take in adoption [Section 7]

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. But if the male Hindu has a wife living at the time of adoption, he shall not adopt except with the consent of his wife. But the consent of the wife of a male Hindu is not necessary in the following three conditions: –

  1. the wife has completely and finally renounced the world, or
  2. the wife has ceased to be Hindu, or
  3. the wife has been declared by a Court of competent jurisdiction to be of unsound mind. 

The man is required to take consent of the wives or wife, before adoption or else the adoption will be void. If any one of them is suffering from any disability, her consent can be dispensed with.

Capacity of a female Hindu to adopt a child [Section 8]

Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. But if the female Hindu has a husband living at the time of adoption, she shall not adopt except with the consent of her husband. But the consent of the husband of a female Hindu is not necessary in the following three conditions: –

  1. the husband has completely and finally renounced the world, or
  2. the husband has ceased to be Hindu, or
  3. the husband has been declared by a Court of competent jurisdiction to be of unsound mind. 

A female Hindu who is unmarried or a widow or a divorcee can also adopt a son to herself, provided she has no Hindu daughter or son’s daughter living at the time of adoption.

Persons capable of giving in adoption [Section 9]

No person except the father or mother or the guardian of the child shall have the capacity to give in adoption. 

  1. Capacity of the father to give in adoption: – If the father is alive, he shall alone have the right to give in adoption but such right shall not be exercised save with the consent of the mother unless the mother has completed and finally renounced the world or ceased to be a Hindu or has been declared to be of unsound mind by a court.
  2. Capacity of the mother to give in adoption: – The mother may give the child in adoption if the father is dead or had completely and finally renounced the world or has ceased to be a Hindu or has been declared to be of unsound mind by the court. 
  3. Capacity of the guardian to give in adoption: – Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court be of unsound mind or where the parentage of the child is not known, the guardian of a child may give the child in adoption with the previous permission of the Court to any person including guardian himself. Before granting permission to a guardian the court shall be satisfied: 
  1. the adoption will be for the welfare of the child, consideration being given to the wishes of the child for this purpose having regard to the age and understanding of the child. 
  2. That the applicant for permission has not received or agreed to receive any payment in consideration of the adoption except as the court may sanction. 
  3. 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. 

Who can be adopted [Section 10]

No person shall be capable of being taken in adoption unless the following conditions are fulfilled: –

  1. He or she is a Hindu
  2. He or she has not already been adopted
  3. He or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption.
  4. He or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. 

Other conditions of a valid adoption [Section 11]

  1. If the adoption is of a son, adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son’s (whether by legitimate blood or by adoption)
  2. If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter living at the time of adoption. 
  3. If the adoption is made by a male and the person to be adopted is a female the adoptive father is at least twenty-one years older than the person to be adopted. 
  4. If the adoption is made by a female and the person to be adopted is a male the adoptive mother is at least twenty-one years older than the person to be adopted. 
  5. The same child may not be adopted simultaneously by two or more persons.
  6. The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth [or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption. Provided that the performance of datta homan shall not be essential to the validity of adoption.

Relevant sections

Section 6 Requisites of a valid adoption. —No adoption shall be valid unless—

(i) the person adopting has the capacity, and also the right, to take in adoption;

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.

Section 7 Capacity of a male Hindu to take in adoption. —Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption: Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife 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. Explanation.— 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 unnecessary for any of the reasons specified in the preceding proviso

Section 8 Capacity of a female Hindu to take in adoption. —Any female Hindu—

(a) who is of sound mind,

(b) who is not a minor, and

(c) who is not married, or 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.

Section 9 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) Subject to the provisions of 4 [sub-section (3) and sub-section (4)], the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother 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.

(3) The mother may give the child in adoption if the father 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.

5 [(4) Where both the father and mother are dead 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 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.]

(5) Before granting permission to a guardian under sub-section (4), 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.— For the purposes of this section—

(i) the expressions “father” and “mother” do not include an adoptive father and an adoptive mother; 

7 [(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.

Section 10. Persons who may be adopted.—No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:—

(i) he or she is a Hindu;

(ii) he or she has not already been adopted;

(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

Section 12 Effects of adoption. —An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family: Provided that—

(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;

(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.

Important Case Laws

  1. Bholooram v Ramlal, Husband and wife were married but were staying separately. Husband went ahead and adopted a child without wife’s consent. Held- Not a valid adoption since their marriage was still valid and there is no consent. 
  2. Maya Ram v Jai Narayan,

Dispute was regarding the marital status of the child and who is to be taken into adoption. There existed a custom in Jat community where age and marital status is not needed for adoption. The adoption is valid.

  1. Sarabjeet Kaur v Gurmel Kaur,

Consent of both the parties is important. Consent can be both implied and expressed consent. 

Points to remember

  • Adoption under Hindu law is governed under Hindu Adoption and Maintenance Act,1956. Chapter 2 of the same particularly talks about adoption.
  • According to Manu, adoption is the “taking of a son, as a substitute for the failure of a male issue.”
  • On adoption, ties of the son with his old family are severed and he is taken being born in the new family, acquiring rights, duties and status in the new family. 
  • Section 6 of Hindu Adoptions and Maintenance Act, 1956 provides the requisites of valid adoption
  • Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. But if the male Hindu has a wife living at the time of adoption, he shall not adopt except with the consent of his wife
  • No person except the father or mother or the guardian of the child shall have the capacity to give in adoption

Frequently Asked Questions (FAQs)

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