National Law University of Study and Research in Law, Ranchi
Family Law – I
Hindu Women’s Right to Adoption
Submitted by: Submitted to:
Arnold Runda Dr. Sangita Laha
IIIrd Semester, Sec-A Associate Professor
Roll No.- 858 NUSRL, Ranchi
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1. Title: Hindu Women’s Right to Adoption
1.1 Introduction
‘Adoption’, the very concept comes in our mind with a smiling picture of a child, the most
beautiful and innocent creation of nature. The concept has a flavour of antiquity. Every living
creature whether it belongs to animal or plant kingdom, has been endowed with inherent
capacity to produce similar animals or plants through ‘reproduction’. One of the most important
purposes of the process of reproduction is to maintain existence and update one’s lineage or
the line of inheritance
Our old Shastric Hindu law gave paramount importance to the birth of a male child. Birth of a
male child in a family was believed to bring with itself the most valuable and precious thing
‘Moksha’ (salvation) not only to his father but to all his paternal forefathers. As our old Hindu
law did not permit the wife or a daughter to perform the funeral rites of a man or woman and
to perform ‘Pinddan’ (offering funeral cakes and libations of water) and thereby made her
unable to redeem the deceased and his forefathers from hell or to save them from the bindings
of cycle of rebirth; birth of a girl child was inauspicious. ‘Moksha’ (salvation) was so much
embedded in the cardiac pulses of the old Hindu people that this need actually gave birth to the
concept of ‘adoption’ for those parents who were unfortunately sonless. After ‘salvation’,
comes the concept of ‘inheritance’ which also played important role in the gradual growth and
maturity of the concept.
Our religious epics are well acquainted with the examples of babies that were born in one place
and brought up elsewhere by non-biological parents. ‘Sita’ in the ‘Ramayana’ and ‘Krishna’,
‘Karna’, in the ‘Mahabharata’ are some of the glaring examples. But generally during older
days the concept of adoption was confined within the limits of family, gotra, sapinda etc. With
the independence of India in the year 1947 and coming of codified and reformed Hindu law on
adoption in the year 1956, that is, the Hindu Adoptions and Maintenance Act (HAMA), any
person who comes within the definition of the word ‘Hindu’1is now able to take a child in
adoption. Contrary to old Hindu law, now a female Hindu can also validly adopt a child to
1
Section 2, Hindu Adoptions and Maintenance Act, 1956.
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herself. Also, a girl child is now eligible, unlike the old Hindu law, to be adopted by interested
parents.
1.2 Literature Review
Sivaramayya, B. (1962). The Hindu Adoptions and Maintenance (Amendment) Bill,
1962. Journal of the Indian Law Institute, 4(3), 461-463.
The Bill is welcome in that it marks a departure from the tardy tradition of Indian legislation
in rectifying lacunae in the enactments. The object of the Bill is to cure a certain lacuna in the
Hindu Adoptions and Maintenance Act, 1956, which hinders the adoption of orphans,
illegitimate and abandoned children who are being brought up by orphanages and institutions.
S. Aarthi Anand, & Prema Chandra. (2002). Adoption Laws: Need for Reform. Economic
and Political Weekly, 37(38), 3891-3893.
The adoption controversy that erupted last year drew attention to the many ills that clog the
wheels of adoption in India. But merely punishing the guilty will not ensure sweeping changes.
At the very outset, the need for change must recognise the disparities that exist, as for instance,
the procedural differences between in-country vs inter-country adoption processes. It must also
involve all actors in the system including the children themselves.
1.3 Research Objective
a) To study post-constitutional status of women and laws of adoption
b) To study the position of Hindu Women for Adoption
1.4 Significance of the Research
An Indian family was governed by patriarchy in early India. But with the changing in time, the
status of women has also evolved. With the whole world celebrating International Women’s
Day, it would be easy to analyze the position and space Indian women occupy today. With
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women participating in nationalist movements, to being pushed into the domestic household
space, to their resurgence as super-women today, women in India have seen it all.
There have been innumerable debates about gender in India over the years. Much of it includes
Rwomen’s positing in society, their education, health, economic position, gender equality etc.
India has seen an increased percentage of literacy among women, and women are now
entering professional fields, the practices of female infanticide, poor health conditions and lack
of education still persisting still continue. Even the patriarchal ideology of the home being a
woman’s ‘real domain’ and marriage being her ultimate destiny hasn’t changed much. The
matrimonial advertisements, demanding girls of the same caste, with fair skin and slim figure,
or the much-criticised fair and lovely ads, are indicators of the slow changing social mores.
So, the goal of the researcher to analyse the pre and post Constitutional effect of status of
women, and to study the right to adoption of Hindu women which has now been accepted in
the Hindu society.
1.5 Research Methodology
Only secondary data and no primary data are used while doing this research study. Relevant
books, reputed journals, Government reports, periodicals, etc. are referred in the course of this
research study. The study is based on some reports prepared by reputed National and
International Organizations. Published reports, news reports of news channels, articles in
journals and newspapers, websites, blogs are used.
1.6 Research Hypothesis
The post-constitutional effected the status of women to a greater extent. Women who were
made to regulate household dominated by the male in a patriarchal society, now have their own
identity. Hindu Women, after the independence of India, and formation of Modern Hindu Law,
now have their rights including right to adoption.
2. Post-Constitutional Status of Women and Laws of Adoption
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2.1 Post-Constitutional Effect of Hindu Law
Long before independence the theme on which Mahatma Gandhi wrote repeatedly was the need
to improve the status of Indian women. He emphasized the fact that women should not suffer
from any disability or discrimination. He respected their “personal dignity” without “belittling
their roles as mothers and wives” and gave women with men “equal tasks to perform in the
achievement of freedom”.2 The Mahatma said that “women have been suppressed under
custom and law for which man was responsible and in the shaping of which she had no hand.
Rules of social conduct must be framed by mutual co-operation and consultation. Legislation
has been mostly done by men and has not been always fair.”3
The status of women in British India and the Princely states was worse and the various practices
like ‘sati’, ‘widowhood’, ‘child marriage’, and ‘female infanticide’ were all seen as reflective
of the backwardness of Indian society and were therefore targeted for change. The role of
women in the National movement and the rise of the women movement during the Pre-
independence days ensured that the Constitution of India and independent India would see a
change for the better in the status of women.
The departure of the British in 1947 brought freedom to India and the independent India
adopted a very forward-looking Constitution as well as a complex legal system. India’s first
Prime Minister, Pd. Jawaharlal Nehru worked hard to unify the newly independent India by
proposing the reformation and codification of Hindu Personal law. Nehru completed
codification and partial reform and at the end, a series of four major pieces of personal law
legislations were passed in 1955-56: the Hindu Marriage Act, 1955; the Hindu Succession Act,
1956; the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and
Maintenance Act, 1956.
The Hindu Marriage Act came into force on 18th May 1955. It amends and codifies the law
relating to marriage among Hindus. Also, considerable modifications and amendments were
brought about by the Marriage Laws (Amendment) Act of 1976 in the Hindu Marriage Act,
1955 to make it more effective and women oriented. Unlike Shastric Hindu law, now intercaste
marriage between persons of different castes – Brahmin, Kshatriya, Vaishya and Sudra or
2
Patel, Sujata, Economic and Political Weekly, “Construction and Reconstruction of Woman in Gandhi”,
February 20, 1988, p. 377.
3
Nandela, Krishnan, “Gandhi on Women’s Empowerment”, www.mkgandhi.org/articles/women.htm
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persons professing the Hindu, Buddhist, Jain or Sikh religion is not prohibited.4 Monogamy
has been made a rule now.5 Bigamy is made punishable as an offence under IPC.6 Now, a valid
Hindu marriage is considerably simplified.7 Marriage according to Shastric Hindu law was
only a sacrament and was not a contract and therefore, a marriage solemnized during the
minority of either party does not render the marriage invalid.8
2.2 Change in Status of Women
When India got its independence, the participation of women nationalists was widely
acknowledged. When the Indian Constitution was formulated, it granted equal rights to
women9, considering them legal citizens of the country and as an equal to men in terms of
freedom and opportunity. The sex ratio of women at this time was slightly better than what it
is today, standing at 945 females per 1000 males. Yet the condition of women screamed a
different reality.
If one looks at the status of women then and now, one has to look at two sides of the coin; one
side which is promising, and one side which is bleak. They were relegated to the household,
and made to submit to the male-dominated patriarchal society, as has always been prevalent in
our country. Indian women, who fought as equals with men in the nationalist struggle, were
not given that free public space anymore. They became homemakers, and were mainly meant
to build a strong home to support their men who were to build the newly independent country.
Women were reduced to being second class citizens. The national female literacy rate was an
alarmingly low 8.6%. The Gross Enrolment Ratio (GER) for girls was 24.8% at primary level
and 4.6% at the upper primary level (in the 11-14 years age group). There existed insoluble
social and cultural barriers to education of women and access to organised schooling.
4
Mulla, Principles of Hindu Law, Vol.-11, ISBN: 978-81-8038-144-7, Lexis Nexis Butterworths, New Delhi,
Twentieth Ed., p. 14.
5
Section [5 (1)] of The Hindu Marriage Act, 1955 says “neither party has a spouse living at the time of the
marriage;”
6
Section 17 of the Hindu Marriage Act, 1955 and Sections 494 and 495 of the Indian Penal Code, 1860.
7
Sections 5 and 7 of the Hindu Marriage Act, 1955.
8
Mulla, Principles of Hindu Law, Vol.-1, ISBN: 978-81-8038-144-7, Lexis Nexis Butterworths, New Delhi,
Twentieth Ed., p. 747.
9
Article 14of the Constitution of India, 1950 says “Equality before law The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth”
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Today names like Arundhati Roy, Anita Desai, Kiran Desai, Shobhaa De, Jhumpa Lahiri can
put any other writer to shame. Today, the modern woman is so deft and self-sufficient that she
can be easily called a superwoman, juggling many fronts single-handedly. Women are now
fiercely ambitious and are proving their metal not only on the home front, but also in their
respective professions. Women in Indian are coming up in all spheres of life.
2.3 Laws of Adoption
The Personal Laws (Amendment) Act, 2010, now amends section 19(b) of the Guardians and
Wards Act, 1890 and includes the mother along with the father as a fit person to be appointed
as guardian. The Act provides for the mother to be appointed as a guardian along with the father
so that the courts do not appoint anyone else in case the father dies.
Adoption laws in India country falls within the arena of personal laws and varies from religion
to religion. Adoption is not permitted among Muslims, Christians, Parsis and Jews in India.
Persons belonging to these communities who are desirous of adopting a child can take a child
only in guardianship under the provisions of the Guardians and Wards Act, 1890. This Act
confers only a guardian- ward relationship to the child unlike the status given to a child born
biologically to a family. Once a child under foster care becomes major, he/she is free to break
away all his connections.
The adoption under Hindu law is governed by the Hindu Adoptions and Maintenance Act,
1956. The said Act applies only to the Hindus which are defined under Section 2 of the Act
and includes any person, who is a Hindu by religion including a Virashiva, a Lingayat or a
follower of Brahma, Prathana or Arya Samaj or a Buddhist, Jaina or Sikh by religion, to any
other person who is not a Muslim, Christian, Parsi, or Jew by religion. A person who has
converted to these religions is also considered Hindu under this Act.
Another Act which deals with the adoption of child by non-Hindu parents is the Juvenile Justice
Act of 2000. The enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000
and its subsequent amendment in 2006 is definitely a significant step of our legislature towards
recognition of adoption of orphan, abandoned and surrendered children by people irrespective
of their religious status. Under Section 41(6) of the Juvenile Justice Act, 2000, a child can be
given in adoption to the following persons:
a) A person irrespective of his/her marital status.
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b) The parents to adopt a child of the same sex irrespective of the number of existing biological
sons or daughters.
c) The childless couples.
Under Indian law, non-resident Indians or foreign nationals are also allowed to adopt a child.
They can apply under the Guardians and Wards Act, 1890 and if court deems it fit, he or she is
appointed the child’s guardian. The foreign nationals are then allowed to take the child to his
or her own country and adopt him or her as per the laws of his or her country. But citizens of
countries which do not allow adoption of children born in other countries cannot apply to adopt
children in India.
3. Position of Hindu Women for Adoption
3.1 Position of Women under different Personal Laws
Although the Indian Constitution guarantees all citizens equal rights irrespective of gender and
religion, but these rights do not extend to personal laws. In fact, still India does not have a
Uniform Civil Code. In family matters, legal decisions are based on religious law. Modern
Hindu law refers to one of the personal law systems of India along with similar systems for
Muslims, Parsis, and Christians.
For example, Muslims in India are governed by the Muslim Personal Law (Shariat) Application
Act of 1937. Marriage under the Muslim law is a contract with the right of polygamy available
to a Muslim man. What is more? A Muslim woman cannot marry a non-Muslim whereas a
Muslim man can do so. A husband has also a partial unilateral right of divorce. He can utter
the word ‘talaq’ thrice even without stating the reasons and in the absence of his wife.10 After
coming into force of Dissolution of Muslim Marriage Act, 1937, now, a Muslim woman is able
to take divorce on various grounds such as, absence of husband, failure to perform marital
obligations; impotency of husband; insanity; leprosy or venereal diseases ; repudiation of
marriage by wife; cruelty of husband and other grounds such as, Ila, Zihar, Khula, Mubarat and
Tafweez which are recognized as valid under Muslim law.11
10
Mohd. Shamsuddin v. Noor Jahan, AIR 1955 Hyd. 144
11
Ahmad, Aqil, Mohammadan Law, Central Law Agency, 1995 Ed., p. 116.
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Discrimination against women is expressly evident from the treatment accorded to the Indian
Christian women. Under Section 10 of the Indian Divorce Act (IDA) 1869, while a Christian
man may be granted a divorce on the grounds of adultery, a woman is required to prove an
additional marital offence like change in religion; a form of marriage with another woman;
incestuous adultery; rape, sodomy or bestiality and bigamy with adultery.
3.2 Difference between the Hindu Adoptions and Maintenance Act, and the
Guardians and Wards Act
There is no general law of adoption of children. As adoption is legal affiliation of a child it
forms the subject matter of personal law. Muslims, Christians and Parsis have no adoption laws
and they have to approach the court under the Guardians and Wards Act, 1890. Hindu are
governed in the matter of adoption by the Hindu Adoptions and Maintenance Act, 1956. As
personal laws of Muslims, Christians, and Parsis does not recognize adoption, they can only
take child in ‘guardianship’ under the provisions of the Guardians and Wards Act, 1890
(GAWA).
Unlike the child adopted under the Hindu Adoptions and Maintenance Act (HAMA) 1956,
GAWA only confers a guardian- ward relationship. The process makes the child a ward not an
adopted child. They do not have any automatic inheritance rights; adoptive parents have to
leave whatever they wish to bequeath to their children through a will which can be contested
by any blood relative. The guardian and ward relationship come to an end after the ward
attaining the age of majority that is twenty-one. The Act does not confer the child the same
status as a child born biologically to the family.
3.3 Position of Hindu Women under the Hindu Adoptions and Maintenance
Act, 1956
Coming to central point to discussion, that is, the adoption rights given to Hindu women under
HAMA. Section 7 and Section 8 of the HAMA deals with capacity of persons who may
lawfully take a son or daughter in adoption. The eligibility criteria for Hindu Woman to take a
son or daughter in adoption are:
a) The Hindu Woman should be of unsound mind.
b) The Hindu Woman should not be a minor.
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c) The Hindu Woman is not married can adopt a child.
d) In case of a married Hindu Woman, whose marriage has been dissolved whose husband
is dead or has completely 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.
After comparing Section 7 of the HAMA with its Section 8, we find that there exists a wide
gap between these sections which discriminates between a married Hindu male and a married
Hindu female. Under Section 7 of the said Act, a major, sound-minded male Hindu has got an
unconditional absolute right to adopt a child. If he is married, then there is a rider that for valid
adoption to take place free consent of wife or wives (if more than one wife is living at the time
of adoption) living at the time of adoption will be an essential condition precedent. This consent
is not necessary if the wife has renounced the world and or Hinduism completely and finally
or she has been declared by a court of competent jurisdiction to be of unsound mind.
After scanning Section 8 of the same Act, we will see a different picture. A major, sound-
minded female Hindu can take a child in adoption only if she is unmarried; widow or divorcee.
There is no such thing like a major, sound minded married female Hindu can adopt a child with
the free consent of her husband and also that this consent is not required if the husband has
renounced the world or the Hindu faith or has been declared to be of unsound mind by a court
having competent jurisdiction to do so (clause (c) of the Section 8). We can cite here the famous
Brajendra Singh’s case12 which projects some highly emotional and sensitive aspects of
human life. In this case honourable Supreme Court observed that there was no dispute that
Mishri Bai was a disabled lady living separately from her husband right from the day of her
marriage and in fact had been looked after by Brajendra Singh whom she adopted. The court
observed that all the evidence showed that husband and wife had been staying separately for a
very long time and that Mishri Bai was living a life like a divorced woman. The court
categorically declared that there was a conceptual and contextual difference between a divorced
woman and one who was living the life like a divorced woman. Mishri Bai may have been
living separately since the time of her marriage but there was no dissolution of marriage that
is, divorce. Thus, Mishri Bai did not have the capacity to adopt under HAMA. In a recent
decision on 4th September, 2006, it was held by the Kolkata High Court that during subsistence
of a marriage a wife has no right to adopt but only to give consent in adoption process if taken
12
Brajendra Singh v. State of M.P. AIR 2008 SC 1056.
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by her husband. In this case husband never took any initiative for decision to adopt. He was
only present. So, adoption made by the married lady was held invalid.13
Denial of this right to adopt a child to any married female Hindu (till the passing of the Personal
Laws (Amendment) Act, 2010); it seems to me is a clear violation of Fundamental Rights
guaranteed by the Constitution as well as the precious rights guaranteed by the Universal
Declaration of Human Rights and other various international documents to which India is also
a signatory.
4. Findings and Suggestions
a) India after getting its independence, has developed its laws. The modern Hindu Law in
particular has removed the suppression of patriarchy from the Hindu families.
b) Women have become ambitious and independent of old Hindu Laws and customs.
c) According to the modern Hindu Laws, intercaste marriage is allowed among the
Hindus.
d) Women now have the right to adopt a male or a female child if she fulfils the conditions
of Section 7 and 8 of the Hindu Adoptions and Maintenance Act.
e) Though the Constitution provides equality among both the genders, i.e. males and
females, the Personal Laws are violation of Fundamental Rights guaranteed the
Constitution of India.
f) I do not find any intelligible differentia which have a rational nexus to the object sought
to be achieved by the Act.
5. Conclusion
Thus, standing at the door of 21st century I strongly put my objection towards the highly
discriminatory, unjust and inhuman provision that is clause (c) of Section 8 of the Hindu
Adoptions and Maintenance Act, 1956 which deprive a married Hindu woman to adopt a child
of her choice independently and thereby prevent to make herself a part of decision making
process right from the smallest unit of family to the national as well as international level.
Although, the very Section 8 (c) has been amended through the enactment of the Personal Laws
13
Smt. Malati Roy Chowdhury v. Sudhindranath Majumdar and others, AIR 2007, Cal 4, (2007), CALLT 323
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(Amendment) Act, 2010 but the said Act needs proper reconsideration to make it suitable in
the true sense of an amended beneficial legislation.
6 References
Primary Sources:
• Quran and Ijma
• Rig Veda
Secondary Sources:
• Legislations - (a) The Hindu Adoptions and Maintenance Act, 1956.
(b) The Hindu Marriage Act, 1955.
(c) The Guardians and Wards Act, 1890.
(d) Indian Divorce Act, 1869.
(e) The Indian Penal Code, 1834.
(f) The Muslim Personal Law (Shariat) Application Act, 1937.
(g) The Juvenile Justice Act, 2000.
(i) The Personal Laws (Amendment) Act, 2010.
(j) The Constitution of India, 1949.
• Journals:
a) Sivaramayya, B. (1962). The Hindu Adoptions and Maintenance
(Amendment) Bill, 1962. Journal of the Indian Law Institute, 4(3), 461-
463.
b) S. Aarthi Anand, & Prema Chandra. (2002). Adoption Laws: Need for
Reform. Economic and Political Weekly, 37(38), 3891-3893.
c) Patel, Sujata, Economic and Political Weekly, “Construction and
Reconstruction of Woman in Gandhi”, February 20, 1988, p. 377.
d) Nandela, Krishnan, “Gandhi on Women’s Empowerment”,
www.mkgandhi.org/articles/women.htm.
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• Books:
a) Diwan, Paras; Muslim Law in Modern India,213 (9th edn., Allahabad
Law Agency, Allahabad, 2000).
b) Mulla, Principles of Hindu Law, Vol.-11, ISBN: 978-81-8038-144-7,
Lexis Nexis Butterworths, New Delhi, Twentieth Ed.
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