Adoption under Hindu Law
by Ritvik Kashyap
The Hindu Adoption and Maintenance Act, 19561 deals with the legal
procedure of adoption of children by Hindus and other legal obligations that
need to be followed like maintenance of children, wife etc. This law was
derived from the uncodified Hindu Laws Dharamsastra. This act was enacted as
part of the Hindu Code Bills. This act applies to all the religions except Muslim,
Christian, Parsi and Jew.
Who can adopt a child?
Section 72of the act talks about the capacity of a Hindu male to adopt a child
whereas Section 83of the act talks about the capacity of a Hindu female to
adopt a child.
According to Section 7 of the act, a male can adopt a child if he fulfills the
following conditions:
1. Attained the age of majority
2. Is of Sound Mind
3. Must have a wife alive whose consent is necessary
4. If the person has multiple wives, then the consent of all the wives is
necessary.
According to section 8 of the act, a female can adopt a child if she fulfills the
following conditions:
1. Attained the age of majority
2. Is of sound mind
3. Is either a widow
4. Is divorced
5. Is unmarried in order to adopt.
1
https://tcw.nic.in/Acts/Hindu%20adoption%20and%20Maintenance%20Act.pdf (Last Visited on 2nd August,
2021 at 10:10 AM)
2
https://indiankanoon.org/doc/1698417/ (Last Visited on 2nd August, 2021 at 10:25 AM)
3
https://indiankanoon.org/doc/1494822/ (Last Visited on 2nd August, 2021 at 10:45 AM)
Who can give a child for adoption?
According to section 9 of the act:
1. Only the biological father of the child has the right to give the child for
adoption
2. The consent of the child’s biological mother is also necessary.
A mother can give the child for adoption if:
1. The father is dead
2. The father is of unsound mind
3. Father has renounced the world
4. Father has converted to some other religion
According to section 94, the guardian can also give the child for adoption, but
he must take the permission of the court before doing so. The court will give
the permission if it is satisfied that:
1. The adoption is for the welfare of the child
2. No payment is given to the guardian in exchange for the child.
Necessary Conditions for Adoption
Section 115of the act provides for the necessary conditions for adoption.
Section 11(i) provides the conditions for adoption of a son. According to this
section, if a Hindu male or female wants to adopt a son, then they should not
have a living son, grandson or great-grandson during the time of adoption.
Section 11(ii) provides the conditions for adoption of a daughter. According to
this section, if a Hindu male or female wants to adopt a daughter, then they
should not have a living daughter or granddaughter from their son during the
time of adoption.
Section 11(iii) provides the conditions for adoption of a female child by a male.
According to this section, if a male wants to adopt a female child, then he must
first fulfill the requirements prescribed under Section 7 of the act and
secondly, he should be at least 21 years older than the female child who is to
be adopted.
4
https://indiankanoon.org/doc/754978/ (Last Visited on 2nd August, 2021 at 11:45 AM)
5
https://indiankanoon.org/doc/1340229/ (Last Visited on 2nd August, 2021 at 12:05 PM)
Section 11(iv) provides the conditions for adoption of a male child by a female.
According to this section, if a female wants to adopt a male child, then she
must first fulfill the requirements prescribed under Section 8 of the act and
secondly, she should be at least 21 years older than the male child who is to be
adopted.
Section 11(v) of the act states that the same child cannot be adopted by
multiple people at the same time.
Effects of Adoption
Section 126of the acts defines the effects of adoption. After the adoption, the
child will be considered as the child of the adoptive parents. The adoptive
parents will have all the parental obligations and rights. The child will also have
the rights and obligations of a son/daughter. The adoptive child needs to
follow certain rules that he/she cannot marry anyone from their birth family,
the rule of ‘sapinda relation’ shall be applied which have been defined under
the Hindu Marriage Act, 1955. If the adopted child has any property before the
adoption, then he/she shall still have the possession of that property. If some
obligations are attached to the property, then he/she shall be liable for those
obligations, even if he/she has to maintain any member of his/her biological
family.
According to section 137of the act, the adoptive parents have the right to
dispose of their properties by way of gift or will, the adoption doesn’t stop
them.
Section 148of the act states, if a bachelor or male widower adopts a child and
after the adoption, he marries someone, then his wife will be called step-
mother of that child. Similarly, if an unmarried woman or a widow adopts a
child and after the adoption, she marries someone, then her husband will be
called step-father of that child.
If a person has been validly adopted, then there is now way that they can
cancel the adoption. Section 159 of the act states, neither the parents can
cancel the valid adoption nor the child has any right to renounce the adoption.
6
https://indiankanoon.org/doc/1943999/ (Last Visited on 2nd August, 2021 at 1:15 PM)
7
https://indiankanoon.org/doc/1975723/#:~:text=Section%2013%20in%20The%20Hindu%20Adoptions%20and
%20Maintenance%20Act%2C%201956&text=13.,inter%20vivos%20or%20by%20will (Last Visited on 2nd
August, 2021 at 2:05 PM)
8
https://indiankanoon.org/doc/183623263/ (Last Visited on 2nd August, 2021 at 2:45 PM)
9
https://indiankanoon.org/doc/1202482/ (Last Visited on 2nd August, 2021 at 3:45 PM)
Section 1710of the act, states that no payment should be made or received
during the adoption. If any person is caught making or receiving the payment
in any form, then he shall be liable for imprisonment for up to 6 months and/or
fine.
Conclusion
The Hindu Adoption and Maintenance Act, 1956 contains many provisions
which deal with necessary conditions which need to be fulfilled for a valid
adoption. However, certain provisions of the act need to be improved. As there
is no provision where the married woman can take an adopted child under her
own name even after obtaining the consent of her husband.
10
https://indiankanoon.org/doc/239702/ (Last Visited on 2nd August, 2021 at 4:15 PM)
