Concept of Adoption

In one minute

Adoption transfers a child from the family of birth to the adoptive family. Under the Hindu Adoptions and Maintenance Act, 1956 it is valid only if the adopter has capacity and right to take, the giver has capacity to give, the child can be adopted and the other conditions are met.

A valid adoption makes the child the child of the adoptive parents for all purposes. It cannot be cancelled. An adoption in breach of the Act is void, and payment for adoption is punishable.

Legal provision

• Section 5: an adoption by or to a Hindu must follow Chapter II. An adoption in breach is void, and a void adoption neither creates new rights in the adoptive family nor destroys rights in the family of birth.
• Section 6: four requisites: capacity and right of the taker, capacity of the giver, capability of the child, and compliance with the other conditions.
• Sections 7 and 8: a Hindu of sound mind and not a minor may take a son or daughter. A married person needs the consent of the spouse unless the spouse has renounced the world, ceased to be a Hindu or been declared of unsound mind.
• Section 9: only the father, mother or guardian can give a child in adoption.
• Section 10: the child must be a Hindu, not already adopted, not married, and under fifteen, unless custom permits otherwise.
• Section 11: other conditions, including no living son, grandson or great-grandson for an adopted son, the twenty-one year age gap, and actual giving and taking.
• Sections 12 to 17: effects, power to dispose of property, adoptive mother, no cancellation, presumption from registered documents, and prohibition of payments.

Meaning and definition

Adoption is the legal act by which a child is taken permanently into another family as its own child. The Act does not define it, but sections 6 to 12 show its elements. The old religious aim of having a son for funeral rites has given way to the aim of giving a child a family.

1. 1. The taker has capacity and right to take (sections 7 and 8).
2. 2. The giver has capacity to give (section 9).
3. 3. The child can be adopted (section 10).
4. 4. The other conditions are met, including giving and taking (section 11).
5. 5. ResultThe adoption is valid and has the effects of section 12. Otherwise it is void under section 5.

Detailed explanation

Step 1: capacity to take (sections 7 and 8)

A male Hindu of sound mind who is not a minor may take a son or daughter in adoption. If he has a living wife, he needs her consent. The exceptions are that she has completely and finally renounced the world, ceased to be a Hindu or been declared of unsound mind by a court. If he has more than one wife, all must consent, unless a ground applies to one. A female Hindu has the same capacity. A married woman needs her husband's consent on the same exceptions.

Step 2: capacity to give (section 9)

Only the father, mother or guardian can give a child. Father and mother have equal rights. Neither may give the child without the other's consent. The exceptions are renunciation of the world, ceasing to be a Hindu, or a declaration of unsound mind. A guardian may give a child only with the previous permission of the court. This applies only where both parents are dead, have renounced the world, have abandoned the child or are of unsound mind. It also applies where the parentage is unknown. The court must be satisfied that the adoption is for the child's welfare and that no payment was made.

Step 3: who may be adopted (section 10)

• The child is a Hindu.
• The child has not already been adopted.
• The child is not married, unless a custom permits.
• The child is under fifteen, unless a custom permits.

Step 4: other conditions (section 11)

• For an adopted son, the adopter must have no Hindu son, son's son or son's son's son living.
• For an adopted daughter, the adopter must have no Hindu daughter or son's daughter living.
• If a man adopts a girl, or a woman adopts a boy, the adopter is at least twenty-one years older.
• The same child may not be adopted by two persons at once.
• The child must actually be given and taken, with intent to transfer the child from the family of birth to the adoptive family. The performance of datta homam is not essential.

Step 5: effects (section 12)

From the date of adoption the child is the child of the adoptive parents for all purposes. All ties in the family of birth are severed and replaced by ties in the adoptive family. Three limits apply. The child cannot marry anyone he or she could not have married in the family of birth. Property that vested in the child before adoption stays vested, with its obligations. The child cannot divest any person of an estate already vested in that person. The adoptive parents keep the power to dispose of their property by transfer or will (section 13).

Step 6: adoptive mother, finality and payments

• Adoptive mother (section 14): where the adopter has a wife living, she is the adoptive mother. With several wives, the senior-most in marriage is the adoptive mother and the others are step-mothers.
• No cancellation (section 15): a valid adoption cannot be cancelled by anyone, and the child cannot renounce the status.
• Registered documents (section 16): a court presumes a registered document recording an adoption, signed by giver and taker, to be a compliant adoption until disproved.
• Payments (section 17): receiving or giving payment for adoption is punishable with imprisonment up to six months, or fine, or both. Prosecution needs the State Government's previous sanction.

Exceptions and special rules

• Custom: custom can permit adoption of a married person or one above fifteen (section 10).
• Pre-1956 adoptions: they are not affected by the Act (section 30).
• Other law: a secular route for orphan, abandoned and surrendered children exists under the Juvenile Justice Act, 2015.

Don't confuse: adoption and guardianship

Point	Adoption	Guardianship
Status of the child	Becomes the child of the adopter for all purposes	Remains the child of the birth parents
Ties of birth	Severed	Continue
Succession	Child inherits from the adopter	No right to inherit from the guardian
Ends	Cannot be cancelled	Ends at majority

Common mistakes

• Forgetting the spouse's consent (sections 7 and 8).
• Saying that datta homam is essential. The proviso to section 11 says it is not.
• Saying that an adopted child can return to the birth family. Section 15 forbids it.
• Thinking that a woman needs her husband's consent in every case. The exceptions apply.
• Forgetting that giving and taking is essential.

Apply it

Problem

Madhu, a Hindu man in Hyderabad, has a living wife and a living son. Without telling his wife, he adopts a boy from a relative by a registered deed. Is the adoption valid?

Issue

Does the adoption meet sections 7 and 11?

Rule

A married man needs his wife's consent. For an adopted son, the adopter must have no Hindu son living. Breach makes the adoption void (section 5).

Application

Madhu did not obtain his wife's consent and he has a living son. The registered deed raises a presumption only that the adoption complied with the Act, until disproved.

Conclusion

The adoption is void. It gives the boy no rights in Madhu's family and takes none from his birth family.

Leading case laws

• Collector of Madura v. Moottoo Ramalinga Sathupathy

  Facts. A widow adopted a son without her late husband's express authority, but with the assent of his kinsmen.

  Principle. Under the law before 1956, the Privy Council held that clear proof of usage outweighs the written text.

  Why it matters. It shows the old law that the 1956 Act replaced, where custom could widen who might adopt.

How to write this answer in the exam

Key points to remember

• Section 5: an adoption in breach of Chapter II is void.
• Section 6: four requisites.
• Spouse's consent is needed (sections 7 and 8), with exceptions.
• Child must be a Hindu, unmarried, under fifteen, not already adopted, unless custom permits.
• Giving and taking is essential; datta homam is not.
• Section 12: adopted child is the child of adopters for all purposes.

Quick self-test

Related topics

• Historical perspectives of adoption in India
• In country and inter- country adoptions
• The Hindu Adoption and Maintenance Act, 1956