Historical perspectives of adoption in India
From the religious purpose of ancient texts to the secular law of 1956 and the Juvenile Justice Acts
In one minute
In ancient Hindu law adoption served a religious aim: a son to perform funeral rites and continue the line. The texts recognised the given son (dattaka) and the made son (kritrima).
The Hindu Adoptions and Maintenance Act, 1956 made adoption a statutory and secular institution. Later the Juvenile Justice Acts opened adoption to people of every religion, and courts set safeguards for inter-country adoption.
Exam focus
- Frequency: No data
- Usually asked as: No data
Legal provision
- Hindu Adoptions and Maintenance Act, 1956, Chapter II (sections 5 to 17): the statutory law of Hindu adoption. Section 30 saves adoptions made before the Act.
- Section 4 of the Act: it ends any old text, rule, interpretation or custom on a matter the Act covers.
- Guardians and Wards Act, 1890: it allows appointment of a guardian, which is not adoption.
- Juvenile Justice (Care and Protection of Children) Act, 2015, Chapter VIII: the secular law of adoption for orphan, abandoned and surrendered children.
Meaning and definition
The historical perspective traces how the purpose and form of adoption changed. It moves from a religious necessity, to codified personal law, to a child-centred secular system.
- AncientReligious purpose: dattaka and kritrima sons in the texts.
- ClassicalDattaka Mimamsa and Dattaka Chandrika set detailed rules.
- 1890Guardians and Wards Act: guardianship only.
- 1956Hindu Adoptions and Maintenance Act: statutory adoption for Hindus.
- 1984 onwardsSafeguards for inter-country adoption; Juvenile Justice Acts for all religions.
Detailed explanation
Step 1: ancient Hindu law
Adoption was mainly religious. A man without a son adopted one so that someone could perform his funeral rites and offerings and continue his line. Manu lists twelve kinds of sons. Two are adoption forms.
- Dattaka: a son given by his parents to another person.
- Kritrima: a son made by the adopter, with the boy's consent. It survived only in a limited way, in the Mithila region.
The dattaka form became the one accepted across most of India.
Step 2: classical treatises and customs
The Dattaka Mimamsa of Nanda Pandita and the Dattaka Chandrika are the two treatises on the dattaka form. The Dattaka Mimamsa was strict. Local custom and school differences also shaped the law, for example on whether a widow could adopt without her husband's authority. In the Ramnad case the Privy Council held that clear proof of usage outweighs the written text.
Step 3: colonial period
Hindu adoption stayed uncodified. Courts applied the old texts and custom. The Guardians and Wards Act, 1890 allowed appointment of a guardian, but it did not make the child a legal child of the guardian. Some communities had no adoption in their personal law.
Step 4: the 1956 Act
The Hindu Adoptions and Maintenance Act, 1956 put Hindu adoption into a statute. It made adoption a secular institution that no longer depends on a religious need for a son. A Hindu may adopt a son or a daughter, and a woman of full capacity may adopt in her own right, subject to the spouse's consent where required.
Example. Before 1956, in some regions, a widow could adopt only if her husband had authorised it. Today a widow with capacity may adopt a child in her own right under section 8, subject to the conditions of sections 10 and 11.
Step 5: inter-country adoption and the Juvenile Justice Acts
In Lakshmi Kant Pandey v. Union of India ((1984) 2 SCC 244) the Supreme Court laid down safeguards for adoption of Indian children by foreigners, to prevent trafficking and put the child's welfare first. The Juvenile Justice Acts of 2000 and 2015 created a secular route for orphan, abandoned and surrendered children. In Shabnam Hashmi v. Union of India (2014) the Supreme Court recognised that the Juvenile Justice Act enables any person to adopt, whatever the personal law says. A 2021 amendment to the 2015 Act gave the District Magistrate the power to issue adoption orders in place of the court.
Don't confuse: religious and secular adoption
| Point | Ancient (religious) | Modern (secular) |
|---|---|---|
| Aim | A son for funeral rites and the line | A family for the child |
| Who is adopted | A son | A son or daughter |
| Source of law | Texts and custom | 1956 Act; Juvenile Justice Act |
| Who can adopt | Mainly a man | A man or a woman with capacity; any religion under the Juvenile Justice Act |
Inside the concept. A childless man in the old law adopts a son to perform his last rites. The aim is religious.
Just outside it. A couple of any religion adopts an abandoned girl through the Juvenile Justice Act route. The aim is the child's family.
Common mistakes
- Saying adoption was always a secular institution. It became so with the 1956 Act.
- Treating guardianship under the 1890 Act as adoption.
- Saying that the classical texts allowed adoption of daughters.
- Mixing up dattaka and kritrima.
Apply it
Problem
A Muslim couple in Hyderabad want to adopt an abandoned girl. Their personal law has no adoption. Can they adopt?
Issue
Is adoption open to persons of every religion?
Rule
The Juvenile Justice Act, 2015 provides a secular route for adoption of orphan, abandoned and surrendered children. Shabnam Hashmi recognised that any person may adopt under it.
Application
The couple can register as prospective parents and follow the regulated procedure.
Conclusion
They can adopt under the Juvenile Justice Act, although the 1956 Act does not apply to them.
Leading case laws
- Collector of Madura v. Moottoo Ramalinga Sathupathy
Facts. A widow in the Ramnad estate adopted a son with the assent of her husband's kinsmen but without his express authority.
Principle. Clear proof of usage outweighs the written text of Hindu law.
Why it matters. It shows that custom shaped the old law of adoption.
- Lakshmi Kant Pandey v. Union of India (1984)
Facts. A letter petition raised the danger to Indian children from adoption by foreigners.
Principle. The Supreme Court laid down detailed guidelines for inter-country adoption, to protect the child.
Why it matters. It led to the later regulatory body, the Central Adoption Resource Authority.
- Shabnam Hashmi v. Union of India (2014)
Facts. The petitioner asked the Court to allow adoption irrespective of religion, caste or creed.
Principle. The Court treated the Juvenile Justice Act as the secular route open to any person.
Why it matters. It confirms the secular character of modern adoption law.
How to write this answer in the exam
5-mark answer
- Ancient purpose: dattaka and kritrima.
- Classical treatises.
- 1956 Act: secular and statutory.
- Juvenile Justice Acts.
10-mark answer
- Ancient religious aim and Manu's sons.
- Treatises and custom; Ramnad.
- Colonial position and the 1890 Act.
- 1956 Act and its changes.
- Lakshmi Kant Pandey and inter-country safeguards.
- Juvenile Justice Acts and Shabnam Hashmi.
Key points to remember
- Ancient aim: funeral rites and continuation of the line.
- Dattaka (given son) was the accepted form; kritrima (made son) survived in Mithila.
- 1890 Act gave guardianship, not adoption.
- 1956 Act made adoption statutory and secular, for sons and daughters.
- Lakshmi Kant Pandey (1984): safeguards for inter-country adoption.
- Juvenile Justice Acts: adoption open to all religions.
Quick self-test
1. What was the main aim of ancient adoption?
A son to perform funeral rites and continue the line.
2. Which Act made Hindu adoption statutory?
The Hindu Adoptions and Maintenance Act, 1956.
3. Which case laid down safeguards for inter-country adoption?
Lakshmi Kant Pandey v. Union of India (1984).