Concept of Adoption under Hindu Law & Essentials of Valid Adoption

Table of Contents

1)Schools of Hindu Law: –

  1. a) Mitakshara School
  2. b) Dayabhaga School

2)Concept of Adoption under Hindu Law

3)Essentials of valid adoption under Hindu Law

4)Effects of Adoption under Sec 12 of Hindu Adoptions & Maintenance Act,1956

 

Schools of Hindu Law: –

  1. a) Mitakshara School:

The Mitakshara is one of the two main schools of Hindu Law. The literal meaning of the word “Mitakshara” is a concise work. The Mitakshara is a running commentary on the code of Yajnavalkya. The Mitakshara School prevails in all parts of India except West Bengal and Assam. The Mitakshara is subdivided into 4 schools- the Banaras School, the Mithila School, the Dravida School, and Bombay School. The Mitakshara is one of the most influential texts in Hindu Law.

  1. b) Dayabhaga School: –

The Dayabhaga School is the reformist school of Hindu Law. It has been introduced by Jimutavahana. The Dayabhaga School exists in West Bengal and Assam only. It must be noted that the Dayabhaga School is not divided into many sub-schools. Under the Dayabhaga coparcenary, a son has no right of survivorship. Similarly, the sons have no right to survivorship. Under this school, all properties, sell-acquired as well as coparcenary, devolve by succession. A Dayabhaga coparcenary comes into existence for the first time on the death of the father. When the children inherit their deceased father’s property, they constitute a coparcenary. A female can also be coparcenary.

Concept of Adoption under Hindu Law: –

Hinduism has always recognized adoption. The Hindu Adoptions and Maintenance Act, 1956 contains the provisions governing the adoption and payment of maintenance.

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Essentials of Valid Adoption under Hindu Law: –

1)The person who is adopting should have the capacity and also the right to adopt. [S.7, S.8]

S.7- Capacity of a Hindu Male to adopt: –

Any Hindu male of sound mind and who is not a minor can take a son or daughter in adoption. If his wife is alive, he cannot adopt without her consent. However, the consent of his wife is not necessary for the following circumstances:

  • His wife has finally and completely renounced the world; or
  • His wife has ceased to be a Hindu; or
  • His wife has been declared to be of unsound mind by a Court of competent jurisdiction.

It must be noted that the consent of the wife need not be express consent. It can be implied from the facts and circumstances of the case.

S.8-Capacity of a Hindu Female to adopt: –

Any Hindu female of sound mind and who is not a minor can take a son or daughter in adoption. If her husband is alive, he cannot adopt without his consent. However, the consent of her husband is not necessary for the following circumstances: –

1)He has finally and completely renounced the world; or

2)Her husband has ceased to be a Hindu; or

3)He has been declared to be of unsound mind by a Court of competent jurisdiction.

2)The person who is giving in adoption should have the capacity to do so [S.9]

This section states the categories of people who can lawfully give a son or a daughter in adoption. The father, the mother, and the guardian have the right to give in adoption. The father and the mother have a right to give a son or daughter in adoption. The father cannot give in adoption without the consent of the mother.

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The guardian of the child can give the child in adoption with the previous permission of the Court in the following circumstances: –

  • When both the father and mother are dead; or
  • When both the father and mother have completely and finally renounced the world; or
  • When both the father and mother have abandoned the child; or
  • When both the father and mother have been declared to be unsound mind by Court of competent jurisdiction; or
  • When the parentage of the child is not known.

3)The person who is adopted should be capable of being taken into adoption [S.10]

A person is capable of being adopted if he/she fulfills the following conditions: –

  • He/she must be a Hindu;
  • He/she has not been already adopted
  • He/she is not married
  • He/she has not completed the age of 15 years

4)The adoption must take place in compliance with the other conditions mentioned in the Act [S.11]

1) If a son is being adopted under this Act, the adoptive father or mother must not have a Hindu son, son’s son, or son’s son’s son living at the time of adoption.

2) If a daughter is being adopted, the adoptive father or mother must not have a Hindu daughter or son’s daughter living at the time of adoption.

3) If a Hindu male wishes to adopt a female, he should be at least 21 years older than the girl adopted.

4) If a Hindu female wishes to adopt a male, she should be at least 21 years older than the boy adopted.

5) The same child may not be adopted simultaneously by 2 or more persons.

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6) The child who is adopted must be actually given and taken in adoption by the parents/guardian and the adoptive parents with the intention of transferring the child from the family of his birth to the family of his adoption.

Effects of Adoption: –

The primary effect of adoption is that the adopted child is transferred from the natural family to the adoptive family. An adopted child is deemed to be the child of his or her adoptive parents for all the purposes with effect from the date of adoption. From that date, all the ties of the child with his/her natural birth family are severed and replaced by the ties created by adoption in the adoptive family. An adopted child cannot marry any person whom he or she could have married if he or she had continued in the natural family of his or her birth.

Author: Shreya Potdar,
S.N.D.T LAW COLLEGE

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