Adoption is a concept where a child is transferred from the family in which he was born to another family, whereby the son acquires new rights, duties and status and ends all ties with the old family. Under uncodified old Hindu law, the doctrine of retrogression prevailed, whereby a son adopted by a widow relates back to the widow’s deceased husband and the son is entitled to the property of his deceased adoptive father. But after the enactment of the Hindu Adoptions and Maintenance Act, 1956, this doctrine was abolished in accordance with the provisions of the said Act.
Adoption is a doctrine that transfers a child from the family in which it is born to another family, thereby acquiring new rights, duties and status and ending all ties with the old family. According to ancient Hindu law, the main reason for adopting a son was to fulfill religious duties. In early societies, the need to have a son was prevalent for the continuation of the family, the father’s name, the lineage and for the performance of various sacrifices, ceremonies and rituals.
Thus, Adoption confers rights on the child with effect from the date of adoption. This position was same in the old law also. But under the old law, when the adoption was made by a widow, the adoption would come into force from the date of the death of her husband. Thus, the doctrine gives retrospective effect to adoption by a widow under the Old Law.
In Other words, all the rights of the adoptee who is the person taking the son in adoption related back from the date of death of the adoptive father who is the widow’s husband. The reason was the woman could not adopt on her own without the consent or authority of her husband or his sapindas. Therefore, the adoption is deemed to have taken place on the date of the death of her husband.
A Hindu widow has the right to adopt a son or daughter under the Hindu Adoptions and Maintenance Act, 1956. The doctrine of relationship under the old Hindu law states that if a Hindu widow adopts a son after the death of her husband, then the adopted son will be considered as adopted after the death of the husband. The theory is against the rule that a property once transferred cannot be sold.
In Sawan Ram v. Kalawati AIR 1967 SC 1761, a Hindu male died in 1948 leaving behind his widow without children. The widow took the properties of her deceased husband as a limited owner. In 1954, the widow made a gift of some land from the husband’s property to her grand-niece, which was challenged by her husband’s collateral. The collateral sued for possession of Land. The trial court granted the declaration in favour of the collateral. The grand-niece preferred an appeal before the supreme court. While the appeal was pending, the widow adopted a son in 1959 and died in the same year. The Supreme court held that the son adopted by the widow was deemed to be the son of her deceased husband and the adoption would be effective from the date of the death of her husband that is from 1948. Therefore, the adopted son was entitled to inherit the property of her deceased husband.
The principle applied in the instant case was, “It is well-recognized that after a female is married, she belongs to the family of her husband. The Child adopted must also, therefore belong to the same family. On adoption by a Hindu Female, who has been married, the adopted son will, in effect, be the adopted son of her husband also.”
The above view laid down in Sawan Ram v. Kalawati AIR 1967 SC 1761 was followed by the Supreme Court in Sitabai v. Ramachandran AIR 1970 SC 345.
In early societies, the need to have a son for family continuity, father’s name, lineage and various sacrifices, rites and rituals prevailed. Through their texts, earlier writers like Manu, Veda, Yajnavalkya etc., were described and clarified the need to have a child. The concept of having a second son does not occur in Vedic literature, however the concept of adoption appears later in Sanskrit literature. Manu defined an adopted son as a son equal in caste and lovingly inclined to whom his mother or father gives with water in misfortune, is called to be known as Dattaka son.
The Statutory Adoption Act codified and amended the old Adoption Act. Now all Hindu adoptions will be done in accordance with the provisions of the Act after they have a uniform legal right to adopt. Various changes have been made under the Adoption Act, for example earlier women were not allowed to adopt a child but now they can.
The Datta-Homam ceremony is not necessary for the adoption of a child which was necessary earlier. Registration and presumption provisions are necessary. Now it is not essential that the adopter and the adoptee must be of the same caste, but the only requirement that must be fulfilled is that both must be Hindus or governed by Hindu law. A divorced woman, widow, unmarried woman or wife can legally adopt with the consent of her husband.
When adopting a child of the opposite sex, there must be a twenty-one year gap between the adopter and the adoptee. Adoption can only be legally carried out if the adoptee is under the age of fifteen, unless there is a tradition that requires such an adoption.
A married Hindu man could only adopt with his wife’s permission. The law also brought some changes to the widow’s right to adopt a child. One of the important changes in the law is that the doctrine of retroactive relationship has been abolished and now an adopted son or daughter comes into being only from the date of adoption.
In ancient Hindu texts there are twelve different kinds of sons which are: Apavidha, Aurasa (legitimate son), Dattaka (Adopted son), Gudhaja, Kanina, Krita, Kshetraja, Purika Putra, Punarbhava, Sahodhaja, Svayamdatta. It is also well known that there are three kinds of sons – legitimate, illegitimate and adopted sons. Adoption is the doctrine whereby a child is transferred from the family in which he was born to another family, whereby the son acquires new rights, duties and status and ends all ties with the old family. According to old Hindu law, the main motive for adopting a son was for the fulfillment of religious duties.
The Doctrine of Relation Black has been abolished by Section 12 of the Hindu Adoptions and Maintenance Act of 1956 and hence, it is no more a law at present.
Author: Ashvath Neelakandan,
Third Year Law Student at Chettinad School of Law
