Effect of Adoption under Section 12: Hindu Adoption and Maintenance Act, 1956
Prior to codification of Hindu law, the Hindus were governed under Dharamashastra, Vedas, Manusmriti, Shrutis which vary from State to State, family to family. Everyone has their own beliefs and follow different customs and usages which were not uniform among whole India. So, in order to simplify law for all Hindus and to make sure that it is tune with the demand of time and as per existing customs, practices, societal norms and thinking, a set of rules and regulations were made under the leadership of Pandit Jawaharlal Nehru to codify and standardize the current Hindu Legal tradition. A set of legislations were enacted as part of Hindu Code Bills which includes Hindu Marriage Act (1955), the Hindu Succession Act (1956), and the Hindu Minority and Guardianship Act (1956) and The Hindu Adoptions and Maintenance Act (HAMA), 1956.
The main purpose of HAMA is to amend and codify law relating to ADOPTION and MAINTAINENCE among Hindus. It extends to whole India except the State of Jammu & Kashmir.
WHAT IS ADOPTION?
Though in the entire Hindu law, the term “Adoption” has not been defined but in a broad sense it can be understood as “the action or fact of legally taking another’s child and bringing it up as one’s own” or “taking someone else’s son and raising him like their own”. However, as per HAMA, 1956 the adoption is confined to son only rather replaced by term ‘child’ which includes both son and daughter. On adoption, all the relationship ties of an adoptee (i.e. who is being adopted) got served with his natural family and got replaced by his adoptive family.
It can be said that through this Act, State has shown its concern towards the children who are either abandoned by their natural family or got unfortunately orphaned and tried to promote the concept of adoption in an orthodox society. It will not only help in controlling population to some extent but also a opens an option for people who cannot become parents due to any reason.
APPLICABILITY: SECTION 2
HAMA is applicable on all person who are-
1. Hindu by religion in any form including Virashiva (follower of Shiv), Lingayat or a follower of Brahmo, Prarthana of Arya Samaj.
2. Buddhist, Jain or Sikh by religion
3. To any person who is NOT a Muslim, Parsi Jew or Christian by religion until and unless it is proved that such person is governed under Hindu law or under any custom or usage which forms part of Hindu law.
4. any person who is convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion
REQUIREMENTS OF VALID ADOPTION-
There are four essentials to make an adoption valid, those are as follows-
1. The person who is adopting i.e. adoptive parent/s must have Capacity and right to adopt.
2. The person/s giving in adoption must have the capacity to give in adoption.
3. The person who is being adopted must be capable of being given in adoption.
4. Adoption should be made in compliance of the provisions of this act.
Devgonda Raygonda Patil v. Shamgonda Raygonda Patil AIR 1992 Bom 189, – Sec. 6 does not bar a lunatic person from being adopted.
M. Gurudas V. Rasaranjan AIR 2006 SC 3275,- Court Held, to prove a valid adoption it must be necessary to bring on record that there had been an actual giving and taking ceremony.
PERSON HAVING CAPACITY TO ADOPT-
1. Male – Section- 7 –
1.1 Any male Hindu being married or single only becomes capable of adopting a son or daughter if he is of sound mind and major.
1.2 If the Male Hindu is married then the consent of his wife is important at the adoption but such consent is not required in three situations –
1.2.1 if the wife has completely and finally renounced the world,
1.2.2 if the wife has ceased to be a Hindu (conversion to other religion to whom this Act, doesn’t apply) and;
1.2.3 if the wife has been declared of unsound mind by a Court of competent jurisdiction.
1.3 If a male Hindu adopts a female, then the minimum age gap between them must be of Twenty-one years.
2. Female- Section 8-
2.1 Any female Hindu being married or single only becomes capable of adopting a son or daughter if she is of sound mind and major.
2.2 If the female Hindu is married then the consent of her husband is important for adopting a child until and unless her husband has renounced the world, or ceased to be a Hindu or has been declared of unsound mind by a Court of competent jurisdiction. Prior to 2010 Amendment, only an unmarried or if married, whose marriage has been dissolved or whose husband is dead was capable to adopt a child.
2.3 If a female Hindu adopts a male, then the adoptive mother must be at least twenty-one years older than the male person to be adopted.
PERSONS CAPABLE OF GIVING IN ADOPTION- SECTION 9
1. Father or mother (these expressions does NOT include “adoptive father” and “adoptive mother”)
2. Guardian, means person who take care of person/child or both of person/child and the property. The term guardian includes a “guardian appointed child’s father or mother will” and “guardian appointed or declared by Court”
Both father and mother have equal rights to give a son or daughter in adoption but if either of them wishes to do so then, the consent of other is required unless one of them has renounced the world or ceased to be Hindu or has been declared of unsound mind by a court of competent jurisdiction whereas a guardian may give the child in adoption only with prior permission of Court when the parents (both father and mother) of child are dead or renounced the world or abandoned the child or are declared of unsound mind by Court.
Court before granting permission to give in adoption, shall satisfy itself that the adoption is made for welfare of child and not otherwise and make sure that the applicant (guardian) has not received or agreed to receive any payment as consideration for giving the child in adoption. In contravention, the person who receives or agrees to receive and the person who agree to give or give any consideration then that person/s shall be punishable under Section 17 of HAMA, 1956, with imprisonment which may extend to six months, or with fine or with both.
WHO MAY BE ADOPTED- SECTION 10
1. Adoptee must be Hindu
2. Adoptee can either be male or female
3. Adoptee must not have been already adopted.
4. Adoptee must be unmarried. However, married person can be adopted if custom or usages applicable to parties permits them.
5. Adoptee must not have completed the age of fifteen years. However a person of fifteen or more can be adopted if custom or usage applicable on parties permits them.
LEGAL EFFECTS OF ADOPTION – SECTION 12
When a child is being given in adoption then that will mean that from the date of effect of adoption all his relationship and ties with his natural family are have been uprooted and transplanted in new (adoptive) family.
In Natural Family- For religious, secular and civil purposes all the ties of child from natural family ceases.
The only two ties which remains with him are-
1. That he cannot marry any person from his natural family to whom he cannot marry if he was not given in adoption or prior to adoption.
2. If the child is inherited in any property of his natural family prior to adoption, then he will continue to inherit/vest in that property even after adoption.
In Adoptive Family- After adoption, the adopted child is deemed to be the child of adoptive parent/s for all purposes like as of natural-born child.
In case of Namdeo Venkat Ghadge v. Chandrakant Ganpat Ghadge, 2003 (4) ILD 6, Court held, it is evident from main part of section 12 that the adopted child shall deemed to be the child of his or her adopted father or mother for all purposes with effect from date of adoption.
The adoptee will enjoy all rights, privileges guardianship, inheritance, maintenance and obligations like as of natural born child in the adoptive family. The child will be related to all the relatives of father’s and mother’s side. If there are two children in the adoptive family i.e. one is the adoptive child and second is the natural child both will inherit equally. The adoptive child can claim maintenance from his adoptive parents and similarly, the adoptive child will be liable to maintain his adoptive parents.
In case of Kishore v. Bhupendra Nanda, 1966 Cal 181, Court held, that the adopted child’s right to maintenance ceases once he attained the age of majority.
Divesting of property- sec 12(c) HAMA, 1956 clearly states that “adopted child SHALL not divest any person of any estate which vested in him or her before the adoption”. This means that if any person of adoptive family is vested with some property of adoptive family prior to adoption of child, then that adoptive child is not entitled to divest the former from that property.
For instance, A died leaving his widow B and two daughters X and Y. After A’s death, B, X and Y will be vested in the property of A with equal share of 1/3. After that, B adopts Z, now Z is not entitled to divest the share of B, X or Y.
In case of Namdeo Venkat Ghadge v. Chandrakant Ganpat Ghadge, 2003 (4) ILD 6, Court held, Proviso (c) to Section 12 in clear terms states that the adopted child shall not divest any person of any estate, which vested in him or her before the adoption.
The same opinion of Court was held in the case of Kisan Baburao Memne v. Suresh Sadu Memane, AIR 1996 Bom 5.
In case of Sawan Ram v. Kalawati 1967 SC 1961, since the theory of relating back has been abolished, but the Court is of the view that the deceased husband of widow is the adoptive father of adopted son of his widow wife through which the adoptee is enabled to divest the property vested in plaintiff.
Rights of Adoptive Parents
Under Section 13 of HAMA, 1956 the Adoptive parents are not restrained from disposing of their property from the fact of adoption. They are free to dispose off their property by way of transfer, inter vivos (transfer by gift) or by will unless any agreement to the contrary is not made.
In case of Chiranjilal Srilal Goenka v. Jasjit Singh, AIR 2001 SC 266, it was held that right of adoptive parents to dispose their property is subject to agreement made in contrary entered between adoptive parents and natural parents on behalf of adoptee.
Can a valid adoption be cancelled?
The answer to the above mentioned question is in negative as per Section 15 of HAMA, 1956. A valid adoption cannot be cancelled at the instance of adoptive father or adoptive mother or any other person and similarly, the adopted child cannot cancel the legal and valid adoption by “renouncing his or her status of adopted child” and is restrained from going back to his natural family or family of birth.
Void Adoption- Section 5
After the commencement of this Act, every adoption made by a Hindu or to a Hindu has to be made in compliance of the provisions of this Act, if made in Contravention it will be void adoption.
A void adoption shall neither create any right of adoptee in the adoptive family nor destroys the right of any person in the family of his or her natural person.
In Sri Chandra Nath Sadhu & ors v. The State of West Bengal & ors, I (2004) DMC 359, the High Court of Calcutta stated it is important for the adoption to be valid to have any effect at all., that a void adoption will not create any rights in the adoptive family for anyone that could have been obtained from a valid adoption, nor any existing rights will end in the child’s biological family.
Author: kashish gupta,
Invertis University, 4th year