ESSENTIALS OF A VALID ADOPTION UNDER HINDU LAW
As the population in India rises, the one aspect that is blatantly ignored is the pitiful plight of the children who are either abandoned by their parents or have been unfortunately orphaned.
It is crucial to note that the State has made ample provisions in order to promote adoption however, the safety of the children being adopted must also be ensured which is why the State has to balance the needs of the children as well as promote adoption in an otherwise orthodox society.
When looking into the reasons why people usually choose to adopt, the following reasons were popularly mentioned:
- To continue the family lineage if the parents are unable to conceive a child of their own.
- To assure people of care in their old age/retirement
- To avoid loneliness and lack of family
- To fulfil religious or moral beliefs
In order to do this, there are certain prerequisites that the parents who are interested in adopting a child must necessarily fulfil before the child is placed under their care and these conditions have been summarised under the Hindu Maintenance and Adoption Act,1956. The Hindu Adoption and Maintenance Act of 1956 (referred to as the HAMA, 1956) was enacted in the year 1956 and came into effect on 21st December, 1956. This act governs adoption under the Hindu Law. These essentials include the following as under Section 6 of the Act:
- The person adopting should have the capacity, and also the right, to take in adoption.
- The person giving in adoption should also have the capacity to do so.
- The child who is going to be adopted must be in the proper condition for an adoption
- The adoption must be in compliance with the other laws that govern the same
- For an adoption to be valid, it needs to be proved that there was an official acceptance ceremony wherein the child was welcomed into the family as one of their own
The HAMA defines the ‘Capacity to Adopt’ under Section 7 wherein it is stated that if a male wishes to adopt a child, he must be:
- Of legal Age (i.e he must be a major)
- Of sound mind (i.e he must not have any mental illnesses)
- Single or if he is married and his wife is alive, he must obtain her consent before he adopts a child unless the wife has renounced the world or has been declared to be of unsound mind by a competent authority
The HAMA also lays down the conditions for a female wishing to adopt a child under Section 8 and they are as follows:
- She must be of legal age
- She must be of sound mind
- She must be unmarried or if she is married, the husband must give his full consent to adopting a child unless he is of unsound mind, has renounced the Hindu faith and the world or has dissolved the marriage
Section 9 of the HAMA describes who can give up a child for adoption.
- Only the parents or the legal guardian of the child may give him/her up for adoption
- If the father is alive, then he alone has the right to give in adoption, provided he has the consent of his living wife, unless she has ceased to be a Hindu, h as been declared to be of an unsound mind by a competent Court or has renounced the world.
- Similarly, the mother can give the child up for adoption if the father of the child is no more, has ceased to be a Hindu, has renounced the world or has been declared as a person of unsound mind by a competent Court.
- If both the parents of the child are dead or the parentage of the child is unknown or if the child was abandoned, then the guardian of the child may give them up for adoption with the prior permission of the Court, provided that the Court is satisfied that such an adoption is for the child’s welfare.
- Before giving the parents to adopt the child, the Court also has to ascertain that neither the party giving the child up for adoption nor the parents who are adopting the child are being bribed into it or are receiving any sort of remuneration for the adoption of the child and that both parties are going through the process in good faith and for the benefit of the child.
- It is to be noted that an adoptive mother or father cannot adopt more than one child of the same sex.
- Two or more parents cannot adopt the same child as there mandatorily must be a giving/taking ceremony which signifies the transfer of the child between two families.
- If a male chooses to adopt a boy, he must be at least 21 years older than the boy he wishes to adopt and similarly, if a female chooses to adopt a daughter or a girl child, she must be at least 21 years older than the girl she chooses to adopt.
In Smt. Prafulla Bala Mukherjee v. Satish Chandra Mukherjee AIR 1988 Cal. 86. It was held that for an adoption to be valid in nature, not only the person adopting but also the person giving the child up for adoption must be lawfully capable of doing so and that all the prerequisites as under Section 5 of the HAMA are fulfilled before the adoption takes place.
In Krishna Chandra Sahu v. Pradipta Das, the Court held that the consent of the wife is absolutely mandatory when it comes to adoption especially of the wife is of sound mind and has not renounced her faith or the world.
In Mandakini v. Adinath Dey, the Court reiterated and held that any Hindu male that wishes to adopt a child must be of sound mind.
In Gopi v. Madan, the Court held that no adjudication of insanity is necessary and that any condition of insanity including idiocy, lunacy and epilepsy comes under the ambit of an unsound mind.
Author: Keerthana R,
Christ University 2nd Year, Law Student