Question: What are the essentials of Valid adoption in Hindu Law?


Note: this post is a part of our important question answer series on Family Law. You can read other questions by clicking here.

 

Answer

Adoption, defined as the act of embracing someone else's child and raising it as one's own, holds significant importance in Hindu law. However, the term itself finds no explicit definition in the Hindu Adoption and Maintenance Act of 1956 (HAMA).

To understand the valid requisites for an adoption, sections 6-11 needs to be thoroughly studied. These sections outline the following key points:

 

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1.      The person adopting should have the capacity, and also the right, to take in adoption: sections 7 and 8:

I. Section 7 talks about capacity of Male Hindu to take in adoption son or daughter on fulfilling following conditions:-

a) If he is Hindu;

b) If he is of sound mind;

c) If he is not a minor;

d) In case, he has a wife living, then he shall take the consent of his wife.

e) In case, he has a unsound wife declared by court or if wife has renounced the world or ceased to be Hindu then consent is not necessary.

f) In case, he has more than one wife then consent of all wife is necessary.

II. Section 8 talks about capacity of Female Hindu to take in adoption son or daughter on fulfilling following conditions:-

a) If she is Hindu;

b) If she is of sound mind;

c) If she is not a minor;

d) In case, she has a Husband living, then she shall take the consent of her Husband.

e) In case, she has a unsound Husband declared by a court or if husband has completely & finally renounced the world or ceased to be Hindu, then consent is not necessary.

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2.      The person giving in adoption should also have the capacity to do so: section 9.

I. Only natural father and mother, or the guardian of a child have capacity to give child in adoption. [Sec 9(1)]

II. Father or the mother (if alive) have equal right to give a son or daughter in adoption. [Sec 9(2)]

III. Right to give in adoption cannot be exercised by either father or mother without consent of other, unless one of them has completely & finally renounced the world, or has ceased to be Hindu, or declared unsound mind by a court of competent jurisdiction. [Sec 9(3)]

IV. If father or mother of child are dead, or renounced the world, or abandoned child, or declared unsound mind by court of competent jurisdiction or Parentage of child is unknown, then guardian can give in adoption with permission of the court. [Sec 9(4)].

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3.      The child who is going to be adopted must be in the proper condition for an adoption: section 10:

I. He must be a Hindu,

II. e must be unmarried, customs being an exception.

III. He should not have completed age of 15 years, customs being an exception.

 

4.      Other Conditions (Section 11):

I. If adoption is of a son, then adoptive parents must not have a Hindu son, son’s son or son’s son’s son (Legitimate or Adoption) living at the time of adoption; [Sec 11(1)]

II. If adoption is of a daughter, then adoptive parents must not have a Hindu daughter or son’s daughter (Legitimate or Adoption) living at the time of adoption; []

III. If adoption is by a male and the person adopted is female, then adoptive father is at least 21-year older than the person to be adopted;

IV. If adoption is by a female and the person adopted is male, then adoptive mother is at least 21-year older than the person to be adopted;

V. No child can be adopted twice,

VI. There must be actual given & taken in adoption by the parents or guardian.

In the case of D. R. Patil vs. Shamgonda, it was declared that a lunatic child can also be adopted.

In case of Golak Chandra vs. Kratibas: it was held that any adoption made in derogation to the conditions laid down in Section 11 would be invalid.

Also read: Difference Between Contract of Indemnity and Guarantee (Contract Law)

 

 

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