Final Hinu Law Project On Adoption

HINDU LAW
Submitted By,
Shubham Patel
Neha Tiwari
Under The Guidance Of,

Pankaj Umberkar
Subject,
Role of Adoption under Hindu Law
MATS LAW SCHOOL

III- SEMESTER
YEAR-2013-2014
ACKNOWLEDGEMENT
I am deeply indebted to Sir Pankaj Umberkar, Asst. Professor, MATS Law School, MATS
University, Raipur for constantly guiding and encouraging us to undertake and complete this
project. We are thankful for his patient disposition.
I am also thankful to Dr G.P. Tripathi, Director, and all other staff of the MATS Law School,
MATS University, Raipur for giving me opportunity and facility to complete this work.
Shubham Patel
Neha Tiwari
3rd Semester, B.B.A-LLB
Table Of Contents
Introduction
Historical Perspective
Important features
Requisites of a Valid Adoption
Capacity of a male Hindu to take in adoption
Capacity of a female Hindu to take in adoption
Persons capacity of giving in adoption
Person who may be adopted
Other condition for adoption
Effect of adoption
Right of adoptive parents to dispose of their properties
Determination of adoptive mother in certain cases
Valid adoption not to be cancelled
Presumption as to registered documents relating to adoption
Prohibition of certain payments
Introduction
3
Historical Perspective
Since the Vedic period, Hindu society has given a lot of importance to male child. It was said that
a male child saves the father from 'put' hell; hence the male child is called Putra. This was the
main reason which has prompted the son-less to adopt a male child.
Manusmriti says that when the natural father and mother give wholeheartedly their son with the
offering of water to another person in distress, it is called Dattak.
Vashistha has given several guidelines on dattak. It says that the father and the mother of an
offspring have complete right on selling or giving the offspring to another. A Dattak cannot be
taken from the person who has only one son. A child whose kinsmen are not known cannot be
taken as dattak. A woman had no right to adopt.
Sounaka has said metaphorically that a Dattak son must be a reflection of the father, which
means that a Dattak can only be taken from a mother whom the person could have married
before her marriage. Thus, one could not adopt daughter's son, sister's son, or mother's sister's
son.
Thus, the practice of Dattak in the old days had been practiced mostly for religious reasons. This
is also evident from the fact that only a male child was to be adopted because only he can
perform the religious duties for the father. Slowly, the secular reasons such as continuance of the
family name also became important. More recently, ulterior motives such as changing the course
of inheritance of property has also prompted people to adopt.
Based on the above three authors and many other customs, the Dattak ceremony primarily
involved a Dattakgrahan, i.e. the actual giving and taking of the child and a Dattakhomam.
However, there were several controversies because there was no one standard rule. So, in 1956,
the Hindu Adoption and Maintenance Act was enforced which standardized as well as
modernized the rules and process for adoption.
Adoption
4
According to Section 2 (d) of Guidelines Governing the Adoption of Children, 20111

Adoption means the process through which the adopted child is permanently separated from
his biological parents and becomes the legitimate child of his adoptive parents with all the rights,
privileges and responsibilities that are attached to the relationship;
Requisites for Adoption

Section 6 of the HAM Act 1956 lays down the following 4 requirements
1. The person who is adopting must have the capacity and the right to adopt.
2. The person who is giving the child in adoption must have the capacity to give.
3. The person who is being adopt must be eligible to be adopted.
4. The adoption must satisfy all the rules given in this act.
Section 7 describes which Hindu Male is capable of adoption:

1. Any Hindu male who has attained the age of majority and who is of sound mind can
adopt.
2. If he is married, he must take consent from his wife. If he has more than one wives,
consent from all the wives is required. In the case of Bhooloram vs Ramlal AIR 1989,
MP HC has held that if the consent of the wife living with the husband is obtained but
the consent of the wife living away has not been obtained then the adoption is void.
3. A wife's consent is not required is the wife has completely renounced(withdraw ,decline)
the world and has become a Sanyasin, has changed her religion and has ceased to be a
Hindu, or has been proven by a competent judge to be mentally unsound.
Section 8 describes which Hindu Female is capable of adoption:

1. She must be a major and must not be mentally unsound.
1 Notification Dated 24 june 2011
2. She is unmarried, is a widow or a divorcee. In the case of Vijayalakshamma vs B T

Shankar, AIR 2001, SC has held that consent from a widow is not required because a
widow can adopt on her own right.
3. A married woman is allowed to adopt only if the husband has renounced the world
completely, or is of unsound mind, or has ceased to be a Hindu.
This is a big change from pre-act situation. Earlier, a woman had no right to adopt.
Section 9 describes who has the capacity to give a child in adoption

1. Only the natural father has the right to give a legitimate child in adoption. However, the
father must get consent from the natural mother unless the mother has been declared by a
competent court to be of unsound mind, has renounced the world, or has ceased to be a
Hindu.
2. If the father is mentally unsound, or has renounced the world, or has ceased to be a
Hindu, or is dead, the mother can give the child in adoption.
3. Only the mother of an legitimate child has the right to give the child in adoption.
However, she cannot adopt the child herself because a giver cannot be taker at the same
time.
4. If both the natural mother and father are dead, or have renounced the world, or have
abandoned the child, or are of unsound mind, a guardian, testamentary or court appointed
can give a child in adoption, including to the guardian himself, upon prior permission of
the court.
5. While granting permission, the court must see the welfare of the child and the wishes of
the child depending on the child's age.
Section 10 describes who is capable of being adopted

1. The child must be a Hindu.
2. The child must not have already been adopted.
3. The child must be unmarried. However, if a custom to the contrary exists, such an
adoption may take place.
6
4. The child must be less than 15 yrs of age. However, if a custom to the contrary exists,
such an adoption may take place.
.
Section 11 describes some other conditions for a valid adoption

1. If a male child is being adopted, the person who is adopting must not already have a son,
son's son, or son's son, whether natural or adopted.
2. If a female child is being adopted, the person who is adopting must not already have a
daughter or son's daughter living at the time of adoption.
3. If a male is adopting a female child, then their age difference must be greater than 21 yrs.
4. If a female is adopting a male child, then their age difference must be greater than 21 yrs.
5. Two persons cannot adopt the same child.
6. The actual giving and taking of the child must happen. Only mere intention of giving and
taking is not enough. The child must be transfered from the home of the natural parents,
or in case of orphans, from the place he grew up, to the adoptive parent's home. The ritual
or ceremony of Dattak homam is not necessary.
Effects of Adoption
Section 12- says that an adopted child is deemed to be a natural child of his adopted parents
for all purposes. All relations with the natural parents and family are severed and new
relationships with the adopted parents are established. Only exception is that the adopted child
cannot marry anybody from his natural family.
It further says that the adopted child is not divested of his property that has vested in him before
adoption and that an adopted child cannot divest anybody of his vested property after adoption.
An important change from the old law here is that the concept of "relating back", which means
that when a widow adopts a child the adoption is7considered to be done from the date the
husband died, has been abolished. However, in the case of Sawan Ram vsKalawati AIR 1967,
SC has held that the deceased father is sill considered the adoptive father.
Section 13- says that subject to any ante-adoption agreement, the adoptive parents do not lose
their right of alienation of their property after adoption.
Section 14- describes the position of mothers in certain situations:

1. When a male adopts with the consent of the wife, the wife becomes the adoptive mother.
2. If a single adoptive father later marries, the wife of the adoptive father becomes the step
mother.
3. If a single adoptive mother later marries, the husband of the adoptive mother becomes
the step father.
4. If an adoptive father has multiple wives, the senior most by marriage, not by age, wife
becomes the adoptive mother and other wives become the step mothers.
Section 15- says that a valid adoption cannot be canceled either by the adoptive father or
mother. Neither can the adopted child renounce the adoptive parents and go back to the family of
his birth.
Section 16- says that whenever any document made under any law in force at the time,
purporting to record an adoption, and has been signed by the giver and taker of the child, is
produced before the court, the court shall presume that the adoption has been made in accordance
with the provisions of this act unless and until it is disproved.
In the case of Pentakota Satyanarayana vs Pentakota Seetharatham AIR 2005 SC, the
plaintiff brought a suit for partition and possession. However, he failed to provide any proof of
the adoption. His adoptive father was estranged 8
from adoptive mother and the adoptive mother
had asked for maintenance for herself but not for the adoptive son. There was no document or
agreement. The plaintiff could not provide any essential details such as date of adoption or fixing
of Muhurtam etc. Thus, SC held that there was no adoption and the alleged adopted son had no
right in the property.
Section 17- (1) forbids receipt of any payment as a consideration for the adoption
(2) If any such payment is taken, he shall be punishable by 6 months imprisonment and/or a
fine or both.
(3) No prosecution under this section shall be instituted without the previous sanction of the
state government or an officer authorized by the state government in this behalf.
Bibiography
Website:
www.Google .com
Books Referred:
Hindu laws BARE ACT
Hindu laws Paras diwan
10

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HINDU LAW

Under The Guidance Of,

MATS LAW SCHOOL

According to Section 2 (d) of Guidelines Governing the Adoption of Children, 20111

Requisites for Adoption

Section 7 describes which Hindu Male is capable of adoption:

Section 8 describes which Hindu Female is capable of adoption:

1 Notification Dated 24 june 2011

2. She is unmarried, is a widow or a divorcee. In the case of Vijayalakshamma vs B T

Section 9 describes who has the capacity to give a child in adoption

Section 10 describes who is capable of being adopted

Section 11 describes some other conditions for a valid adoption

Section 14- describes the position of mothers in certain situations:

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