Marriage has always been regarded as a sacrament under the Hindu law. It is considered to be a prestigious relationship between human beings. Earlier one of the sole objectives of a marriage was to give an heir to the family so that the family does not extinct and its lineage continues to further generations. Thus, marriage gives rise to another vital relationship in the life of human beings that is parentage. In the earlier times, having a son was considered to be very important as sons were supposed to carry on the next generations of the family. Therefore, Families supported the view of having a male child than a female. But what if a married couple did not have a son? What if they had a female child? How could the family’s future generations be carried on? Will the family extinct?
That is why the concept of adoption was introduced. In simple terms adoption means taking someone else’s child as your own child. In Hindu law adoption is recognised as a legal act. In the current scenario, people have started adopting children not for their own benefit of having child but also to show support to children who are orphans or whose parents have abandoned them.
In India the Hindu Adoptions and Maintenance Act, 1956 (HAMA) deals with the matter of adoption of children. It provides all provisions regarding adoption. Adoption is the process by which a person takes the parental responsibility of someone else’s child, in a legally recognised manner. It can occur in varying ways. A person can adopt their stepchild or relative as per the conditions of the HAMA, 1956.
CONDITIONS FOR A VALID ADOPTION
Section 6 of HAMA, generally provides that there are four main conditions for considering an adoption to be valid. These are regarding the capability of the people who will be involved in the process of adoption.
- An adoption will not be valid until the person who is taking the child in adoption is capable of taking in adoption and has the right to do the same.
- A person who is giving a child in adoption shall have the capacity of giving in adoption.
- The person who is to be taken into adoption shall fulfil the conditions required for a valid adoption and be capable of being taken into adoption.
- The last condition mentioned in section 6 (iv) is that all other conditions specified in this whole chapter should be followed for a valid adoption.
CAPACITY OF THE ADOPTER
The person adopting the child can be both male and female. The conditions for both male and female are separately given in section 7and 8. Earlier adoption did not have a good status in the society but in the present world adoption is also considered as equal as naturally born child. Both male and female have different capacities to adopt a child in different cases.
Males usually have a wider capacity to adopt a child. A male Hindu can adopt a child if he satisfies the conditions given under section 7. These conditions are specified as follows:
- He should be of sound mind
- He should be above 18 years of age
Section 7 says that a Hindu Male can adopt a child. He may be a bachelor, divorcee, widower, or a married person but he should not be less than eighteen years of age. There is no bar on the maximum age of the person who is adopting the child. But if a male wants to adopt a female child, then he shall be twenty-one years older than her in age. If a male is married then the consent of the wife, is an essential condition. An adoption made without the consent of wife shall be void. The consent shall be free. The consent of the wife maybe expressed or implied A husband does not require a consent of a wife for adoption only in three exceptional cases. These are, when the wife has completely or finally renounced the world, she has ceased to be a Hindu or she has been declared of unsound mind by a competent court.
In the old Hindu law women did not have any authority or capacity to adopt a child. Even the widow could not adopt the child in her own name. She had to adopt the child in the name of her deceased husband. But after the modern Hindu Law has been enacted, females have got some capacity to adopt children in some cases. An unmarried female is now capable of adopting a child if she is of sound mind and above 18 years of age. Likewise in the case of males, if the female wants to adopt a child from the opposite gender i.e., a male child than she has to be at least 21 years elder to him.
Also, there are some special conditions that are mentioned in the provision to section 8 of the act which allow a married women to adopt a child without the consent of the husband. When the husband renounces the world, or he becomes insane or unsound mind, or he is no more a Hindu, then the wife may adopt without the consent of the husband.
When a female gets divorce from her husband, she has the capacity to adopt a child of her own. It does not require the consent of the divorced husband. A widow can also adopt children of her choice, given that she shall not have children of her own. In case of more than one wife of a husband, it is not necessary that a widow has to obtain the consent of all other wives of her deceased husband. She is capable of adopting a child of her own. She would be the only legal mother of that child who is adopted.
CAPACITY OF THE ADOPTEE
According to section 9 of the act there are only three people who can give a child into adoption. it mainly includes the father, mother and the guardian of the child. The person must be of sound mind. Both father and mother have equal rights for giving their child in adoption but they cannot do so without the consent of each other. The consent of both of them is an essential. However, the three exceptional conditions given in article 7 and 8 will apply in the same manner if one of the parents wants to give the child in adoption without the consent of the other spouse. Here, father and mother will include only the natural parents. Mother can give her illegitimate child in adoption without the consent of the putative father.
A guardian can give the child in adoption in the cases where both mother and father:
- Are Dead
- Have Finally or completely renounced the world
- Have abandoned the child
- Have been declared as unsound mind by a competent Court
- When the parentage of the child is unknown
In all the cases it is mandatory for the guardian to take prior permission to from the court. The court may grant permission when it is satisfied that the adoption is being done by the guardian for the well-being of the child and no amount or consideration is being paid by the adoptive parents to the guardian for the adoption.
CAPACITY OF CHILD TO BE ADOPTED
Section 10 of the act specifies the valid conditions for a child to be adopted. If these conditions are not satisfied then the child cannot be adopted and the adoption will not be valid. Under modern law, a lunatic child can also be adopted, adoption of a daughter is also allowed. The child need not to be belonging to the same cast to community to which adaptor belongs. The adoption of orphans, foundlings and abandoned children are now allowed under the modern law.
A child may be taken in adoption if he satisfies the following conditions-
He or she
- Shall be Hindu
- Has not been already adopted
- Has not been married, except if the custom or usage allows
- Has not completed the age of 15 years, except the custom or usage allows to do so
Thus, all the adoptions in India are governed by the Hindu Adoption and Maintenance act 1956. Any adoption which is in contrary to to the above-mentioned conditions of the act, will be void. It will not create any rights and responsibilities on the part of adoptive family and it will not terminate any rights or duties of the natural family of the child to be adopted.
Author’s Name: Pooja (Panjab University)