hindu law

1. Adoption of child in India
Definition of Adoption
• It is a process by which person takes a child, who was not born to
them and raises him or her as a member of their family
• It is a transaction where the mutual rights and responsibilities of
the child is permanently transferred from biological parents to the
adoptive parents.
Types of Adoption
The adoption is categorised on the basis of the effect on the parties
involved as well as on the basis of location & origin
The types of adoption on the basis of effect on the Parties involved
 Open adoption
 Semi-open adoption
 Closed adoption
Open adoption: - Open adoption is the form of adoption in which the
biological and adoptive families have access to varying degree of each
other’s personnel information & have an option of contact.
Semi-open adoption:- It occurs when potential birth mother or birth
families experience non identifying interaction is facilitated by a third
party which is usually adoption agency or attorney
Closed/Confidential/Secret Adoption:- Is a process by which an infant is
adopted by another family and the record of biological parents is kept
sealed

2. The types of adoption on the basis of location & origin
 Domestic adoption
 Inter-country adoption
• Domestic adoption :- Domestic adoption is the form of adoption
in which the biological and adoptive families are belonging to
same country.
• Inter-Country adoption:- Inter country adoption is a form of
adoption in which biological parents and adoptive parents are
belonging to different countries
Agencies involved for adoption
 CARA ( Central Adoption Resource Agency)
 LAPA (Licensed Adoption Placement Agency) for in-country
adoption
 RIPA(Recognised Indian Placement Agency) for inter-country
adoption
 Voluntary Coordinator Agency
 Adoption Coordinator Agency etc
Procedure for adoption
• Step I:- Prospective adoptive parents should register themselves
with local RIPA/LAPA/ACA
• Step II:-Home Study report will be prepared by the social worker
agency

3. • Step III:- After satisfactory home study report, child is shown to
parents.
• Step IV:-Then a successful matching agency file a petition in
court/ Juvenile Justice Board for obtaining orders of valid adoption

4. The Hindu Adoption and Maintenance Act 1956
• Basically deals with two concepts:
Adoption
Maintenance
• Applicability of the act:
Territorial: Whole of India except J&K Sec 1(2)
Subject: Hindu by Religion
Convert and reconvert to Hindu Religion
Abandoned child whose parentage is not know and who is
brought up as hindu.
All the adoption regulated by this act
o No adoption is made by or to the Hindu except according to this
act .
o Any adoption Made in Contravention of this act shall be void
o Adoption which is void shall not create any rights in the adoptive
family nor destroy any right in the family of his birth (Sec5)
Essentials of valid adoption
No adoption is valid unless:-
 The person adopting has the capacity and also right to take in
adoption
 The person giving in adoption has the capacity to do so
 The person adopted is capable of being taken in adoption

5. The other conditions must also be complied (Section 6)
Who may adopt a child
The Hindu male as well as female can adopt a child under Hindu
Adoption and Maintenance act
• The capacity of male Hindu to adopt is covered under section 7
• The capacity of female Hindu to adopt is covered under section
8
Capacity of a Male Hindu to adopt a child Section 7
A hindu male of sound mind and who is major has the capacity to adopta child. If
he is having a wife living he shall not adoptwithout the consent of his wife. This
condition of the consent is dispensed with if the wife finally renounced the world,
if she is declared as a personof unsound mind by a competent court, if she ceases
to be a Hindu. If the male Hindu is having more than one wife living then he
cannot adopt without the consent of all the wives
Ghisalal vs Dhapubhai AIR 2011 SC 644
“The consent of the other spousehas to be explicit; it cannot be presumed, taken
for granted as implied in the other spouse’ssilence or conduct, especially if he or
she contests the claim that consenthas been duly obtained”.
Other conditions for valid adoption by Hindu male is given under section 11 of this
act. If the Hindu male desired for the adoption of a son, the adoptive father should
not have living Hindu son, Hindu son’s sonand Hindu son’s son’s son(legitimate
or adoption).
If adoption is of a daughter, the adoptive father shouldn’t have living Hindu
daughter or Hindu son’s daughter(legitimate or adoption)
If adoption is of female then the adoptive father should be twenty-one years older
than her.

6. Procedural requirements to be fulfilled by PAP’s (Prospective
Adoptive Parents):-
 2years stable relationship in case PAP’s are married
 To adopt the children in the age group of 0-3 yrs the maximum composite
age od PAP’s should be 90 yrs wherein the individual age of the PAP’s
should not be less than 25 yrs & more than 50 yrs.
 To adopt children above 3yrs, the max. composite age of the PAP’s should
be 105yrs wherein the individual age of the PAP’s should not be less than
25yrs & more than 55yrs.
 A single PAP desiring to adopt should not be less than 30 and more than 50.
The maximum age shall be 40yrs to adoptchildren in the age 0-3yrs& 50yrs
for adopting children above 3yrs.
 PAPs should have adequate financial resources to provide good upbringing
to child.
 PAPs should have good health and should not suffering from contagious or
terminal disease or any such mental or physical condition which may
prevent them from taking care of the child.
 Single male is not permitted to adopt a girl child.
Capacity of female Hindu to adopt
According to Section 8 of HAMA , Any Female Hindu is capable to adoptif she is
of sound mind ,She is major ,Whether she is married or unmarried. Before the
passing of Hindu personal Law amendment act 2010 only unmarried female can
adoptchild for herself and married female has no right to take a child in adoption
If woman is married she can adoptonly with the consent of husband.The
requirement of consent can be dispensed with in these three conditions:
 If husband has finally renounced the world
 If the husband ceases to be a Hindu

7.  If the husband is declared by a court of competent jurisdiction to be a
personof unsound mind
Who can give a child in adoption?
• No person except Father, Mother and Guardian can give a child in
adoption.
• The father and mother if alive shall have equal right to give a son
or daughter in adoption.
• The right shall not be exercised by either of them without the
consent of other.
• The condition of consent will be dispensed with if one of them has
finally renounced the world, ceases to be a Hindu or declared to be
a person of unsound mind. (Sec 9)
• Where both the father and mother
Is not alive
Have completely & finally renounced the world
Have declared to be person of unsound mind
Where the parentage of the child is not known
The guardian of the child can give in adoption with the
permission of the court to any person including the guardian himself
• Before granting permission to a guardian the court shall satisfied
that the adoption will be for the welfare of the child
• Court shall give due consideration to the wishes of the child having
regard to the age and understanding of the child

8. • No person can give any payment or reward in consideration of the
adoption except such as the court may sanction.
• Father and mother do not include the adopted parents.
• Guardian means a person having the care of the person of the child
or of both his person and property.
• It includes
A guardian appointed by will of the child’s father or mother
A guardian appointed or declared by a court.
Persons who may be adopted
• No person shall be capable of being taken in adoption unless the
following conditions are fulfilled:
He or she is a Hindu
He or she has not already been adopted
He or she not been married unless there is a custom
He or she has not completed the age of fifteen years unless the
custom prevails(Sec. 10)
Kumar Sursen vs State of Bihar AIR 2008 Pat 24
“A Hindu, Buddhist, Jain or Sikh can adopt only a child from any of
these four communities; adoption of a child belonging to any other
religion is not permissible. A child of unknown parentage, or abandoned
by parents, if brought up by a person professing any of these religions
according to his religion can be lawfully adopted. But a child who
knowingly belongs to any other religion cannot be adopted”.
Devgonda Patil vs Shamgonda Patil AIR 1992 Bom 189

9. As the law does not require, the child to be adopted should be of sound
mind even a child of unsound mind as well as a physically or mentally
handicapped child can be lawfully adopted.
Chandra v. Akbar 1909 Punjab Records 162:2 Ind. Cas 91
Among Lohars of Amritsar the adoption at the age of 26 of a married
man, with children was held not invalid by the custom
As the law does not require, the child to be adopted should be of sound
mind even a child of unsound mind as well as a physically or mentally
handicapped child can be lawfully adopted.
Other conditions for valid adoption
• If adoption of Son is there the adoptive father or mother should not
have Hindu Son , Son’s Son, Son’s Son’s Son( whether by
legitimate blood relationship or by the adoption) living at the time
of adoption
• If the adoption is of daughter, the adoptive father or mother by
whom adoption is made must not have a Hindu daughter or son’s
daughter.
If adoption is to be made of child of different sex then at least 21 yrs age
gap should be there.
• The same child should not be simultaneously adopted by two or
more persons
• The child to be adopted must be actually given and taken in
adoption
• The performance of datta homam is not be essential to the validity
of the adoption

10. Lakshman Singh Kothri vs Smt Rup Kanwar AIR 1961 SC 1378
There cannot be a valid adoption unless the adopted child is transferred
from one family to another, the object being to secure due publicity.
Effects of Adoption:
• An adopted child should be deemed to be the child of his or her
adoptive father or mother for all purposes with effect from the date
of adoption
And from such date all the ties of the child in the family of his or her
birth shall be deemed to be severed and replaced by those created by
adoption in the adoptive family
• The child cannot marry any person whom he or she could not have
married if he or she has continued in the family of his birth
• Any property which is vested in the adopted child before the
adoption shall continue to vest in such person subject to the
obligations, if any attaching to the ownership of such property
including the obligation to maintain relatives in the family of his or
her birth
The adopted child shall not divest any person of any estate which vested
in him or her before the adoption (Section 12
Khazan Singh vs Union Of India AIR 1980 Del 60
• A lawfully adopted child, from the date of its adoption, steps into the
shoes of the adopter’s natural child and has the same status, rights and
liabilities as the latter in the adopter’s family.
• An adoptive child will become a member of the caste and sub caste of
the adoptive father. So if its natural father is not, but the adoptive

11. father is a Scheduled Caste as the Constitution (Scheduled Castes)
order 1950 the adoptee will also have the Scheduled caste status.
Adoption of son by a widow
• Pre Act Law:
Before the passing of Act “the Doctrine of Relation Back” applies
“A son adopted by a widow under the authority of her husband was
deemed to have come into existence in the adoptive family on the day
the husband died,
the adopted son was put in the position of posthumous son and all his
relations in the adoptive family related back to the date of the death of
his adoptive father by legal fiction”.
Exceptions to this principle
• Two exceptions are there:
Any lawful alienation effected by a female heir since the death at the
adoptive father and before the date of adoption was binding on the
adopted son.
If the property by inheritance went to a collateral, the adoption could
not divest the property which was vested in the heirs of the collateral.
Sripad Gonjam v. Datta Ram Kashi Nath AIR 1974 SC 878
• SC has explained the meaning of this doctrine
“When a widow adopts a son to her husband, doctrine makes sonship
retrospective from the moment of the death of the late husband”
Limitation of this principle:

12. The principles of relation back applies only when the claim made by the
adopted son relates to the estate at his adoptive father .
It does not apply when the claim made by the adopted son relates to the
estate at the collaterals
Dinaji Vs Dadde AIR 1990 SC 1153
If a widow in the adoptive family has inherited property before the
adoption of a child in the family, the inherited property is vested in her
as her absolute property in terms of section 14 of the Hindu Succession
Act, She will not divested of it as a result of the subsequent adoption
Present Law
• The adopted child is deemed to have come into existence in the
adoptive family from the date of his actual adoption not from a
back date.
• Veenabai v Basudev AIR 1962 SC 59
The husband died leaving behind a widow after the passing of Hindu
Succession Act 1956.The widow after sometime adopted a son and
dispose of certain part of the property.
The adopted son challenges the validity of the sale.
Court held that the adoption come into effect from the date of his actual
adoption and rule of relation back is now not applicable so not entitled to
it.
D.S. Agalwe v. P.M. Agalwe AIR 1988 SC 45
• There was the joint Hindu family consisting of Dharma and Mirgu.
Mirgu died issueless leaving behind his widow, Champabai.

13. • After the death of Mirgu the coparcenary property devolves to the
Dharma.
• Later on the widow adopted a son, Panduranga
• Then the widow and adopted son claimed their share in
coparcenary property
• Court held that the adopted son and his adoptive mother could
rightly claim a share in the coparcenary property, which has
devolved upon sole coparcener.
• There was the joint Hindu family consisting of Dharma and Mirgu.
Mirgu died issueless leaving behind his widow, Champabai.
• After the death of Mirgu the coparcenary property devolves to the
Dharma.
• Later on the widow adopted a son, Panduranga
• Then the widow and adopted son claimed their share in
coparcenary property
• Court held that the adopted son and his adoptive mother could
rightly claim a share in the coparcenary property, which has
devolved upon sole coparcener.
Kesar Bai Jagannath Gujar v. State of Maharastra AIR 1981 Bom
109
Bombay High Court Held that
where a property has been inherited by a widow from her husband after
the commencement of the Hindu Succession Act 1956 that property
becomes her absolute property.

14. An adoption made by her thereafter could not affect the nature of the
property which has vested in her. The old doctrine of relation back has
been completely abrogated by the present act.
Right of adoptive parents to dispose of their property
Subject to any agreement to the contrary, an adoption does not deprive
the adoptive father or mother of the power to dispose of his or her
property by transfer inter vivos or by will. (section 13)
This section emphasized on the maintenance of normality after the
adoption
Ugre Gowda v. Nage Gowda AIR 2004 SC 3974
An adoption of son does not deprive the adoptive mother of the power
to dispose of her separate property by the transfer or by will
Determination of adoptive parents
Rules to determine adoptive father and mother
 Where a Hindu who has a wife adopts the child, she shall be
deemed to be adoptive mother.
 Where an adoption is made with the consent of more than one
wife, the seniormost in marriage among them shall be deemed to
be adoptive mother and others to be the step- mother.
Rules to determine adoptive father and mother
 Where a Hindu who has a wife adopts the child, she shall be deemed
to be adoptive mother.

15.  Where an adoption is made with the consent of more than one wife,
the seniormost in marriage among them shall be deemed to be
adoptive mother and others to be the step- mother.
Restriction on the annulment of the adoption
No adoption which has been made validily can be cancelled by the
adoptive father or mother or by any other person, nor can the adopted
child can renounce his or her status and return to the family of his or her
birth. (Section 15)
Presumption as to registered document as to the adoption
Whenever there is a document registered under any law for the time
being in force is produced before any court relating to the adoption made
and is signed by the person giving and the person taking the child in
adoption,
the court shall presume that the adoption has been made in compliance
with the provisions of this act unless and until it disproved .(Sec. 16)
Conditions for the availability of the presumption
• There must be a document
• It must be registered under the law in force
• It must support to record an adoption
• The document must be signed by both the giver and the taker of
the child in adoption and not by only one of them.
• It must be produced before the court.
If any of the condition is wanting, the presumption cannot arise.

16. Prohibition of certain payments
• No person shall receive or agree to receive any payment or other
reward in consideration of the adoption of any person
• No person shall make or give or agree to make or give to any other
person any payment or reward.
• If any person gives and takes payment or reward for adoption, he
shall be punishable with imprisonment which may extend to six
month, or with fine, or with both.
• No prosecution shall be instituted without the previous sanction of
the State government.(Sec17)
Fee Structure for the adoption
Charges outside the stipulated headings are not legal
 Registration Fee: 200/-
 Home Study report: 1000/- + T.A.
 Maintenance Charges: not exceeding 15000/- at the rate of 50
/- per day from the date of admission until placement in foster care.
 In case of Special Medical Care: hospitalization Charges.
Legal Fees and Scrutiny Fee as per actuals