Utmost importance was attached to a son in Hindu Law as he saved his ancestors from hell, he offered pind daan on occasion of shraadh, and he continued his afther’s lineor name of family.
It must be for this purpose that custom of adoption must have been
devised. Daughter was not adopted.
The desire to have the natural born son is considered to be the basis of adoption among Hindus. If a person had no natural born son he was allowed to take son of some other person as his own. The sonship was given importance due to various religious and secular purposes in ancient period.
As obsered by the SC in Chandrasekhara Mudaliar v. Kulandaivelu Mudaliar, AIR 1963 SC 185, that it may be safely held that the validity of an adoption has to be judged by spiritual rather than temporal considerations and devolution of property is only of secondary importance.
Law of adoption is given in old shastras (referring to shastras i.e. Smritis, Mitaksharas and Dayabhaga and in Dattaka Mimansa and Dattaka Chandrika
MEANING AND CONCEPT
Adoption is the act of a person taking as his lawful child a person who is not in fact his child. It is the transplantation of a son from the family in which he is born into another family by way of gift made by his natural parents to the adopting parents. The adoption meant the removal of the child from the natural family and his transplantation in the adoptive family, so much so that all his ties with the natural family were severed and all the ties in the adoptive family came into existence. He was not merely related to the adoptive parents, but also to all relations on the paternal and maternal side in the adoptive family.
Law of adoption for Hindus is HAMA, 1956 now.
Under HAMA, 1956, adoption is a private act without any supervision by the state. No order of the court is necessary for an adoption except when the guardian gives the child in adoption\
CONDITIONS FOR A VALID ADOPTION:-
No adoption shall be valid unless-
(i) the person adopting has the capacity, and also the right, to take in adoption (SS. 7 & 8);
(ii) the person giving in adoption has the capacity to do so (S. 9);
(iii) the person adopted is capable of being taken in adoption (S.10);
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter (S. 11).
1.Right to adopt: Sections 7 & 8
The person adopting whether male or female should have the capacity to take a child in adoption. Such capacity exists when he is of sound mind and is not minor. A bachelor, widow, widower or divorcee can also adopt. If the adopter has a legally wedded wife, he shall take her consent (Express or Implied). In void marriage consent is not necessary. If he has more than one wife, the consent of all wives is necessary. Before the commencement of the HAMA, 1956, the wife had no such power.
A married woman totally lacks capacity to adopt.
Position changed after Personal Laws Amendment Act, 2010 in sec. 8 “Any female hindu who is of sound mind and is not a minor has the capacity to take a child in adoption provided that, if she has a husband living, she shall not adopt except with the consent of her husband unless the husband has renounced the world or ceased to be a hindu or decalred by a court of competent jurisdiction to be of unsound mind.
2.Capacity to give child in adoption: Section 9
The list under s. 9 (1) include three persons – Father, Mother and Guardian.
The person giving in adoption should have the capacity to do so. While the father is alive generally he alone can give in adoption but he can do so only with the consent of the mother of the child unless she has renounced the world or cased to be Hindu or has been declared to be of unsound mind by a court of competent jurisdiction. The mother can give the child in adoption if the father of the child is dead or has renounced the world or has ceased to be a hindu or has been declared to be of unsound mind by a court of competent jurisdiction.
The expression father & mother do not include adoptive father and mother.
Duty of court when the adoptionis through guardian:-
1.The court must be satisfied that the adoption will be for the Welfare of the child.
2.Wishes of the child, having regard to his age & understanding.
3.No consideration is involved in the adoption.
3.The adoptee should be capable of being taken in adoption- Section 10
The child to be adopted should be under fifteen years of age. A boy or a girl may be adopted. Formerly only a male child could be adopted. Now it is possible to adopt a daughter. The child should be a Hindu, and should not have been previously adopted by someone else. A married person cannot be taken in adoption unless permitted by custom. In Bombay school of Hindu law custom the adoption of a married male.
4.Other conditions of a valid adoption- section 11
A son cannot be adopted if the adopter has a Hindu son, son’s son or son’s son’s son living at the time of adoption. A daughter cannot be adopted if the adopter has a daughter or son’s daughter living at the time of adoption. A male cannot adopt a female child unless he is at last 21 years older than the adoptee. A woman cannot adopt a male child unless she is 21 years older than the adoptee. The same child cannot be adopted simultaneously by more than one person. No person should give or receive any payment or reward in consideration of the adoption. The contravention of this does not invalidate the adoption, but the person contravening is punishable with fine or six months imprisonment or with both.