The traces of adoption under Hindu law are found mainly in Vedas and Manusmriti, which emphasized sonship. In Hinduism, the institution of sonship was regarded as important as that of marriage. The reason behind it was to perform several Brahmanical duties that every Hindu owes to his ancestors for the purpose of a continuance of line. This thought still somewhat reflects in our modern Indian society. Previously adoption was performed for religious fulfillment rather than secular reasons. In addition, it was defined as the transplantation of a son from the family in which he is born into another family by way of gifts made by his natural parents to the adopting parents. Therefore, the idea of adoption was strictly restricted to that of sons belonging to their own caste.
After the enactment of the Hindu Adoption and Maintenance Act, 1956 the gender biases and the religious importance were severed and replaced with that of new legislation that defined adoption as an act of a person taking an infant child (both girl and boy) as his/her own lawful child. This act is prospective in nature that means the adoptions, which were lawful before the enactment of the act but are not valid under the act, are deemed to be valid. The act has no operation beyond the territories of India.
Who can adopt under HAMA, 1956?
Any person who is Hindu as defined under sec 2(1) (a) of Hindu Marriage Act, 1955. A Hindu male must meet the requirement defined under section 7 of HAMA and a Hindu female shall fulfill the conditions defined under section 8 of the same.
As per section 7, the capacity of Hindu male to adopt
- Attained the age of majority; and
- Be of sound mind.
- Must have a wife that is alive whose consent is absolutely necessary.
- It can be overlooked if the wife is incapable of giving consent due to insanity or other reasons.
- If a person has multiple wives, the consent of all the wives is necessary for adoption.
The capacity of Hindu female as per section 8,
- Attained the age of majority; and
- Be of sound mind.
- Be either a widow;
- Divorced, or
- Unmarried in order to adopt
In the case of a widow, the child will be named after the deceased husband and if the husband is alive then the woman has no right under this act to adopt a child. A divorced woman is independent of her act hence not bound to her former husband.
Who can give a child for adoption as per section 9 HAMA, 1956?
In case if both the biological parents of the child are alive then the only father has the right to give a child for adoption under this act with the prior consent of his wife or mother of the child. If the husband is dead or of unsound mind or has renounced the world or converted to some other religion then in that case the biological mother has the right to give the child for adoption. If both the parents of the child are either dead or of unsound mind or renounced the world or have abandoned the child then it is within the capacity of the guardian to give the child up for adoption with the prior permission of the court. No adoptive parents can give a child for adoption.
Who is a guardian?
As per section 9 of HAMA, a guardian is the one who is any person appointed either by the biological parent of a child or the court of law for taking care of the child and his/her property.
Necessary conditions to be followed during the adoption of a son or a daughter
- Adoption of a son by a Hindu male or a female, they must not have a living son, grandson, or even a great-grandson at the time of adoption.
- Adoption of a daughter by a Hindu male or a female, they must not have a living daughter, granddaughter, or even a great-granddaughter at the time of adoption.
- Adoption of a female child by a male, If a Hindu male wishes to adopt a female child then firstly he should be competent are per section 7 HAMA and secondly, he must be at least 21yrs older than the girl child that is to be adopted.
- Adoption of a male child by a female, If a Hindu female wishes to adopt a male then firstly she should be competent are per section 8 and secondly, she must be at least 21yrs older than the boy child that is to be adopted.
- No child must be adopted simultaneously by different families at the same time.
- No payment should be made in exchange for adoption either by their biological parents or by the adoptive parents.
Who can be adopted as per section 10 of HAMA?
- He/ She who is Hindu
- Not already have been adopted
- He/ She who have not been married unless the custom or usage say so
- Not completed 15yrs of age or more unless the custom or usage say so
In case of adoption, it is not mandatory to perform the ceremony of Datta Homa but there must be a give and take of a child with an intent to transfer the child from the family of its birth to the family of its adoption. The transfer can be done using any method no particular method or procedure is described under law.
Who can be deemed as the adoptive mother or father of the child?
If a Hindu male adopts a child then in such cases the wife shall be deemed to be the mother of the adoptive child and if a male has more than two wives then in that case the senior-most wife must be deemed as mother and others as his/her stepmothers under this act. If a widower or a bachelor male has adopted a child then the woman he gets married to in the future will be considered as his / her stepmother. If a Hindu female, being a widower or a bachelor has adopted a child then the man she gets married to in the future will be considered as his / her stepfather as per section 14 under HAMA,1956.
As per section 6 of the act, the adoption is validated if the adoptive parents have the capacity and right to adopt, the person giving up the child for adoption has the capacity to do so, the person being adopted has the capacity to be taken in adoption, and the adoption is made in compliance with the act. Once the parent has legally adopted the child then as per section 15 of the act neither the parents can cancel a valid adoption, nor the child has any right to renounce their adoption and return to their biological family.