This article is written by Anchal Vishwakarma, a second-year undergraduate law student at Prof. Rajendra Singh (Rajju Bhaiya) University, Prayagraj.
Introduction
Adoption is the transplantation of a son or a daughter from the family in which he or she is born to another family where he or she has been given by a natural family and the ties from the old one come to an end.
Needs of the act
Under the Hindu law the adoption is primarily for the religious act intended solely for The spiritual benefit to the adopter father firstly it confirm the last tribe ceremony to the adopter with alternately benefit spirituality to him second lead conferred The legacy to carry on after him as the sole purpose of Mary’s cooperation of the of spring children and if it has not been attain them come the role of adoption the adopted child is called Dattakputra.
Meaning
When we say that the adoption is legally valid
The ground of a valid adoption
Section 6 Requisites of a valid adoption.―No adoption shall be valid unless—
i. The person adopting has the capacity, and also the right, to take in adoption;(section 7,8) ii. The person giving in adoption has the capacity to do so;(section 9)
iii. The person adopted is capable of being taken in adoption; ;(section 10)and iv. The adoption is made in compliance with the other conditions mentioned in this Chapter (section 11).1
Section 7 Capacity of a male Hindu to take in adoption.―Any male Hindu who is of sound mind and is not a minor has the capacity to take on or a daughter in adoption:
Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the word or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
Explanation.―If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso. 2
It simply say that if a male Hindu want to adopt a child then he should be sound mind and not a minor and have the capacity to take a child in adoption (for married and unmarried both male) and if a married man want to adopt a child that he must have to take the consent of his wife also if he have more than one wife he must take the consent from all of his wife.
Section 8.Capacity of a female Hindu to take in adoption.―Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption:
Provided that, if she has a husband living, she shall not adopt a son or daughter except with the consent of her husband unless the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.3 4
It simply say that if a female Hindu want to adopt a child then she should be sound mind and not a minor and have the capacity to take a child in adoption (for married and unmarried both female) and if a married female want to adopt a child that she must have to take the consent of his husband.
Section9. Persons capable of giving in adoption.― (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
2[(2) Subject to the provisions of sub-section (4), the father or the mother, if alive, shall have equal right to give a son or daughter in adoption:
Provided that such right shall not be exercised by either of them save with the consent of the other unless one of them has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.]
(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.
(5) Before granting permission to a guardian under sub-section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.
Explanation.―For the purposes of this section―
(i) The expressions “father” and “mother” do not include an adoptive father and an adoptive mother; 5* * *
(ia) “Guardian” means a person having the care of the person of a child or of both his person and property and includes―
(a) A guardian appointed by the will of the child’s father or mother, and
(b) A guardian appointed or declared by a court; and]
(ii) “Court” means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides. 5
It simply says that no person except parents or guardians can give a child in adoption if the child is abandoned by parents, father and mothers are both dead, unsound mind or in some other condition, with the prior permission of the court the guardian can give the child in adoption or take the child himself .
Section 10 Persons who may be adopted.―No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely: ―
(i) He or she is a Hindu;
(ii) He or she has not already been adopted;
(iii) He or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv)He or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.6
It is a simple word if a person who may be adopted by another family must fulfil the condition where he or she must be a Hindu, they shall not be adopted, they should be not married except it is a custom, they shall not be completed at the age of 15 years unless it is a custom.
Section11. Other conditions for a valid adoption.―In every adoption, the following conditions must be complied with: ―
(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s, son’s, son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) If the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;
(iv) If the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;
(v) The same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of
its birth 1 or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption:
Provided that the performance of dattahomam shall not be essential to the validity of an adoption.7
It says that if a person wants to adopt a son there must not be a son, grandson and great grandson or if they want to adopt a daughter then there should not be a daughter and granddaughter. If a male wants to adopt a girl child then there should be the difference of 21 years between them vis-a-versa. Also there must be actual give and take, not a practice as “dattahomam”.
Evaluation through modern times
In sitabai vs ramchandra8 a married Hindu woman cannot adopt even with the consent of her husband because it is the husbands who exercise the right of adoption with her consent.
This position has been changed after the enactment of personal law amendment act 2010 where women have been given equal right as that of men in the matter of adoption
Constitutional validity of section 11
In the case of Sandhya vs UOI9 It was held that Section 11 (1) & 11(2) are not violative of Article 14 & 21 of Indian Constitution as the sole purpose of this section was to prevent the discrimination of any child of the same sex taking in adoption.
The court held that it falls under the Reasonable Classification under Article – 14 and therefore it is valid.
Therefore Section 11(1) & 11(2) are constitutionally & totally valid. However Bombay High Court defend in the opinion in the adoption of Payal Sharinee.Shri vinayak Pathak where it was of the view that if 2 children are of the same sex Example-twin sister or brother and they are abandoned of the same sex then the provision of Section 11 (1) and (2) of HAMA and Juvenile
The justice care and protection act can be harmoniously constructed and must be interpreted in a way that the welfare of the child must be in Paramount consideration.
Therefore, the Juvenile Justice Act creates an exception to Section 11 of HAMA.
Issue of the case-Section-11 is violative of Article-14 as having a kid of same sex biologically and adopting same sex kid again violative of article 14.
Effect- If a person really wants paramount welfare of the kid by adopting the kid, he/she may contact the juvenile justice board and therefore adopt the child.
Criticism
In early times when there are not a law for adoption when it conducted as spiritual benefit there must be a drawback that, then a woman can’t adopt a child only male have the right to adopt a child also in that time female child can’t be adopted because then adoption is conducted only for spiritual benefit or the procreation of a children for growth of their offspring’s.
The effect of Hindu Adoption and Maintenance Act, 1956
i. The act has provided the right of women to Hindu to adopt. Under the old Hindu law the woman could not adopt a child to herself but the Hindu Adoption and Maintenance Act 1956. Under Section 8 has done away with this discrimination and now a woman or female who has capacity to adopt can adopt a child.
ii. The husband requires the consent of his wife before taking in adoption. iii. The guardian may also give in adoption with the permission of court. iv. Only majors (18+) can adopt.
v. One of the major changes is- There is no religious ceremony required under the old Hindu law the religious. “Dattahomam” was a necessary ceremony. Under the new act only giving and taking adoption is required
vi. The age difference under the present act where the adopter and the adopti child are of different sex there must be an age difference of 21 years.
Conclusion
To this article which talks about adoption I only say that it has taken new heights to the women’s stage in Indian patriarchal system where adoption is constituted only for spiritual benefit it takes into the welfare of children.
