What do you mean by adoption ? Illustrates the requirements of a valid adoption under Hindu Adoption & Maintenance Act, 1956 ? Or Discuss the capacity of a male and female Hindu to take a son or daughter in adoption. (b) Describe, who are capable to give a child in adoption ? Also state that who can be adopted ? Or (c) Discuss the legal effects of a valid adoption ?
Ans. (a) Meaning of Adoption — According to Manu, “A son equal in caste and affectionately disposed whom his mother or father (or both) give with water at a time at calamity, is known as Duttaka son.” Thus adoption is the transplanation of a son from the family in which he is born, to another family where he is given by the natural parents by way of gift. The adopted son is then taken as being born in the new family and acquires righte, duties and status there only, and es with the old family come to an end. Essentials of a Valid Adoption–According to S.6 of the Hindu Adoption and Maintenance Act, 1956 the following arc the essentials of a valid adoption–
1. The person adopting has the capacity, and also the right, to take in adoption (S,7 & 8). 2. The person giving in adoption has the capacity to do so (S.9). 3. The person adopted is capable of being taken in adoption (S. 10). 4. The adoption is made in compliance with the other conditions mentioned in S. 11 of the Hindu Adoptions and Maintenance Act, 1956, which includes actual giving and taking. But Dutta Homam which was required under old Law, in no longer necessary now According to S.11 of the Act, 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 iion’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 male, 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 ale, 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 guardians or under their authority with intent o transfer the child from the family of its birth to the family of its idoption : provided that the performance of datta homan shall not be necessary condition to the validity of an adoption. But it has been held in Ranjit tumor Jain Vs. Kama! Kumar Chowdhuty & Another, 1982, Cal. 93, that the ceremony of giving and taking in adoption is essential. even among Jains. Who May Adopt ? Ss. 7 & 8 of Hindu Adoption & Maintenance Act, 1956, deal with the person who may adopt a child. S.7 deals with the adoption by a male and S.8 deals with adoption by a female. Whether male or female, the person who is adopting a child must have the capaciity and also the right to take a child in adoption.
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 a son or a daughter in adoption. But if the male Hindu has a wife living at the time of adoption, he shall not adopt except with the consent of his wife. But this consent of the wife of a male Hindu is not necessary in the following three conditions — (i) The wife has completely and finally renounced the world, or (ii) The wife has ceased to be a Hindu, or (iii) The wife has been declared by a court of competent jurisdiction to be of unsound mind. If a man has more than one wife living at the time of adoption the consent of all the wives must be obtained. But if any of them is suffering from any of the three disabilities (i.e., civil death, apostacy or unsoundness) the consent of such wife who is under such disability may be dispensed with and the consent of all other wives must be taken. The father’s power to give the child in adoption in preference to the power of the mother has been preserved under the present Act. Capacity of a Female Hindu to Take in Adoption–Any female Hindu—(i) Who is of sound mind, (ii) Who is not a minor, and (iii) Who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption. During the continuance of marriage the wife has no right to adopt except where the husband isj suffering from any of the disabilities. A woman who has been divorced,; i.e., whose marriage has been dissolved under S.13 of the Hindu Marriage Act, can take a child in adoption. (Dunichand Vs. Paras Ram; A.I.R. 1970, Delhi 202). (b) Who are the persons capable of giving a child in adoption? Under the old Hindu Law only father or mother could give in adoption: The only persons who could lawfully give a boy in adoption were his father or his mother or the guardian (whether testamentary or appointed’ by the court): Manu says, “He whom his father and mother (with her husband’s assent) gives to another, is considered as a son given.” The father could act against the will of mother but the mother could not gi’ without the assent of his husband while he was alive but after his deat she could give her son in adoption in the absence of express prohibition by her husband. Thus, one brother could give another in adoption Similarly a step-mother could not give step-son in adoption. Nor can grandfather give his grandson in adoption.Under the Present Hindu Law following persons are capable of giving a child in adoption —1. Right of Father —The primary right to give in adoption is that of the father. If the father is suffering from any of the disabilities, then he is no longer capable of giving his child in adoption and the mother can give the child in adoption. 2. Right of Mother—The mother cannot give her son in adoption while the father is alive and capable of consenting without his permission. But she may do so, if he has become incapable of giving his consent or if he has renounced wordly affairs and entered a religious order, or after his death, provided there be no express or implied prohibition from him. 3. Right of Guardian—In the absence of the parents or when both the parents have completely and finally renounced the world or both have been declared to be of unsound mind the guardian of the child may, with the permission of the court to which he may be subordinate, give the child in adoption. 4. Delegation of Power—The power to give a boy in adoption belongs exclusively to his parents, and it can be exercised by them alone. Neither parents, therefore, can delegate the power to another person. But the physical act of giving a son in adoption may be delegated to another, as such an act involves no exercise of discretion. 5. Renunciation of Hindu Religion—A Hindu father, who has become a convert to Mohammedanism docs not by reason of his conversion, lose his power of giving his son who has remained a Hindu in adoption. But since the physical act of giving a son in adoption is accompanied by religious ceremonies such act must be delegated to another person who is a Hindu. 6. Mental Capacity—The person giving in adoption, must have attained the age of discretion, and must be of sound mind. The Hindu Adoptions and Maintenance Act thus gives wider powers to female — (i) The father, if alive shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother 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. So the consent of the mother.under the ordinary conditions is essential, but no such consent was necessary under the pure Hindu Law of adoption. (ii) Secondly, the mother’s right to give in adoption jcomes after the father and there is no question of any express or implied prohibition from husband. (iii) Thirdly, the power given to a guardian of a child (whether a testamentary guardian or a guardian appointed or declared by a court) to give a child in adoption with the previous permission of the court is quite new. No such power was given under the pure Hindu Law to a guardian to adopt. Who Can be Adopted? S.10 of the Hindu Adoptions and Maintenance Act, 1956, provides –1. That the persons who may be adopted, includes females also among the persons who may be adopted. This is an important change as daughter and son are kept on the equal footing. 2. A superfluous clause as a precautionary measure has been added by mentioning that he or she has been not already adopted; this simply means that a boy or girl cannot be adopted twice and reiterates the old law that two persons cannot adopt the same boy and such an adoption is not valid. 3. The controversy as to the upanayana has been set at rest by removing this condition that an adoption must be done before upanayana. Now he or she is not required to be married unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; another condition has also been prescribed that an adoption must be made before he or she has not completed the age of fifteen years unless there is a custom or usage applicable to the parties which permits person who have not completed the age of fifteen years being taken in adoption. The conditions of caste and Gotra have been removed. 4. He must not be a boy whose mother the adopting father could not have legally married, has also been removed. Besides, there are other conditions for a valid adoption—(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 or grandson or great-grandson (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 adoptipn; (iii) If the adoption is by a male and the person to be adopted is a female, the adoptive father is at least 21 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 21 years older than the person to be adopted. (c) Legal effects of a valid adoption–According to S. 12 of the Hindu Adoptions and Maintenance Act of 1956, the following are the effects of adoption —
1. An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. 2. From the date of adoption 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 the adoptive family. This rule is subject to the following conditions–(a) That the adopted child cannot marry any person whom he or she could not have married if he or she had continued in the family of her birth; (b) That any property which vested in 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 relative in the family of his or her birth; (c) The adopted child shall not divest any person of any estate which vested in him or her before the adoption. In Banabai V.s. Wasudeo,A.I.R. 1979, Born. 181, the Bombay High Court has held that the adoption takes effect only from the date of adoption and not prior to the adoption. The fiction of relation back as a result of adoption has been done away with by S. 12 of the Act.