Manali Chotalia
Every year lakhs of infants are being abandoned and left in the streets to either die or to be taken away by someone to a better place. The concept of adoption was not considered good in the olden days. However, with the change in the times Indian society is becoming more considerate towards adoption after it legalisation.
Legal adoption has been defined as per Section 2 (aa) of Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 as
“The process through which the adopted child is permanently separated from his biological parent and becomes the legitimate child of his adoptive parents with all right, privileges and responsibility that are attached to the relationship.”
In layman’s term, it simply means taking care of someone else’s child as their own.
Adoption in India is only valid if done through the Hindu Adoption and Maintenance Act, 1956.
Who can be Adopted?
Section 10 of the Act lays down the provision for who can be adopted –
(a) “he or she is a Hindu;
(b) he or she has not already been adopted;
(c) 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;
(d) 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.”
Both male and female children’s can be adopted the only criteria to follow is that the child should be a Hindu.
A married Jat boy’s adoption was made valid by the Punjab and Haryana court who was above fifteen years in Maya Ram v Jai Narain, 1989 case. The adoption was allowed because of the prevailing community customs.
Also in Tarabai v Bagonda, 1981 the court had allowed and made the adoption of a married man valid. In this case, the person adopted was married and the person’s wife was pregnant when the adoption was done, however, the child of the adopted person was born after adoption. The court had held that the child born to the adopted person will also become a member of the family which had adopted the married person.
Who can Adopt a child?
Section 7 and Section 8 states who can adopt a child.
As per Section 7, a Hindu male willing to adopt a child has to follow certain conditions –
First of all, the person who is going to adopt a child should have attained the age of majority, should be sound mind, consent of the wife who is alive is necessary but the consent of wife is not necessary if she is not capable to give it (when wife is of unsound mind), and in case of multiple wives consent of all of them is required.
A person can adopt only a son or a daughter and not both.
The court had held that adoption done by a person of unsound mind is not valid in Baba Kant v Kestenpuras 6 Berg SR219.
Section 8 deals with the conditions to be followed by the Hindu female for adoption –
(i) she must be of sound mind;
(ii) should not be minor, and
(iii) she should not be married.
The court has allowed unmarried women and also widows to adopt a child. But if the husband of any women is alive then she will no longer have the capacity.
Apart from adopting a child, any person or guardian of a child can give the child for adoption.
According to this a child can be given for adoption by the biological father along with the consent of the child’s mother, which is necessary while giving the child for adoption.
If the father of a child is of unsound mind, is dead, has renounced the world or has converted to another religion, then the mother of such child will have the capacity of giving the child for adoption.
A child cannot be given for further adoption by the adoptive parents.
No adoption can be valid until these conditions have been followed given u/s 6 –
(i) “the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.”
When a child is adopted legally, then such adopted child gets all the rights and obligations as a naturally born child.
In case where the parents of a child are dead, have renounced the world, are of unsound mind or have abandoned the child, then the court appoints a guardian for such child. The guardian appointed can give the child for adoption only with the prior permission of the court.
The adopted child is given maintenance from the adoptive parents till the child becomes a major. The adopted children’s are also entitled to an equal share on the property of their adoptive parents. Such child is considered in the Class I heirs in the Hindu Succession Act, 2015 which includes son, here the word son is not defined under this Act, thus it can be concluded that it includes both the adopted and the natural son.
Even if a father dies intestate and has an adopted child then that child will be given the full share in the property of the father. However, if a real son is born after adoption then both the sons will get an equal share.
If the adopted son is a disqualified heir due to some mental issues then such child will only be entitled to maintenance and not to the estate.
Indian laws have made sure that the adopted children are given the equal treatment with regards to the rights and also the property of the adoptive parents.
