(I) Capacity of a male Hindu to Adopt: - according to section

7, a major Hindu male of sound mind can adopt a son or

daughter, whether he is a bachelor, widower, divorcee or
married Hindu male it is obligatory to obtain the consent of
his wife. In case he has more than one wife, consent of all the
wives is necessary. If consent of a wife living with the
husband is taken but the consent of a wife living separately is
not taken, the adoption will be void. He shall not adopt
except with the consent of his wife unless the wife I) has
completely and finally renounced the worked, or (ii) has
ceased to be a Hindu, or (iii) has been declared by a court of
competent jurisdiction to be of unsound mind.
(ii) Capacity of female Hindu to Adopt:According to section 8, a maiden, married or a widow can
adopt a son or daughter. So, any female Hindu (a) who is of
sound mind (b) who is not a minor, and (c) who is not
married of if married, whose marriage has been dissolved or
whose husband is dead or has completely and finally
renounced the worked has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be of
unsound mind, can take a son or a daughter in adoption.
(iii) Restrictive conditions of Adoptions:If a person has capacity to adopt it is not necessary that he
has also the right to make an adoption. Accordingly section II
of the said Act deals wilt certain restrictive conditions which
must be obeyed. These conditions are:

(a) If a Hindu wants to adopt a son, he must not have a

Hindu son, sons son or sons sons son. Son, or sons
or son or sons sons son may be by legitimate birth or
by adoption.
(b) If a Hindu wants to adopt a daughter it is necessary
that he must not have h Hindu daughter, or a sons
daughter(whether by legitimate blood relationship or
by a adoption) living at the time of adoption;
(c) Two persons cannot adopt the same child.
(d) If a Hindu wants to adopt a child of the opposite sex,
he or she must be older to the child by at least 21
years. A violation of this requirement renders the
adoption void.
However, these restrictive conditions were
challenged in Sandhya Supriya Kulkarni v. Union of
India, to relax these conditions as personal laws do
not fall within the ambit of part III of the constitution.
(B) Who may give in Adoption?
Section 9 of the Hindus Adoption and maintenance Act, 1956
prescribes the capacity of persons, who could give the child
in adoption to another person. Only three persons are
capable of giving in a child in adoption viz., the father, the
mother and guardian of the child.
(i)

Capacity of father to give in Adoption:Now father can give the child in adoption only with
the consent of the mother of the child. The consent

of the mother maybe implied but the consent must

be free consent. The expression mother in the
present context means natural mother and does
not include an adoption mother or step mother.
But where the mother and does not include an
adoption mother or step mother. But where the
mother has completely and finally renounced the
world or has ceased to be Hindu or has been
declared by a court of competent jurisdiction to be
of unsound mind, father can give his children even
without her consent. The expression father does
not include step father, adoptive father or putative
father of an illegitimate child.
II) Capacity of Mother to give in Adoption: - the
mother has also the right to give the child in
adoption. But so long as the father is alive and
capable of giving a child in adoption where the
father is dead or has renounced worked and has
entered to be Hindu or has been declared by a
court of competent jurisdiction to be of unsound
mind, mother may give the child in adoption.
The expression mother does not include adoptive
mother or step mother and therefore a step
mother or adoptive mother has no capacity to give
the child ion adoption. But it seems that a mother
on conversion to another religion will not lose her
right to give the child in adoption, sinceS.9(4) does

not empower a guardian to give the child in

adoption in case the parent has ceased to be as
Hindu , Mother also does not lode her right of
giving the child in adoption on divorce.
III) Capacity of the Guardian to give in Adoption: after the father and the mother, guardian has the
power to give the child in adoption. In 1962, the
Hindu Adoptions and Maintenance Act, 1956 was
amended and a guardian was authorised for the
first time to give his/her ward in adoption even to
himself/herself if he so desired. Thus, 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.
the term guardian includes defacto guardian,
testamentary guardian and a guardian appointed or
declared by a court of law. The step father, step
mother and putative father of an illegitimate child
may give the child in adoption in the capacity of the
guardian of the child while in the capacity of father
and mother; they do not have such a right.

iv) Welfare of the child: - Before granting

permission the court should be satisfied that the
adoption is for the welfare of the child. After giving
due consideration to the wishes of the child, in the
light of the age and understanding of the child and
after making sure that the applicant has not
received or agreed to receive any payment or the
adoption except such as the court may sanction.
Since the acceptance of any payment or reward in
consideration of any adoption is punishable
according to section 17 of the Hindu Adoptions and
Maintenance Act, 1956. It may be presumed that
the court will sanction only such payments as are
necessary for the welfare of the child. The
punishment provision also suggests that the validity
of an adoption will not be affected by the
acceptance of money or reward as consideration
for the adoption. The provision for punishment
constitutes a check on undesirable practices which
could develop into trafficking in human beings
under cover of adoption.
(c) Who may be adopted?
Section 10 of the Hindu Adoptions and
Maintenance Act, 1956 permits the adoption of
males as well as females but no person is capable
of being taken in adoption unless the following
conditions are fulfilled namely-

I.

He or she is a Hindus; child neednt be of the

same case or sub-caste as the adoptive
parents;
II. He or has not already been adopted; readoption is strictly prohi8bited. But if the firs
adoption is invalid, the child may be given in
adoption. Thus, adoption of the same child
twice is not permitted.
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 parities which permits
persons who have completed the age of
fifteen years being taken in adoption.
Conditions (iii) and (IV) may be waived if the
custom or usage applicable to the parties permits
the adoption of married persons or of those who
have completed the age of fifteen years. A person
cannot be adopted simultaneously by two or more
persons. The Hindu Adoptions and Maintenance
Act, 1956 permits adoption of illegitimate child and
of daughter and of only son and one daughter.
D) Adoption procedure and formalities

The only ceremonial procedure at present under

the Hindu Adoption and Maintenance Act is the act
of actual giving and taking of the child by the
parties concerned. The child must be actually given
and taken in adoption with intent to transfer the
child from the family of its birth to the family of its
adoption13. In the case of an abandoned, orphan
and foundling where he or she is being brought up
to the family of its adoption. The physical act of
giving and taking the child is absolutely necessary
for the validity of Adoption.
4.2

(i)

LEGAL EFFECTS OF ADOPTION:

Section 12 of the Hindu Adoption and
Maintenance Act, 1956 enunciates the effect
of a valid adoption. The main effect of an
adoption is the transplantation of the
adopted child from the family of his
adoption. This section lays down that the
adoption takes effects from the date of
adoption. Adoption takes effect in the
following circumstances.

Parental Rights: - An adopted child shall be deemed

to be the child of his or her adoptive father or
mother for all purpose with effect from the date of
adoption, and from such date all the ties of the

child in family of his or her birth shall be deemed to

be served and replaced by those created by
adoption in the adoptive family. An adoption
confers upon the adopted the same rights and
privileges in the family of the adopter as the
legitimate natural born child for all purpose with
effect from adoption.14

In case a single person adopts a child, any

subsequently married spouse will be the adoptive
father of the child. And where a widow adopts a
child; the deceased husband of the widow will be
the adoptive father of the child. The Supreme Court
confirmed the above view in Sitabai V.
Ramchandra.15
(ii)

Restrictions on Marriage: - 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 his or her birth. Similarly, the adopted son
or daughter cannot marry its adoptive parents or
other relations in the adoptive family whom the
child could not have married, if had born in the
adoptive family. Thus, the adoptee is to observe
prohibited degrees both in the adoptive family as
well as in the natural family. This provision seems
to be satisfactory and in consonance with the

(iii)

position of a natural born child in the adoptive

family.
Inheritance: - On valid adoption an adopted child
will inherit in the adoptive family like a natural born
son. He or she is entitled to share equally with the
natural born children of the adoptive parents. The
adoptive child shall not divest any person of any
estate which vested in him or her before the
adoption. This clause has been reference to the
property vested in some person in the adoptive
family prior to adoption. The doctrine of relation
back existing under the old law has been modified.
Now the adoptee is not deemed to be in insistence
at the death of the deceased husband of the
adopting widow, at least for the purposes of
succession.
Subject to any agreement to the contrary, an
adoption does not deprive the adoptive father or
mother of the power to dispose of his or her
property by transfer inter vivos or by will. The
expression subject to any agreement to the
country is very important. These words indicate
that any agreement made by the adoptive father or
mother restricting or curtailing his or her power to
dispose of his or her property is valid and binding.
Such an agreement may be made between the
adopter and the natural parents or the guardian.

(iv)

(v)

(vi)

Cancellation of Adoption: - A valid adoption once

made cannot be cancelled by the adoptive father or
mother or any other person. Nor can the adopted
boy or girl renounce his or her status as such and
return to the family of his or her birth. According to
section 16 the Supreme Court has held that if a
customary adoption made prior to the
commencement of the Act was revocable under
that custom, then revocation is valid even after the
commencement of the Act.
Registration of Adoption: - Registration of adoption
is not obligatory though parties are free to enter
into a registration deed. However, if the person
giving and the person taking in adoption have
recorded the fact of adoption and have got it
registered, then unless otherwise provided, the
presumption is that the adoption has been made in
compliance with the provision of the Act according
to section 16 of the Hindu Adoptions and
Maintenance Act, 1956.
Consideration for Adoption:- Any consideration in
the form of payment or reward for adoption is
strictly prohibited by the Hindu Adoptions and
Maintenance Act, 1956. The Act provides that no
person shall receive any payment or other reward
in consideration of the adoption of any person and
no person shall make or give or agree to make or

give to any other person any payment or reward

the receipt or which is prohibited.
Any agreement to give consideration for
adoption is against public policy as amoounti9on to
trafficking in children. Any such agreement is illegal
aned cnnot be enforced through the courts. Rather
giving and receiving of consideration has been
made a penal offence punishable with
imprisonment which may extend to six months or
with fine or with both. But prosecution for such
and offence cannot be initiated without the
previous sanction of the state government.
INSTANCES OF OTHER LEGISLITIONS:
Beside Hindu Adoptions and Maintenance Act,
1956, there is some other legislation which deals
with adoption of children in India. As under the
Guardians and wards Act, 1890 other communities
Muslims, Christians and Parsees can adopt a child
through the Act only confers guardianship on the
persons taking the child in adoption. The Hindu
Minority and Guardianship Act, 1956 declares
about the natural guardian (the adopted father and
after him the adoptive) of an adopted son. Recently
the Juvenile Justice (care and protection) of
children Act, 2000 also deals with the process of
rehabilitation and social reintegration of children
through adoption. However it is found by the

researcher that in India there is no uniform law of

adoption that is applicable to all Indians.
TO SUM UP
An adoption can be made3 by or to a Hindu
only in accordance with the provisions of Hindu
Adoptions and Maintenance Act, 1956 and any
adoption made on contravention there of shall be
void . The present Act requires only the ceremony
of actual giving and taking the child adoption as will
be clear from section 11(iv) of the Act Registration
of adoption is not compulsory. Revocation of
adoption is not possible under the Act. After
adoption, the adopted child is deemed to have
merged with the family of the adoptive parents
after severing all his or her relation with the natural
family and he requires all the rights and privileges
with respect to marriage, inheritance, partition in
the adoptive family. He is divested of all the rights
in the natural family from the date of adoption.
NOTES AND REFERENCES:
1) Derrett.introduction to modern Hindu Law,
Oxford University press, 1963 1st Ed: P. 92
2) Sawan Ram V. Mst.Kalawanti and others,
1967, SC 1761
3) Mul Chand V.Amrit Bai
ILR (1980) MP838
4) Naidu V.Naidu, 1970 SC 1673

5) Proviso to section 7
6) Bholooram V. Ramlal, 1989 MP 198
7) Section1 (VI); Vithal Ausabai, 1977 Bom 298
8) Clauses (iii) and (IV) of seciton11
9)
Air
1998
Bom
.228
10) the Hindu Adoption and Maintenance Act,
1956, section9 (2)
11)
Id.,
section
9
(3)
12) Id., section 9 (4)
13) Id., section 11 (VI)
14) Kesharpal vs. State of Mah. 1981 Bom 115
15) 1970 SC 343. See also Sawan Ram V. Kalawanti,
1967 SC 1761.