This article has been written by Aprajit Jain pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho and has been edited by Shashwat Kaushik.
it has been published by Rachit Garg.
Introduction
I will now analyse the Hindu Adoption and Maintenance Act, 1956, and walk you through the legal process, validity, and consequences of adoption under this Act. The procedures involved in the adoption of a child by a Hindu adult, as well as the analysis of the provisions related to maintenance. What are the problems and issues that are raised or arise from this law, and what are the suggestive steps that can be taken to address those issues? The entire analysis will be divided into two parts: Adoption and maintenance.
Position before Hindu Adoptions and Maintenance Act, 1956
Before the introduction of this Act, provisions related to adoption were governed by Hindu law, which was not codified and standardised. According to the old provisions, only sons could be adopted, Illegitimate sons and orphans could not be adopted; women were not allowed to adopt. Therefore, with the enactment of this Act, all these issues were addressed, and the legal process of adoption by a Hindu adult and the obligation related to maintenance to various family members were streamlined.
Relevance of Hindu Adoptions and Maintenance Act, 1956
It is critical to note that this act is applicable only to Hindus, Sikhs, Jains, and Buddhists and not to anyone else, such as Christians, Muslims, Jews, or Parsis. If a non-Hindu wants to adopt a child, then he/she can do so by applying under the Guardians and Wards Act, 1890. Although the Honourable Supreme Court in the landmark judgement of M/S Shabnam Hashmi vs. Union of India, 2014 held that the Juvenile Justice (Care and Protection of Children) Act, 2000, is a secular law and any person can adopt as per its provisions irrespective of his/her religion,
The concept of adoption is prevalent in Hindu law, as described by Manu, the great Hindu Guru. In Hinduism, having a son is very important in order to keep the lineal order in existence. Hindus also believe that a person’s soul can reach heaven only when he lights the funeral pyre of the deceased and performs various rites related to death. Therefore, in order to ensure the existence of a son, they go for the adoption of a male child from a different family and endow them with the status of a real son. This practice gives adoption a religious as well as a social sanction. As per this tradition, people who did not have children or had only daughters were interested in adopting sons, thereby giving rise to the Hindu Adoptions and Maintenance Act, 1956.
As far as maintenance is concerned, it is clearly defined in the Act in an inclusive manner. It is something that is paid by a husband to his wife if she is unable to maintain herself during the course of marriage or upon divorce or separation. The provisions of maintenance are provided for by many Indian laws. Also, there is a personal duty to provide for maintenance due to the parties’ relationship. Such relations include wives, children, and old parents. It is basically a social security measure provided by this act. This altogether provides for the relevance and importance of this law in our society.
Adoption in Indian Law
In the entire law, the word ‘adoption’ is not defined, and it derives its meaning from the interpretation of the essence of the provisions of this act and relevant Judicial pronouncements. One such notable case was Basavarajappa vs. Gurubasamma And Others, 2005 where the Honourable SC held that on adoption, a person who has been adopted gets transplanted into an adopting family with the same rights as a natural born son.
Adoption process in India
The process of adoption in India is very lengthy and complicated because it requires compliance with two acts, namely the Hindu Adoption and Maintenance Act, 1956, and the Juvenile Justice (Care and Protection of Children) Act, 2015, along with the rules and regulations under these acts. Now both of these laws have separate processes for adoption. The process as per the JJ Act is as follows:
- The Central Adoption Resource Authority (CARA), under the Ministry of Women and Child Development, maintains the database of adoptive children.
- The prospective adoptive parents are required to register themselves online and upload all the necessary documents. After that, a home visit will be conducted by a worker from a specialised adoption agency.
- Adoptive parents are referred to as having the profile of legally free children, and they are required to reserve the child within 48 hours.
- Now matching of the child with the adoptive parents is done within 20 days.
- Within 10 days of the adoption of a child by adoptive parents, a petition is filed by specialised adoption agencies with the adoptive parents as co-petitioners in a designated court.
- The court shall dispose of the case within 60 days after an in-camera hearing. Court proceedings are required, as stated in law, in order to determine the willingness of the parents to adopt.
- After the court order, the adoption will be approved and will be binding upon the parents.
The process of adoption in the Hindu Adoption and Maintenance Act of 1956 is simple as it requires a ceremony for adoption, an adoption deed, or a court order, which is sufficient to obtain rights in adoption.
Issues involved in the adoption process
- The number of children registered in the CARA (2200) is very small as compared to the number of parents (28000) who are waiting for their turn to be referred to them for adoption. This is an emotionally exhausting process for adoptive parents, because of which they lose hope of adoption.
- There is a lack of coordination among various agencies, as there are also state-level agencies governing the adoption process. No survey takes place regarding the orphaned and abandoned children, forcing them to stay in orphanages.
- Lack of awareness regarding the changes in the JJ Act.
- Recently, an order passed by the government said that all the cases pending before the court regarding adoption will now be transferred to district magistrates. Thereby authorising the DMs to issue orders related to adoption. The authorities are unaware of the fact that DMs are already overloaded with district-related issues. Also, the adoptive parents are now unaware of the process and how it will proceed now that all the cases are required to be transferred from the courts to the district magistrates.
- A financial challenge is another concern in the adoption process. If you are adopting a child through a private agency, then be ready to pay an exorbitant amount, which is again a challenge for those adoptive parents who really need a child for whom they can care and shower their love.
Gaps and loopholes in the law
As the law is applicable only to Hindus, anyone who wants to adopt a child has to follow a different procedure. Therefore, the act is biassed towards non-Hindus who want to have an adoptive child. This provision has been left for the Interpretation of the court, which the court did in one of the cases. In the case of Jose Solomon & Anr vs. Central Adoption Resource Authority & Anr (2021), the Delhi High Court held that even if adoption is done by someone who is a non-Hindu but the parents have maintained the child in a good and responsible manner, the adoption will be a valid adoption.
The provisions of Section 11 are arbitrary in the sense that they say that if the adoption is of a son, then the adoptive father or mother by whom adoption is made must not have a Hindu son, grandson, or great-grandson. It means that if the son converts his religion to any other religion to which this act does not apply, such as Muslim, Jewish, Parsi, or Christianity, then such adoptive parents can adopt a son even if they have such a child who is a non-Hindu by reason of such conversion. The very essence of this act, which says that it is applicable to Hindus, is somewhat diluted here with the entry of a non-Hindu. This provision can be misused, as in order to adopt a child, a person can influence his son to convert to his religion.
The provisions of Section 11 have to be read with reference to the provisions of the Hindu Marriage Act, where it is said that if a child is born out of a void/voidable marriage, then it will be a legitimate child. Therefore, in order to determine the legitimacy of the Hindu Marriage Act, it has to be referred to. This leads to duplication of law and multiple interpretations.
Section 11 says that if the adoptive parents have a legitimate child or already have an adopted child, they cannot adopt another child. It focuses only on legitimacy or illegitimacy, which is not defined in this act. This flaw leads to a situation where an adoptive parent has a stepson who may or may not be a legitimate child, but since the act is silent on this point, in such a situation they can adopt a child because the provision focuses only on a legitimate child.
Suggestions related to adoption issues
There are a large number of children that are living in orphanages and child care institutions in our country, which can be added to the registry of CARA and fill the gap in the number of children and parents willing to adopt.
- Coordination should be established between various state level agencies as well as Central level authorities.
- The flaws in the law should be corrected, and the arbitrary provisions should be repealed.
- Where certain provisions require interpretation with reference to other acts, such as Hindu Marriage Act of 1955 and the Juvenile Justice (Care and Protection of Children) Act, 2015, those provisions should be merged.
- Definitions of certain terms such as adoption and legitimate or illegitimate should be clearly defined.
- Children with disabilities are left behind and not adopted. The number of adoptions of such children is far less than that of normal children. This issue needs to be addressed in the present scenario, where the government is focusing on children with such disabilities and providing them with a sense of dignity in our society.
- There are no processes and procedures for following up on the child who is given into adoption to see whether he/she is taken proper care of. Although a period of 2 years of follow up is provided for in the regulation, that needs to be expanded on the basis of the age of the child given in adoption.
- The entire approach related to the adoption process should be changed from parent-centric to child-centric. For that, consolidation of multiple laws dealing with adoption can play a vital role.
- Involve external agencies and experts and ask for their opinions.
Concept of maintenance under Hindu Adoptions and Maintenance Act, 1956
The concept of maintenance is covered in Chapter III, Sections 18 to 28, of the Hindu Adoption and Maintenance Act, as well as Sections 24 and 25 of the Hindu Marriage Act of 1955. Although maintenance is defined in the Hindu Adoption and Maintenance Act of 1956. It states that maintenance includes all the basic needs of life, such as food, clothing, shelter, education, and medical attendance and treatment. In the case of an unmarried woman, it includes all reasonable expenses, including those related to her marriage. Until marriage, maintenance is to be provided.
Recipient of maintenance
Now the question arises to whom is maintenance to be provided?
So, the Act specifically talks about the maintenance of a wife, a widowed daughter-in-law, children, and elderly parents. Section 18 of the act talks about maintenance during the subsistence of marriage to be provided to the wife only. Whereas Sections 24 and 25 of the Hindu Marriage Act talk about maintenance during the pendency of court proceedings related to Sections 9 to 13 of the said Act where proceedings related to restitution, judicial separation, or divorce are going on and marriage is either declared void or has ended and either of the parties do not have an independent source of income, final alimony and maintenance are to be provided after the end of the proceedings, respectively.
Under the Hindu Marriage Act, such maintenance can be provided to either the husband or wife because it focuses on providing the maintenance to the weaker party in the dispute.
Reasons for the concept of maintenance under Hindu Law
We all know that for a long time now, our society has been a patriarchal society, which is evident from many provisions of Hindu law that favour the mindset of a patriarchal society. Hindu law has been facing criticism from many academicians and researchers for a long time now because there is no doubt that the landscape of our society has changed to a great extent, which requires incorporation and necessary changes in the redundant provisions of the law.
The existence of a patriarchal society does not provide equal status and position to women in the domains of social life and events such as marriage, family decision-making, etc. Women do not have an equal say in decisions related to social aspects of life, whether in the institution of marriage or otherwise. Therefore, in order to address the sexism inherent in personal Hindu law, the concept of maintenance has arisen and is embedded in the provisions of the Hindu Adoption and Maintenance Act, 1956.
The roles and responsibilities that a woman fulfils in a marriage and the sacrifices she makes in her career in order to provide for her family and children are to be respected, and economic individuality and independence are necessary to be provided to her to respect her identity. All these arguments necessitate the concept of maintenance under the Act.
Issues involved in the provisions of maintenance under the law
- There are various laws that provide for the maintenance of a Hindu wife, sons, daughters, and aged parents, such as the Special Marriage Act of 1954, the Hindu Marriage Act of 1955, the Divorce Act of 1869, and many more. These multiple laws provide for different conditions, multiple interpretations, and multiple conditions that need to be addressed.
- Secondly, as per Section 22 of the Hindu Adoption and Maintenance Act of 1956 which provides for the amount of maintenance under the Act, the conditions that determine the amount of maintenance are specified. This provision is left entirely to the discretion of the court to decide, and it is highly subjective in nature.
- No provision is there for the maintenance of the child who ceases to be a Hindu. As soon as a child converted to another religion, he lost all his rights to maintenance under the act.
- As per Section 19 of the Act, a widowed daughter-in-law is entitled to maintenance from her father-in-law but there is no provision in this Act or in Section 125 of the Code of Criminal Procedure of 1973 that provides for maintenance where the husband is alive but is missing, absconding, or deserting her. Although she can file for divorce, she cannot claim maintenance from her in-laws.
- The widowed daughter-in-law cannot claim maintenance from her mother-in-law even when she has sufficient means to provide for maintenance because the law specifically gives responsibility to the father-in-law who may not be alive to provide maintenance. Although the court has dealt with this issue in the case of Janki vs. Nand Ram (1888), where the obligation to provide for maintenance is given to those who inherited the property of the father-in-law.
Suggestions related to maintenance issues
- The Act should be amended in light of the fact that the religious freedom of the child should be protected when he ceases to be a Hindu for the purpose of maintenance under the Act.
- The much awaited Uniform Civil Code envisaged by Article 44 of the Constitution of India should be brought into force as soon as possible in order to address the confusion and duplicity of provisions embedded in these laws.
- The parliament should bring about necessary changes to the law through amendments and address these issues so that one doesn’t have to approach the court of law and follow the lengthy legal process.
- A new provision should be inserted that clearly specifies the legal and moral obligations of the husband under the law, thereby giving it legal sanctity.
- Emphasis should be laid upon the alternative modes of settlement such as arbitration, mediation, and conciliation so that the precious time of the court can be saved and the underlying issue can be sorted out amicably.
Conclusion
There is no doubt about the fact that laws evolve over a period of time; they are a reflection of the views, beliefs, acts, and perceptions of the people living in society. The Hindu Adoption and Maintenance Act is no exception to this. While going through the provisions of the Act, I came across certain provisions that seemed redundant to me, as pointed out in the article. Although I understand that there are certain authorities that are created under the Act because of certain International commitments made by us, such as CARA, which is created out of the Hague Convention on Intercountry Adoption. But since it is a personal law that has a direct impact on the social life of an Individual, the effort has to be made in order to reduce the process and procedures associated with it, as pointed out in the case of the adoption process in India. This is because it has a direct impact on the life of a person, which affects his family, his social standing, his emotional persona, and other social actions. We have an image of a procedure-oriented system where a person has to go through a lot of processes in order to get his work done. This element leads to a negative and cynical attitude towards the lawmakers, which in turn leads to a loss of faith in the government.
These laws have been enacted for a long time now, and there is a need to continuously review and amend them to ensure that they make sense and remain relevant in the present social geography of India. Our social structure is changing. We are going through a transitional phase in our society, from a joint family to a nuclear family. People have more aspirations now than they ever had. Gender equality is another area that is to be taken into consideration while amending personal laws. All in all, I can conclude that the law cannot influence society; rather, it has to be influenced by the changes taking place in society as far as these interpersonal issues are concerned.
References
- https://www.thehindu.com/news/national/explained-the-tedious-process-of-adoption/article65 879614.ece
- https://www.thehindu.com/society/why-are-adoption-rates-so-low-in-india-where-thousands-o f-children-live-in-child-care-institutions/article65237205.ece
- https://www.lawyersclubindia.com/judiciary/js-anr-vs-central-adoption-resource-authority-anr 2021-christian-couple-wrongly-adopts-under-hindu-adoption-act-delhi-hc-declares-them-ado ptive-parents-as-they-took-good-care-of-child-5382.asp
- https://iussp.org/sites/default/files/event_call_for_papers/Religion%20and%20Gender%20Bi as_IUSSP.pdf
- https://www.researchgate.net/publication/342877380_MORALITY_DEPENDENCY_AND_M AINTENANCE_PLIGHT_OF_WOMEN_UNDER_HINDU_LAW
- http://ijrar.com/upload_issue/ijrar_issue_20543409.pdf
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
