Adoption
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This article is written by Shaivy Maheshwari, a second year student,  pursuing BA.LLB from Symbiosis Law School, Noida. This article deals with the essentials of Hindu Adoption and Maintenane Act, 1956.

Introduction 

Laws governing different religions are known as personal laws. Our country maintains a pluralist kind of perspective in which the religious laws have their own standing and are often not interfered with by mainstream law. Different laws govern different religions and sometimes a single law of a particular subject matter governs a number of religions.

Adoption

When a person assumes the responsibility of a child and takes the role of a parent to him, he is said to have adopted the child. The laws governing adoption can vary from country to country and religion to religion. The person adopted can be of any age be it an adult or a child. The parents can often take legal recourse to adopt a child in order to have definite rights over the adopted child. The consent of the child’s parents to the adoption may, in special cases, be substituted by the approval of a judge.

The laws governing adoption in India are as follows:

The Hindu Adoption and Maintenance Act, 1956

The Act replaced the common Hindu law and to a great extent has codified the law on adoption. The Act aims to rectify the caste-based division in the Indian society and the adoption based upon it. It deals with the process of adoption of a child and all the legalities concerned with it. The act provides wide powers to a person to adopt according to certain conditions as specified in the law. However, this law does not confer any power to adopt to non-Hindus like Christians, Muslims and Parsees. The ultimate position would be if a Hindu wants to adopt a child from a Home he would be in a position to do so, but if a non-Hindu like a Christian intends to adopt he will be found to be sans law and sans procedure.

Guardian and wards Act, 1980

Since the Muslims, Christians and Parsis have no other legal recourse regarding the adoption laws, they can approach the court through this act. The personal law of these religions only identifies the provision of ‘guardianship’ and not adoption. In fact, a child who has been adopted cannot automatically assume the property belonging to the parents since the act has only conferred the relationship of a guardian and ward, unlike the Hindu adoption law. This relationship persists until the time the child has completed 21 years of age.

Juvenile Justice (Care And Protection Of Children) Act, 2000

This act aims to provide rehabilitation facilities and strong integration with the society to the orphan children who are given under chapter IV of the said act. Section 40 and 41 of the Act provides that the rehabilitation of a child will only happen at a new place and encourages the act of adoption and guardianship of surrendered or abandoned children of the society.

Research Questions

The research has been carried out in order to answer the following questions:

How is the consent of the person for the purpose of adoption determined in cases of disability (deaf or blind)?

Apart from the provisions of the act, is there any other conditions which are looked into for the purpose of adoption?

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Essentials of Adoption

There are three main essentials which have to be satisfied in order to make the child adopt. These are given as follows:

Capacity to adopt a child

Under Section 6 of the Hindu Adoption and Maintenance Act, the law specifying adoption says that both male and female can adopt a child whether they are married or unmarried. The main conditions with this respect are that they should be of sound mind and should be at the age of majority or above. In case the male or the female is married, he or she has to take the necessary consent of the person that he is married to and in that case, the consent of that party should be free. Under Hindu law, as per the Hindu Adoption and Maintenance Act, there are certain special conditions which are to be followed:

  1. The individual should not have a living child at the time of adoption. This concerns both legitimate and illegitimate child being adopted by either a male or female.
  2. Also, he/she should be equal or above 21 years of age.
  3. Consent in cases, where the adopting individual is married.

In case of a female, the conditions have been given under the Section 8 wherein it is stated that apart from these conditions, a widower or a divorced woman can adopt a child without any prior consent of her husband if he has completely renounced from the world, is no longer a Hindu by religion or has been declared to be of unsound mind by the court.

The laws concerning the capacity of a person to adopt have also been derived from the interpretations of various cases such as Dhanraj v. Suraj Bai which pointed out the necessary conditions of religion, age and consent of his wife (in case of a married man). In such conditions the consent would not be necessary if she has completely renounced from the world, is no longer a Hindu by religion or has been declared to be of unsound mind by the court.

Similarly, the case of Ambrish Kumari .v Hatu Prasad which specified that in case a person is deaf or blind, he can show his consent during the time of adoption by any common gesture to make the people understand.

In case the adoption is made without taking the permission of the wife, then such adoption would be considered to be invalid adoption. The consent in such cases can be taken in either an express or implied manner.

Capacity to give one’s child in adoption

Section 9 of the Act tells us about a person’s capability to give his/her child for adoption by another person or married couple.

The capacity has been divided under 3 parties having rights:

(i) Father

A biological father of a child is capable of giving his child for adoption and has more or less the same duties and rights in this regard as the mother of the child. The condition under which this right would be ceased from him would be if he has completely renounced from the world, is no longer a Hindu by religion or has been declared to be of unsound mind by the court.

(ii) Mother

Basically, the father and the mother of the child have the same rights concerning this issue. If however, the mother is living separately in the marriage due to the reason of a marital dispute, then she does not have this right. This has been illustrated in the case of Ram Sakhi Kuer v. Daroga Prasad Singh whereby the court said that a woman loses the right to give her child in adoption after she remarries.

Here, the mother of the concerned child must be his biological mother and not mother under any kind of other relationship. Also, she has no right by herself in this case if the biological father of the child is alive, however, she can take the permission of her husband in the cases where the husband is disabled. In addition to this, she has the right to give the child for the purpose of adoption if he has completely renounced from the world, is no longer a Hindu by religion or has been declared to be of unsound mind by the court.

(iii) Guardian

In case of the absence of a biological father or mother of the child, the guardian has this capacity. This also applies in cases where the parents have been declared to be of unsound mind by the court. In these cases, all the documents concerning the adoption have been registered and stamped by the court of law when the guardian has clarified his position in the court as to the welfare of the child and his custody.

Capacity to be adopted

In order to be adopted, the child or the person who is to be adopted also satisfy certain conditions for the fulfilment of the procedure. These are as follows:

  • The child should be belonging to no other religion except Hindu.
  • He/she should not have been adopted before the valid process of adoption has taken place.
  • Should be below the age of 15 years. (depends on the customs, if they allow then he can be adopted after 15 years also)
  • He should not have been married till the time he is adopted (depends on the local customs)

In the case of Kumar Sursen v. State of Bihar, the court pointed out that if the person is not a Hindu by religion then is not allowed to give the child in adoption or hence it would constitute void adoption. Also, in the case of Amar Singh v. Tej Ram, if the custom of a particular community permits that a married person can be adopted then this condition persists in cases of adoption and there is no bar to it.

Some additional conditions

  • Under this act, the person is restricted from adopting an additional child of the same sex.
  • In case, a person adopts a child who belongs to the same sex, then the parent should be at least 21 years elder to the child to be adopted.
  • In the case of the adoption of a child, more than single parents are not allowed to adopt a particular child. This implies that there must be an actual ceremony of the transfer of parents of a child from his biological family.

Procedure applied

As per the provisions of this act, an application can be made to the welfare agency of the child and get themselves registered. After this, the intention of the parents is determined by an officer of the agency who conducts an interview in this regard. When the supposed child to be adopted is finally decided by the parents, the proceedings in the court started. Lastly, the court hears the whole matter and the intention of the parties along with the necessary formalities, the adoption is finalized and the child becomes a legally adopted one. 

Satisfaction and interpretation by the court

In addition to these provisions, Section 17 of the same act is also looked upon by the court in order to satisfactorily come to a conclusion. Section 17 ensures that any reward or any kind of compensation also does not occur in the procedure of the adoption of a child. Also, Section 9(5) of the court ensures that no kind of child trafficking occurs and the child is only granted for adoption in cases of providing him with loving and nurturing care.

During the course of the final grant the court also satisfies itself with respect to the following conditions:

  1. Although there is no provision as such for this issue the court satisfies itself that the adoption is going to occur after knowing the wishes and aspirations of the child.
  2. The court will consider the financial position and the status of the adopter. It will also take into account the physical health of the child.
  3. Also the place where the child presently stays and the place where he would be taken after the adoption has been made legal would be taken into consideration.

In the case of Shankar Kumar Das, the court pointed out that the application which is required for the purpose of adoption of the child is to be filled by the right guardian of the child and not by the persons who want to obtain the child in adoption under subsection 5 of the said act. The court took into consideration the protection and care of the juvenile under the juvenile justice act. It said that it is under obligation to look into the matter of care and protection of the child especially when it comes to the custody of an abandoned child and to ensure that he is provided with appropriate welfare.

Maintenance

Under Section 20 of the act, it is ensured that the child whether he being the legitimate or illegitimate son or daughter of a person has a right to be maintained if the concerned person is Hindu by religion. Other than this, his old parents can also be maintained under the lieu of this act. This should only happen in the cases where the child is still a minor in age.

Conclusion

Different laws govern different religions and sometimes a single law of a particular subject matter governs a number of religions. The laws governing adoption can vary from country to country and religion to religion. The person adopted can be of any age be it an adult or a child. The parents can often take legal recourse to adopt a child in order to have definite rights over the adopted child. The laws governing these come under the Guardian and Wards Act, Juvenile Justice Act and the Hindu Adoption and Maintenance Act, 1956

The Act provides certain necessary conditions for the adoption and maintenance of a child. It provides three conditions for the rightly conducted adoption of a child:

(i) Capacity to adopt a child.

(ii) Capacity to be adopted.

(iii) Capacity to give one’s child in adoption.

This provides various conditions for any couple or any individual be it male or female to adopt a particular child and to give his/her child for the purpose of adoption. Also, the present and future conditions of the child to be adopted is taken into consideration. In addition to this, the court is always open to looking into the subjective considerations for the best needs of the child and the supposed family. Various cases have been dealt into and these can be looked upon in order to find out the necessary intention of the parties and their appropriateness for the purpose of adoption. Section 9(5) and Section 17 can be looked upon to prevent child trafficking and adoption of a child for any compensation. These ensure that the child has been adopted for his proper care and nurturing.

References


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