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This article has been written by Sushant Biswakarma, a student from Symbiosis Law School, NOIDA. This article is an in-depth research analysis of the Hindu Adoption & Maintenance Act, 1956.

Introduction

Hindu Adoption and Maintenance Act deals with the legal procedure of adoption of children by Hindu and other legal obligations that follow, including maintenance of children, wife, and in-laws. In the first part of this article, I will talk about adoption for Hindus and the second part shall deal with maintenance.

Applicability of Hindu Adoption and Maintenance Act

As per the act – a Hindu does not merely mean a person that follows Hinduism but also includes other sub-religions of Hinduism, such as- Buddhists, Jains, Sikhs, Virashaiva, Lingayat, or members Arya Samaj. Followers of Brahmo and Prarthana are also included in the definition of Hindu.

As a matter of fact, the Hindu Adoption and Maintenance Act covers everyone residing in India who is not a Christian, Muslim, Parsi or Jew.

The Act sheds light upon: 

  • What a valid adoption is? 
  • Who can adopt children?
  • Procedure to adopt children along with other duties and obligations that occur after adoption.

What is Adoption?

The Act has no description of the word “Adoption” per se, but it is a Hindu law derived from uncodified Hindu laws of Dharamsastra, specifically Manusmriti.

Adoption has been described in Manusmriti as ‘taking someone else’s son and raising him as one’s own’

Hindu Adoption and Maintenance Act has made the definition of ‘adoption’ much wider by using the word ‘child’ instead of ‘son’. Child includes both a girl and a boy child, and not merely a son.

With the change in society over time a codified and uniform legislation was required to serve the democracy, so, no adoption can be made without the procedure mentioned in this act. If any adoption is made neglecting this act, the adoption shall be rendered to be void.

Adoption will be valid only if it has been made in compliance with this Act.

Who can Adopt a child?

In order to adopt a child, the person must be a Hindu and have the capacity to adopt it. A Hindu male who wishes to adopt a child must meet the requirements provided in Section 7 of the act and a Hindu female wanting to adopt shall abide by Section 8 of the same.

The capacity of a Hindu male to adopt.

Section 7 states that a male Hindu who is willing to adopt a child must fulfil the following conditions:

  • Attained the age of majority; and
  • Be of sound mind.
  • Must have a wife that is alive whose consent is absolutely necessary. 
  • It can be overlooked if the wife is incapable of giving consent due to insanity or other reasons.
  • If a person has multiple wives, the consent of all the wives is necessary for adoption.

In Bhola & ors v. Ramlal & ors, the plaintiff had two wives and the validity of adoption was in question as he had not taken the consent of one of his wives before adopting. 

It was the contention of the plaintiff that his wife had absconded and could be considered as good as dead.

The High Court of Madras observed that the wife of the plaintiff had run away but could not be considered dead unless she had not been heard from for at least seven years. It was held that as long as the wives are alive, the consent of each wife is necessary for a valid adoption.

If the wife has converted to some other religion or renounced the world, her consent isn’t necessary for adoption. But, the existence of a living wife is an essential requirement for a Hindu male to adopt children.

The capacity of a Hindu female to adopt.

Section 8 of the act states that a Hindu Female willing to adopt a child must: 

  • Have attained the age of minority;
  • Be of sound mind;
  • Be either a widow; 
  • Divorced, or 
  • Unmarried in order to adopt.

If she has a husband who is alive, she will not have the capacity to adopt a child.

Who can give a child for adoption?

No one but the parents and guardian of the child can give them up for adoption as per Section 9 of the Hindu Adoption and Maintenance Act

As per the act:

  • Only the biological father of a child has the authority to give him up for adoption;
  • The consent of the child’s biological mother is necessary.

A mother will have the capacity to give the child up for adoption if:

  • The father is either dead;
  • Of unsound mind; 
  • Has renounced the world; or 
  • Converted to some other religion.

The section clearly mentions that the father and mother mean biological parents and not adoptive parents. Adoptive father or mother can not give the child up further for adoption.

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Can the guardian give a child for adoption?

A guardian as described in Section 9 of the act means a person appointed by the parents of a child or the court for taking care of the child and his/her property. If the child’s biological parents are either dead, have renounced the world, have lost their mind or have abandoned him – he can be given up for adoption by the guardian. 

But in order for a guardian to give up a child for adoption, he must have the permission of the court for doing so. The court for giving such permission must be satisfied that:

  1. The adoption is for the welfare of the child;
  2. No payment has been made in any form in exchange for the child.

When is adoption valid?

Under the Hindu law of adoption, only a Hindu can adopt a child if he/she abides by the essentials prescribed in Section 6 of the act:

  • The adoptive parent/s have the capacity and rights to adopt;
  • The person/s giving up the child for adoption has the capacity to do so;
  • The person being adopted has the capacity to be taken in adoption;
  • The adoption is made in compliance with the act.

Only upon meeting these requirements shall adoption be valid.

Necessary conditions to be fulfilled for:

The Hindu Adoption and Maintenance Act prescribes a set of rules for a valid adoption, which must be complied with. Such as:

Adoption of a son

Section 11(i) of the act states that if a Hindu male or female desires to adopt a son, they must not have a living son, grandson, or even a great-grandson at the time of adoption.

It is irrelevant whether the son is legitimate, illegitimate, or adoptive. They should not already have a son who is living.

Adoption of a daughter

Similar to the conditions of adopting a son – Section 11(ii) states that one wishing to adopt a daughter must not have a living daughter or a granddaughter from their son at the time of the adoption. 

It is immaterial whether the daughter or granddaughter is legitimate, illegitimate, or adoptive.

Adoption of a female child by a male

A Hindu male willing to adopt a girl child must have the capacity to adopt a child as prescribed in Section 7 of the act, and Section 11(iii) states that he must be at least 21 years older than the girl child that is to be adopted.

Adoption of a male child by a female

If a Hindu female wants to adopt a male child she must first meet the requirements prescribed in Section 8 of the act and have the capacity to adopt a child.

Also, she has to be at least 21 years older than the child she wishes to adopt.

Other conditions

When adopting a child a person must comply with some additional conditions along with all the aforementioned conditions. 

These additional conditions are basic and are very important for the welfare of the child.

  • Section 11(v) of the act says that the same child can not be adopted by multiple people at the same time.
  • Section 11(vi) states that a child that one wants to adopt must have been given up for adoption as per the guidelines of this act, by their biological parents or guardian. 
  • The Section further states that the child shall be given up for adoption with the intention to transfer him/her from their biological family to the adoptive one.
  • In the case of an abandoned child or whose parents are unknown, the intention must be to transfer him/her from the place or family that they have been brought up to their adoptive family.

Effects of adoption

Adoption will completely change the life of a child in many ways. He becomes a part of a new family and will have rights in the property as well. 

Section 12 of the act states: 

  • When a child has been adopted,
    – They shall be considered as the child of their adoptive parents for all purposes.
    – The adoptive parents shall have all the parental obligations and rights.
    – The child shall have all the rights and obligations of a son/daughter. 

However, there are some conditions that the child must abide by after he has been adopted, such as:

  • He/she must not have an incestuous relationship with anyone from their biological family, and should not marry anyone from their birth family. The rules of the Hindu Marriage Act, 1955 regarding ‘sapinda relation’ shall be applicable to them towards their birth family.
  • If the child had any property before the adoption, it shall continue to be in their possession after. However, such property may bring some obligations over him and he shall be liable to all those obligations, including having to maintain his biological family if required.
  • The adopted child shall not deprive any member of his birth family of any property that he held before the adoption.

It is important for the adoption to be valid to have any effect at all. In Sri Chandra Nath Sadhu & ors v. The State of West Bengal & ors, the High Court of Calcutta stated that a void adoption will not create any rights in the adoptive family for anyone that could have been obtained from a valid adoption, nor any existing rights will end in the child’s biological family

Rights of adoptive parents to dispose of their property 

If adoptive parents wish to dispose of their properties by transfer by gift or will, they are free to do so and adoption does not stop them. Unless there is an existing agreement that states the contrary.

Who will be the adoptive mother in case of adoption by a male?

We have already discussed that a Hindu male who has a living wife must have her consent for adopting a child. 

  • Section 14(1) of the act states that in such cases the wife shall be deemed to be the mother of the adopted child.
  • If a male who adopted the child has multiple wives, the senior-most wife shall be considered to be the mother of the adopted child while his other wives shall have the status of stepmothers as stated in Section 14(2) of the act.
  • Section 14(3) of the act states that if a child has been adopted by a bachelor or a widower, the woman he marries if he ever gets married will become the stepmother of the child.
  • A widow or bachelorette who adopts a child will be their mother and in case she gets married to anyone, the man will be deemed to be the child’s stepfather as per Section 14(4) of the act.

Can a valid adoption be cancelled?

  • When a person has opted for adoption and it has been validly made, there is no way that they can cancel the adoption. 
  • Section 15 of the act clearly states that neither the parents can cancel a valid adoption, nor the child has any right to renounce their adoption and return to their biological family.
  • Once a valid adoption is made, there is no going back. It is final.

Prohibition of payments

With the increasing child trafficking around the world, the prohibition of payments during an adoption is one of the most important rules in order to ensure that the child is not being sold.

It is stated in Section 17 of the act that no payment can be received or made during an adoption by anyone. No one shall receive any reward in monetary or non-monetary ways for adopting a child or giving them up for adoption.

If one is caught making or receiving payment in any form during the process of adoption, they shall be liable for imprisonment for up to 6 months and/or fine.

Maintenance

Now that we are done with Hindu laws of adoption in all its entirety, let’s carry on with Chapter 3 of the act that deals with maintenance.

What is maintenance?

  • Maintenance has been described in the definition clause of the act i.e, Section 3(b) as something that can provide for food, clothing, shelter, education and medical expenses. 
  • Basically, it is financial support paid by a husband or a father that covers all basic necessities of life.
  • The section also says that if the maintenance is to be provided to an unmarried daughter, it shall also cover all the reasonable expenses required in her day to day life till the day she gets married.

Maintenance of wife

The wife must be paid maintenance after divorce until she gets married again. The idea behind this is to let her live with her lifestyle and comfort that existed during her marriage, and it must be paid until she gets remarried.

There is no minimum or the maximum amount fixed for maintenance, it is to be decided by the court according to the earning capacity of the husband. 

If the husband is well to do then the maintenance shall be high in order to match the rich lifestyle the wife was used to during the marriage. 

If that is not the case, it must be a reasonable enough amount that can cover all her reasonable expenses.

When is the wife entitled to maintenance?

Section 18(2) of the Hindu Adoption and Maintenance Act provides a list stating when a wife will be entitled to maintenance. As per the Section, a wife can live separately from her husband and still have the right to claim maintenance in the following situations:

  • The husband has deserted his wife by abandoning her without any reasonable cause and without seeking her consent or deliberately ignoring her wish.
  • The wife has been subject to cruelty during her marriage and considers living with her husband to be endangering her life.
  • If the husband is suffering from an incurable and contagious disease.
  • The husband has another wife or a mistress in the same house or he lives with another wife or mistress at some other place.
  • The husband has converted to some other religion or some other reasonable grounds that can justify why the wife should live separately.

Maintenance can be paid every month or in a lump sum. Even when the wife has some source of income and some property but needs some financial aid for necessary expenses such as medical expenses. It is the obligation of the husband to pay maintenance for such expenses if required. 

The same was held by the Hon’ble Supreme Court in the case of Smt. Anita Thaukral v. Shri Satbir Singh Tkukral.

In the aforementioned case, the wife had some source of income and also had an apartment in a good location but, she was unable to make enough money to cover up her medical expenses.

The court held that:

  • The wife will use one of the debit cards of the husband, 
  • with the undertaking that she will only withdraw a reasonable amount as may be necessary for her medical expenses.

When maintenance is not to be paid to a wife?

A wife must be maintained after a divorce in order to financially support her. But, there are some exceptions to this rule.

Section 18(3) of the act states that a wife will not be entitled to maintenance:

  • If a Hindu wife has committed adultery or has any other illicit sexual relationship with anyone else, she shall not be entitled to maintenance.
  • Also, if she no longer remains a Hindu and gets converted to some other religion that does not fall under the spectrum of Hinduism.

Also, in the case of Abbayolla M. Subba Reddy v. Padmamma:

  • The defendant had two living wives,
  • The second wife was claiming maintenance,
  • A bigamous marriage is illegal under Hindu Laws,
  • The validity of the marriage of the defendant with his second wife was in question.

The High Court of Andhra Pradesh held that:

  • If a man has two wives, the marriage with a second wife will be void ab initio as Hindu laws prohibit bigamous marriage and the parties never actually become husband and wife. 
  • Therefore, the second wife will have no entitlement to any kind of maintenance as the marriage is void ab initio.

Maintenance of widowed daughters-in-law

A husband is liable to pay maintenance to his wife after they get divorced. However, if the husband is dead it is the obligation of his father to pay maintenance to his daughter-in-law.

Section 19 of the Hindu Adoption and Maintenance Act states the same, but the father-in-law shall only be liable to pay maintenance if:

  • His daughter-in-law has no sources of income;
  • She has no property to sustain herself on her own;
  • If she has some property, it is insufficient to meet her basic expenses.

In case she has no property of her own and any property of her husband, parents or children are not fetching her any maintenance.

The second clause of Section 19 also states: 

That a father-in-law shall not be liable to pay any maintenance if:

  • He is not able to do so from any coparcenary property in his possession; 
  • The daughter-in-law has no share in that property, and such obligation will end if she gets remarried.

Maintenance of children and aged parents

People who cannot earn money for themselves due to reasonable grounds need to be given maintenance in order to meet their basic necessities. Such people can include children and old people.

Section 20 of the act states: 

  • A Hindu male or female is obligated to maintain their children whether they are legitimate or illegitimate.
  • Children shall claim for maintenance from their parents as long as they are minor. 
  • An unmarried daughter shall be entitled to maintenance even after attaining the age of majority, till the day she gets married.

The section further prescribes that: 

  • Parents who are old or have physical or mental weakness need to be maintained if they are not able to maintain themselves. 
  • A childless stepmother will also be considered a ‘parent’ in the context of this section.

In the case of Mst. Samu Bai & anr v. Shahji Magan Lal, the High Court of Andhra Pradesh held that:

The maintenance to aged and infirm parents must only be provided if the parents have no means to sustain themselves, or are unable to maintain themselves out of their own property or earnings. So, we can infer that if the old parents have enough means to maintain themselves, the obligation of children to maintain them can be relaxed.

Maintenance of dependants

Dependents of a deceased must be maintained if they do not have the capacity to do so by themselves. Section 21 of the act defines dependents and Section 22 states that such persons shall be entitled to maintenance.

Who are dependents?

Dependent is someone who relies on parents, brother or some other relative for sustaining themselves.

Section 21 of the act says that in the context of this act dependents refer to the following relatives of the deceased:

  • A father.
  • A mother.
  • A widow who has not remarried.
  • A minor son, grandson, or great-grandson with predeceased father and grandfather. Provided he has not been able to obtain maintenance from any other source.
  • Unmarried daughter, granddaughter, or great-granddaughter with predeceased father and grandfather. Provided she has not been able to obtain maintenance from any other source.
  • A widowed daughter who has not been able to obtain maintenance from the estate of her husband, children, or from her in-laws.
  • Widowed daughter-in-law, or widowed granddaughter-in-law, who has not been able to obtain maintenance from any other sources.
  • An illegitimate minor son or illegitimate unmarried daughter.

Do dependents need to be maintained?

Now that we have already seen who dependents are and why they need maintenance, let us proceed further and see how to maintain them and who is obligated to maintain them.

Section 22 of the act states:

  • That dependents of a deceased Hindu must be maintained by his heirs with the aid of the estate that they inherited from the deceased.
  • When the dependents have not been left with any share in the property or estate by way of will or succession, they are still entitled to be maintained by whoever takes over the estate.
  • If multiple persons have taken over the property of the deceased, each one of them will be liable to maintain the dependents. 
  • The amount of maintenance to be paid will be divided among them depending on the value of the share they hold in that property.
  • In case a dependent has obtained some part of share in the property of the deceased, they will not be liable to maintain other dependents. 
  • Others who have taken over the property will still have to maintain other dependents but the dependent holding a share shall be excluded and maintenance will now be paid from the remaining property.

Amount of Maintenance

There is no fixed amount for maintenance that shall be paid. It is at the discretion of the court to determine the amount of maintenance. 

Section 23 of the act states that while deciding the amount of maintenance to be awarded to a wife, children, or old and infirm parents – the court must do so considering the following:

  • Status of parties and their current position;
  • The claims of the parties within reasonable limits;
  • If the claimant living separately have justified grounds in doing do;
  • All sources of income of the claimant and the value of their property;
  • The number of people that are entitled to be maintained.

Section 23(3) further simplifies the process of deciding the amount of maintenance payable to other dependents. It says that the amount of payment to be made should be with regard to:

  • The net value of the deceased’s property after clearing off all his debts;
  • Will of the deceased if any;
  • Degree of the relationship between the claimant and the deceased and their past relationship;
  • What the dependents want within reasonable limits;
  • All sources of income of the dependent and the total value of all their properties;
  • The number of dependents that can be entitled to maintenance.

Alteration of the amount due to change in circumstances

The amount of maintenance to be paid can be decided by the court or by an agreement between the parties. 

Maintenance is paid to provide aids for the basic needs of everyday life in case a person does not have the source or ability to provide for themselves. 

Section 25 of the act states that the amount of maintenance may be altered with the change in circumstances. 

But, the section is vague. It does not say on what changes in circumstances can the alteration be sought and how the alteration can be done.

In the case of Binda Prasad Singh v. Mundrika Devi, the High Court of Patna observed that there was no set procedure mentioned in Section 25 as to how the amount can be altered. 

The court stated that:

  • The amount of maintenance is fixed either by an agreement or by way of a decree. 
  • The only way to alter an agreement is by way of another agreement, and the decree can be altered by amendment of degree.
  • So, another suit must be filed for altering the amount of maintenance and a new decree that supersedes the older one must be granted if the court thinks fit.

The claimant of Maintenance should be a Hindu

The Hindu Adoption and Maintenance Act has been legislated for the Hindus and has the power and authority to govern only people that belong to the Hindu religion. 

If any of the party is not a Hindu or has ceased to be one, they cannot claim maintenance as per this act. 

Section 24 of the Act says:

  • No one will be entitled to claim maintenance under the Hindu Adoption and Maintenance Act if they have ceased to be a Hindu by converting themselves to some other religion.

Can maintenance be a charge?

The Hindu Adoption and Maintenance Act has no per se definition of “Charge”.

However, we can refer to Section 100 of The Transfer of Property Act, 1882, wherein charge has been defined as:

  • Making immovable property security for payment of money to a person. Such a transaction will not be considered as a mortgage but will be said to have a charge on the property.

Section 27 of the Hindu Adoption and Maintenance Act states that:

  • A dependent’s claim for maintenance must not be a charge on the deceased’s estate unless otherwise provided in a will of the deceased or an agreement between the deceased and the dependent.

In the case of Kare More Sharabanna Rudrappa & ors. v. Basamma & ors, it was held that: 

  • A person’s wife and children who are entitled to be maintained out of his property must be paid maintenance by making a charge over his property that he possesses, and 
  • Out of those properties that have been transferred gratuitously in order to avoid responsibilities.

In the case of Gangubai Bhagwan Kolhe v. Bhagwan Bandu Kolhe, it was held that:

  • If a wife is entitled to maintenance she can recover it from her husband’s estate even after his death.
  • It was further held that if the husband’s estate is enough to maintain herself then a charge can not be made over that property, but if it is not enough, then it is necessary to keep a charge in order to recover her maintenance.

As judicial precedent has the power to supersede the legislation, maintenance can be a charge with or without any agreement or will of the deceased. 

Debts to have priority

If there is a charge on the estate of the deceased, the money must first be used to clear out all the debts that are payable by the deceased, as per Section 26 of the Hindu Adoption and Maintenance Act. Under Hindu law payment of one’s debts is considered essential for the salvation of their soul and so one’s duty to pay their debts back has a religious connotation.

In the case of Kripal Singh v. Balwant Singh, it was held by the court that such debts shall be binding on the son which is not: 

  • Immoral, 
  • Illegal,
  • Opposed to public policy, or 
  • Agreed upon due to a reckless borrowing of money for no reasonable grounds or for deliberate waste.

It is the religious, moral, and legal duty of the dependents to pay off the debts of the deceased before using the money for maintaining themselves.

Effect of transfer of property on rights to maintenance

A dependent who is entitled to receive maintenance from a property or an estate and the very estate gets transferred, it becomes the obligation of the transferee to maintain the dependent if the transferee has received a notice regarding that right or if the transfer is without any reasonable grounds.

Section 28 of the Hindu Adoption and Maintenance Act states that:

  • The transferee has to maintain the dependent out of the property he received if he has the notice of the right or the transfer is gratuitous.

This idea flows from Section 39 of the Transfer of Property Act, 1882 which says that:

  • If a third person is entitled to be maintained from the profit made out of immovable property and such property is transferred, the transferee will be liable for the payment of such maintenance if there was a notice or if the transfer is gratuitous. 
  • But, if the property was transferred for consideration and notice was not provided regarding the maintenance then the transferee will not be liable to make any payments for maintenance.
  • The maintenance can only be recovered from the property transferred by the person who was originally liable to pay maintenance and cannot be recovered from any other property that the transferee holds.

This act is one of the most important acts that protect the rights of children during the course of adoption. It protects women, children, old & infirm from living on the streets and starving to death. It ensures they are maintained by someone and the judicial pronouncements have further strengthened the act in order to make our rights stronger and sections much clearer.

References

Cases

Bare Acts

Books

  • Dr Saxena. Poonam, Family Law Lectures, ed. 3, LexisNexis, 2011.

Online Sources


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