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FACULTY OF LAW

JAMIA MILLIA
ISLAMIA
Hindu Law

Adoption

Submitted By:SANA ANWAR


B.A.LL.B(Hons)
3rd Year/5th Semester

ACKNOWLEDGEMENT

I would like to thank my teacher of Hindu Law, Mrs. KehkashaDaniyal, for


helping me with my project.
I want to give special thanks to the librarian of my university who made every
relevant material regarding my topic available to me at the time of my research
work and gave me assistance.
I would also like to thank my family and friends for their constant support and
guidance for this project.

Sana
Anwar

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CONTENTS
1.Introduction
2. hindu law adoption

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INTRODUCTION
-The Hindus have regarded the institution of sonship as important as the institution of marriage.
To have a son was considered a 'must' for every Hindu. Begetting a son was one of the three
debts (debts to the names i.e ancestors) that a Hindu was required to discharge in this world.
Just as a marriage was never considered a purely secular act, so was sonship. Son is called a
putra because the son delivers his father from hell, called 'put1Baudhayana declared : Through a
son one conquers the world, through a grand-son one obtains the immortality, and through the
great-grandson one ascends to the highest heaven."2
Adoption is the legalized recognition of a person as son 3.According to Hindu notions, a son is
necessary to a person not only to continue the linage but also to offer oblations to the manes or
ancestors to the fourth degree. The person adopted has all the privileges of a natural born son
except there was a reduction in the share of property, different according to different schools, if a
natural son was born subsequent to adoption4.
On adoption, adoptee gets transplanted in adopting family with the same rights as that of the
natural born son. Adopted child becomes coparcener in the Joint Hindu Family property after
severing all his ties with natural family5.
Some judges hold that the object of adoption is twofold: to secure performance of ones funeral
rights and to preserve the continuance of ones linage6. Under Hindu law, there were many rules
relating to adoption which could be supported only on the basis that adoption was a sacramental
1Manu V. 138.
22, 16, 6 See also Manu IX , 137-138; Vishnu XV, 44, 46; Yajnavalkya 1, 78.
3 Sharma, Dr. Basant, K., Hindu Law, 2nd Ed., Central Law Publications, Allahabad, 2008. p. 193.
4 Raghunath Behera v. Balaram, AIR 1996 Ori. 38.
5 Basavarajappa v. Gurubasamma, (2005) 12 SCC 290.
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act. For instance the following rules could only be supported only on this basis: the adopted son
must be a reflection of a son (saunaka): this prevented the adoption of orphans and illegitimate
children; daughter could not be adopted: no one could have more than one adopted son; one
could not adopt a child whose mother one could not marry when she was a maiden; thus a
daughters son or sisters son could not be adopted as one could not marry his sister or daughter 7.
The same seems to be the reason for the rule that when a widow adopted a son, it was always
deemed to be adoption to her deceased husband. The principle is responsible for the doctrine of
relation back.
The Hindu Adoptions and Maintenance Act, 1956, has steered clearly off from all
religious and sacramental aspects of adoption and has made adoption a secular institution and
secular act, so much so that even a religious ceremony is not necessary for adoptions. Under
the legislation there cannot be two types of adoptions, one purely secular and the other
sacramental. All adoptions after 1956 are secular, and to be valid, must conform to the
requirement of the Act.
MEANING OF ADOPTION
Adoption means the process through which the adopted child is permanently separated from
his biological parents and becomes the legitimate child of his adoptive parents with all the rights,
privileges and responsibilities that are attached to the relationship. Adoption of orphan, abandoned
and surrendered children in India is governed by a set of guidelines notified by Government of
India.
Adoption is the transplantation of a son from the family in which he is born, to another
family where he is given by the natural parents by way of gift. The adopted son is then taken as
being born in the new family and acquires rights, duties and status there only, and his tie
with the old family comes to an end. The concept of adoption is concerned with Hindus
only. Concept of adoption can be traced even from Vedic times. The ancient texts Dattaka
6 Inder Singh v. Kartar Singh, AIR 1966 Punj. 258.
7 Diwan, Paras, Modern Hindu Law, 20th Ed., Allahabad Law Agency, Allahabad,
2009. p. 234.
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Mimamsa, Dattaka Chandrika, Manu, Yagnavalkya, Gautama, Baudhayana, and Kautilya etc well
refer to this concept.
The adoption is not an institution peculiar to Hinduism, but owes its origin to the
social communism peculiar to the primitive races. In early times, children irrespective of their
sex were taken in adoption

Hindu law adoption


Adoption is the admission of a stranger to the privileges of a child by birth- a legally
recognized form of affiliation. The adopted son is uprooted from his natural family and
transplanted in to adoptive family like a natural son. Adoption is a process to incorporate
a child permanently into a family with all the rights of a natural child, in which he was not
been born. Traditionally, a child was adopted for temporal and spiritual purposes and
more recently, to satisfy the emotional and parental instincts of the adopters. Manu says, By a
son, a man attains victory over all people; by a son's son he enjoys immortality; and thereafter
by the son of that grandson he reaches the solar abode. The Shastric Hindu Law looked
at adoption more as a sacramental than secular act. Hindus believed that one who died without
having a son would go to hell called poota and it was only a son who could save the father from
going to Poota. This was one of the reasons to beget a son.
In the ancient era, things were difficult as there was a societal stigma attached to the concept and
the practise of adoption of a stranger child into ones own family. It was regarded as a symbol of
impotency to the male member and a lot was to be suffered by the woman of the family who was
blamed for giving birth to only female child not a male child. Whereas it is so well proven that it
is the chromosome of males that is actually a determinant factor of the sex of the baby to take
birth.
The woman has suffered a lot at the hands of their incapacity to give birth to a male child. Hence
conversely we can very well assert the fact that the people of ancient era had a great affinity
towards a male child.
There were two reasons why a male child or rather a son was necessary to be existing in a
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family. The reasons are twofold; firstly to secure ones performance of funereal rights.
The ancient foregoing myth that has existed long way back in our so called pragmatic
society is that if a mans funereal is not done by his son then he would never get a place in
the heaven and that his soul would never rest at peace and that he would never attain
immortality and for preservation and the continuance of lineage. Lineage refers to the
concept of continuance of ones own family name. Hence, if a man would die sonless, it is
assumed that his family name would end at his death and hence there is requirement of a
male child in the continuance of family name. So at that juncture of time there was
requirement of a male child in the family and hence the person used to adopt only a male
child. There was no provision for the adoption of a female child.
Ancient Hindu Shastras recognized Dattaka and Kritrima as types of sons. Dattaka son
were further sub divided into two types Datttaka Chandrika and Datttaka. .Datttaka
Chandrika was the adoption not so necessary, adoption which was optional. Datttaka
Shishoma was the adoption that was compulsory for the performance of the funereal rights
and for the continuance of the lineage. In the Hindu Shastras, it was said that the adopted
son should be a reflection of the natural son. This guaranteed protection and care for the
adopted son. He was not merely adoptive parents, but all relations on the paternal and
maternal side in the adoptive family also came into existence. This means he cannot marry
the daughter of his adoptive parents, whether the daughter was natural-born or adopted. In
the modern adoption laws, the main purpose is considered to be to provide consolation
and relief to a childless person, and on the other hand, rescue the helpless, the unwanted,
the destitute or the orphan child by providing it with parents.

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ADOPTION UNDER HINDU LAW: PRESENT


STATUS
The present scenario of adoption is far away from the sacramental aspect. The present rule
of adoption is governed by the rules and regulations prescribed by the statutory laws laid
down by the legislators. Currently, the adoption under Hindu Law is governed by The
Hindu Adoption and Maintenance Act, 1956.The Hindu Adoption and Maintenance Act,
1956 extends to only the Hindus, which are defined under Section-2 of the Act and
include any person, who is a Hindu by religion, including a Virashaiva, a Lingayat or a
follower of the Brahmo, Prarthana or Arya Samaj,or a Buddhist, Jaina or Sikh by
religion, to any other person who is not a Muslim, Christian, Parsi or Jew by religion. It
also includes any legitimate or illegitimate child who has been abandoned both by his
father and mother or whose parentage is not known and who in either case is brought up as a
Hindu, Buddhist, Jaina or Sikh.Adoption is recognized by the Hindus and is not recognized by
Muslims, Christian and Parsi.
The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to
minority and guardianship. As in the case of unmodified law, it has upheld the superior right of
father. It lies down that a child is a minor till the age of 18 years. Natural guardian for both boys
and unmarried girls is first the father and then the mother. Prior right of mother is recognized
only for the custody of children below five. In case of illegitimate children, the mother has a
better claim than the putative father. The act makes no distinction between the person of the
minor and his property and, therefore guardianship implies control over both. The Act directs
that in deciding the question of guardianship, courts must take the welfare of child as the
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paramount consideration. Section 6 of the said Act, provides about the natural guardians of a
Hindu minor. Section 7 of the very Act speaks about the natural guardianship of adopted son.

STATUTES GOVERNING ADOPTION IN


RECENT TIMES: HINDU LAW
1) The Hindu adoption and Maintenance act, 1956
Adoption in the Hindus is covered by The Hindu Adoptions Act and after the coming of this Act
all adoptions can be made in accordance with this Act. It came into effect from 21st December,
1956. Prior to this Act only a male could be adopted, but the Act makes a provision that a female
may also be adopted. This Act extends to the whole of India except the state of Jammu and
Kashmir. It applies to Hindus, Buddhists, Janis and Sikhs and to any other person who is not a
Muslim, Christian, Parsi by religion.
The Hindu Adoptions and Maintenance Act (HAMA), 1956, provides for adoption of
Hindu children by the adoptive parents belonging to Hinduism. This is not applicable to
other communities like Muslims, Christians and Parsi. They have to recourse to Guardians
and Wards Act, 1890, wherein they become guardians of children. But the child does not
have the status as it would have had, had it been born to its adoptive parents. One of
features of this Act is that no Hindu person can adopt a son or daughter, if they already
have a child of that sex. Often the intentions behind the law are good, but the methods
adopted fall short. The HAMA provides that there should be an age difference of 21 years
between the adoptive parents and the adopted child whenever they are of opposite sex. This is
intended to prevent sexual abuse.
Requirements for a valid adoption

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Section 6 enumerates the requisites of a valid adoption. It lays down that no adoption
shall be valid unless the person adopting has the capacity as also the right to take in adoption; the
person giving in adoption has the capacity to do so; the person adopted is
capable of being taken in adoption, and the adoption is made in compliance with the other
conditions mentioned in Chapter II. In the Hindu law the requirements for a valid adoption. The
Act reads:1. The person adopting is lawfully capable of taking in adoption
2. The person giving in adoption is lawfully capable of giving in adoption
3. The person adopted is lawfully capable of being taken in adoption
The adoption is completed by an actual giving and taking and the ceremony called datta homan
(oblation to the fire) has been performed. However this may not be essential in all cases as to the
validity of adoption?
Who May Adopt
Capacity of male (Section 7)
Section 7 of the Hindu Adoptions and Maintenance Act, prescribes the general capacity of
a Hindu male to take a son or a daughter in adoption if he is of sound mind and not minor.
Similarly, section 8 of the Act empowers a female Hindu to take a son or daughter in
adoption subject to the fulfillment of conditions prescribed in the Act. Section 10 speaks
about the persons who may be adopted. This section provides that a child male or female
is capable of being taken in adoption if he or she is a Hindu and not already been
adopted. Any male Hindu, who is of sound mind and is not a minor, has the capacity to
take a son or daughter in adoption. Provided that if he has a wife living, he shall not adopt
except with the consent of his wife, unless his wife has completely and finally renounced
the world or has ceased to be a Hindu, or has been declared by a court of competent
jurisdiction to be of unsound mind. If a person has more than one wife living at the time of
adoption the consent of all the wives is necessary unless the consent of one of them is
unnecessary for any of the reasons specified in the preceding provision. The 1956 Act now
provides for adoption of boys as well as girls. By virtue of the proviso to Section 7, the consent
of wife has been made a condition precedent for adoption by a male Hindu. The mandatory
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requirement of the wife's consent enables her to participate in the decision making process which
vitally affects the family. If the wife finds that the choice of the person to be adopted by the
husband is not appropriate or is not in the interest of the family then she can veto his
discretion.
Capacity of female (Section 8)
Any female Hindu
1. who is of sound mind,
2. who is not a minor, and
3. Who is not married, or if married, whose marriage has been dissolved or whose husband
is dead or has completely and finally renounced the world or has ceased to be a Hindu, or
has been declared by a court of competent jurisdiction to be of unsound mind, has the
capacity to take a son or daughter in adoption. Where the woman is married it is the
husband who has the right to take in adoption with the consent of the wife. A female
Hindu who is of a sound mind and has completed the age of eighteen years can also take
a son or daughter in adoption to herself and in her own right. After the Personal laws
(Amendment) Act 2010, a females right to adopt has been brought at par with the males
rights.
Who may give a child in Adoption
No person except the father or mother or guardian of the child shall have the
capacity to give the child in adoption. The father alone if he is alive shall have the right to
give in adoption, but such right shall not be exercised except with the consent of the
mother unless the mother has completely and finally renounced the world or has ceased to
be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound
mind. The mother may give the child in adoption if the father is dead or has completely
and finally renounced the world or has ceased to be a Hindu, or has been declared by a
court of competent jurisdiction to be of unsound mind. 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
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where the parentage of the child is unknown - the guardian of the child may give the child
in adoption with the previous permission of the court.

The court while granting

permission shall be satisfied that the adoption is for the welfare of the child and due
consideration will be given to the wishes of the child having regard for the age and
understanding of the child. The court shall be satisfied that no payment or reward in
consideration of the adoption except as the court may sanction has been given or
taken.
WHO MAY BE ADOPTED

No person can be adopted unless:

1. he or she is a Hindu;
2. he or she has not already been adopted;
3. 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;
4. 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

Thus, these are the rules and regulation prescribed for determining as to what is the capacity to adopt,
to give in adoption and to be adopted.

Other conditions for a valid adoption (Section 11)

The other requirement for the adoption to be rendered as valid are that while adopting a child one
must take into consonance and consideration the following points.
1. if the adoption is of a son, the adoptive father or mother by whom the adoption is made
must not have a Hindu son, son's son or son's son's son living at the time of adoption;
2. if the adoption is of a daughter, the adoptive father or mother by whom the adoption is
made must not have a Hindu daughter or son's daughter living at the time of adoption;
3. if the adoption is by a male and the person to be adopted is a male, the adoptive father is
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at least twenty one years older than the person to be adopted;


4. if the adoption is by a female and the person to be adopted is a male, the adoptive
mothers at least twenty one years older than the person to be adopted;
5. The same child may not be adopted simultaneously by two or more parents; the child to
be adopted must be actually given and taken in adoption with an intent to transfer the
child from the family of birth.

EFFECTS OF ADOPTION

In case there is absence of compliance of any one of these rules prescribed by the stature The Hindu
adoption and maintenance Act, 1956, the adoption would not be considered as valid adoption.
Section 12 declares that from the date of the adoption, an adopted child is deemed to be a child of
his/her adoptive father or mother for all purposes and his ties in the family of his or her birth shall
stand severed and replaced by those created in the adoptive family. In Kartar Singh V. Gurdial Singh8
where the respondent who was adopted by his maternal grandfather claimed property rights in the
family of his birth, the court said that upon adoption no rights remain in the family of birth.
Proviso (a) to this section contains a restriction on the marriage of adopted child with a person to
whom he or she could not have married if he or she had continued in the family of his or her birth.

Clause (b) of the proviso saves the vested right of the adopted child in the property subject
to the obligations, if any, attached to the ownership of such property, including the obligation to
maintain relatives in the family of his or her birth.
Likewise, clause (c) to the proviso lies down that the adopted child shall not divest any
person of any estate vested in him or her before the date of adoption. Section16 which
embodies a rule of presumption lays down that whenever any document registered under
any law for the time being in force evidencing adoption and signed by the person giving
and person taking the child in adoption is produced before any court, then it shall presume
that the adoption has been made after complying with the provisions of the Act unless
8 (2008) 1 HLR 657 (P&H)
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proved otherwise.

Welfare of minor is of paramount consideration

According to Section 13, the adoptive child gets property rights in his new family, but 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, unless there is an agreement imposing such
restriction
Adoption once made is final and irrevocable. An adoption validly made cannot be cancelled by the
adopter, natural parents or any other person. Nor can an adopted child renounce his adoptive parents
and return to the family of his or her birth. This means that if a person makes an adoption, under no
circumstances he or she gets rid of the child. An adopted child cannot again be given in adoption.
Once an adoption has been duly made in accordance with law, it cannot be cancelled nor can the
adopted child, the adoptive parents and the natural parents destroy the right of the adopted.
Restrictive Conditions of Adoptions
Section 11, Hindu Adoptions and Maintenance Act.Just because a person has capacity to
adopt, it is not necessary that he has also the right to make an adoption; certain restrictive
conditions exist. These conditions are ;
{a) Adoption of son.Adopter must not have a Hindu son, son's son or son's son's son. If he has
any one of these, he cannot make an adoption. Son or son's son or son's son's son may be by
legitimate birth or by adoption. If the son, son's son or son's son's son has ceased to be a Hindu,
an adoption of a son will be valid.9
(b)Adoption of daughter.If a Hindu wants to adopt a daughter, it is necessary that he must not
have a Hindu daughter, or a son's daughter. Existence of an adopted daughter or son's adopted
daughter will also bar the adoption of a daughter. But if daughter or son's daughter has ceased to
be a Hindu, adoption of a daughter can be validly made.10
9Section 11(i)
10Section 11(ii)
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These restrictive conditions were challenged in SandhyaSupriyaKulkamiv. Union of India11While


upholding the provisions as personal laws do not fall within the ambit of Part III of the
Constitution, the Bornbay High Court observed that Parliament ought to re-examine the question
to relax these conditions.

c) Two persons cannot adopt the same child.Two persons cannot adopt the same child.12 Two
persons do not mean husband and wife, as in such a case, both are adoptive parents of the child.13
Here, by two persons we mean other than husband and wife, such as two sisters, two brothers or
two friends. This also means that the child cannot continue to be a son or daughter, as the case
may be, in his natural family as well as in the adoptive family. A child can have only one mother
or one father whther natural or adoptive.

d) Age difference between the parent and child.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.14 Violation of this
requirement renders the adoption void.15 This is meant to prevent people from abusing the
adopted child.

11 AIR 1998 Bom 228.


12Section 1(vi); Vithal v. Ausabai 1977 Bom 298
13Kasturi v. Ponnammal 1961 SC 1320.
14 Clauses (iii) & (iv) of Section 11.
15Golak v. Kruitbas 1979 Ori 205.
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2) THE PERSONAL LAWS AMENDMENT, ACT, 2010


After the enactment of The Hindu adoption and maintenance Act, 1956, the various
sections of these statutory provisions underwent several amendments. The statute was put
into scrutiny and thence proposals for amendment were made. These proposals were then
incorporated through the personal laws amendment, Act, 2010.Thus, here in this part of
this project we are going to discuss the amendments that have been already incorporated
about this statute.

Amendment of section 8
In the Hindu Adoptions and Maintenance Act, 1956 (hereafter in this Chapter referred to as the
Hindu Adoptions and Maintenance Act), for section 8, the following section shall be substituted,
namely:
"8. Capacity of a female Hindu to take in adoption - Any female Hindu who is of sound mind and is
not a minor has the capacity to take a son or daughter in adoption: Provided that, if she has a husband
living, she shall not adopt a son or daughter except with the consent of her husband unless the
husband has completely and finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be of unsound mind.".

Amendment of section 9 -

In the Hindu Adoptions and Maintenance Act, in section 9,

(i) For sub-section (2), the following sub-section shall be substituted, namely:
"(2) Subject to the provisions of sub-section (4), the father or the mother, if alive, shall
have equal right to give a son or daughter in adoption: Provided that such right shall not
be exercised by either of them save with the consent of the other unless one of them has
completely and finally renounced the world or has ceased to be a Hindu or has been
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declared by a court of competent jurisdiction to be of unsound mind."; (ii) sub-section (3)


shall be omitted.

3) HINDU MAINTENANCE & GUARDIANSHIP ACT, 1956


The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to minority
and guardianship. As in the case of unmodified law, it has upheld the superior right of father. It lays
down that a child is a minor till the age of 18 years. Natural guardian for both boys and unmarried
girls is first the father and then the mother. Prior right of mother is recognized only for the custody of
children below five.
In case of illegitimate children, the mother has a better claim than the putative father. The
act makes no distinction between the person of the minor and his property and, therefore
guardianship implies control over both. The Act directs that in deciding the question of
guardianship, courts must take the welfare of child as the paramount consideration. Section
6 of the said Act, provides about the natural guardians of a Hindu minor. Section 7 of the very Act
speaks about the natural guardianship of adopted son.
Guardianship, Inheritance and Maintenance

Guardianship, Inheritance and Maintenance


The adoptive parents are the natural guardians of the adopted minor child, first the father, then the
mother. If the adopted child is less than five years, then the adoptive mother will have preferential
claim to the custody of the child.
The child has the same right of maintenance as that of the natural born child against
the adoptive parents. In the same way, the child is also under obligation to maintain his
adoptive parents16. The childs right to maintenance ceases on his attaining majority17.
16 Sharma, Dr. Basant, K., Hindu Law, 2nd Ed., Central Law Publications, Allahabad,
2008. p. 215.
17 Nanda Kishore v. Bhupendra, 1966 Cal. 181
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Right of Inheritance and Partition: Under old law, if an aurasa son was born to the
parents after adopting a son, the adopted son was in an inferior position and took a lesser
share on partition which differed from school to school18. But now it seems that by virtue of Section
12, he will be equally entitled.

CEREMONIES OF ADOPTION
S.ll(vi), Hindu Adoptions and Maintenance ActFor the validity of an adoption, performance of
necessary ceremonies is essential.19 Before 1956, two ceremonies were considered to be
necessary : (a)The ceremony of giving and taking, and (b) DattaHoma. There was a controversy
whether the latter was an obligatory ceremony.20The DattaHomaisno longer-a necessary
ceremony.21
Ceremony of giving and taking.This ceremony has to be performed by the person who gives
the child in adoption whether he is father, mother or guardian, and be the person who rakes the
child in adoption. According to Baudhayana :
One should go to the giver of the child, and ask him, saying 'Give me thy son'. The other
answers, I give Him. He receives him with these words, 'I take thee for the fulfilment of my
religious duties : I take thee to continue the line of my ancestors.'22
The DattaMimansascomment is as under :

18 Ratha Behera v. Ganga Behra, AIR 2003 (Ori.) 532


19Urmila v. Hemunta, 1993 Ori 213; Pappama v. Madappa, 1993 Kant 24.
20 According to Baudhayana, Vasistha and Saunaka both were necessary
ceremonies; See, DattakaMimansa. V 30, 31, 42 and DattekaChandrika, 2, 16;
Madhusudan v. Narapam, 1983 SC 114.
21 Proviso to S. ll(vi); See also DhaniBai v. Neem, 1972 Raj 9.
22II 7-9
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It is, therefore, established that the filial relation of adopted son is occasioned only by the proper
ceremonies, of gift, acceptance, homaand so forth, should either be wanting, the filial relation
even fails.23 Proof of a ceremony of giving and taking is essential.24
Before 1956, the courts took the view that the ceremony of giving and taking was indispensable,
though the actual words in the text of Baudhayana might not be used. Section ll(vi) expresses the
same thus : "The child to be adopted must be actually given and taken in adoption by the parents
or guardian concerned or under their authority with intent to transfer the child from the family of
its birth or, in the case of an abandoned child or a child whose parentage is not known, from the
place or family where it has been brought up to the family of its adoption." The ceremony of
giving and taking is indispensable in modem Hindu law.25 Mere fact that adoptee and adopter had
joint accounts does not prove adoption.26 The ceremony of giving and taking is necessary even
when the person to be adopted is an adult.27Thus, the ceremony of giving and taking must be
performed :
(a) by the giver and taker, or
(b) by any other person under the authority of the giver or taker, as the case may be.
Delegation of authority.It should be noted that the performance of the ceremony can be
delegated but not the power to give or take in adoption. The power is to be exercised by the
person who is entitled to give the child in adoption and the person who wants to take the child in
adoption. In NarinderjitKaurv. Union of India,28adoption was held valid when the child was
willingly given so by the natural parents and adoptive mother adopted the child through an
23 See also DattakaMimansa, V. 50-67.
24Arjun v. Buchi, 1995 Ori 23; Raghunath v. Balaram, 1996 Ori 38.
25Nemei v. Uttam, (1973) 1 CWR 68; Kartar Singh v. Surjnn Singh, AIR 1974 SC
2161; Kashi v. Mahadeo, 1977 Pat 199; Priyokumar v. Wangheimayuma, 1975
Gauhati 65.
26 Jai Singh v. Shakuntala, 2002 SC 1428.
27Dhanraj v. Suraj Dai, 1973 Raj 7.
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attorney. It seems that no specific Shastricor customary ceremony is necessary. Performance of


customary ceremony such as feeding the child in the lap or pugritying with or without offering to
Brahmans or the sacred fire or saffron-water drinking may indicate the intention of transferring
the child in adoption, but so long as the intention is manifest, no particular form is necessary.29
May be, in the course of time some specific ceremony evolves in modem Hindu law. The
evolution of the ceremony may be something like this : the giver of the child lifts the child in his
arms and places it in the lap of adoptive parent saying, I give this child in adoption to thee', and
the taker says, I accept this child as my adopted son (or daughter)'.

Registration of adoption.Neither under the old law nor under the modem law registration of
adoption is obligatory, though parties are free to enter into a registered deed. Under the pre-1956
law, the registered deed of adoption was corroborative evidence that an adoption had taken place.
Under Section 16 of the Hindu Adoptions and Maintenance Act, 1956, a registered document of
adoption raises a presumption that the adoption has been made in compliance with the provisions
of the Act,30 and it would be presumed that necessary ceremonies have been performed.31 This
presumption may be rebutted by the persons challenging the adoption.32 Under Section 16, the
court shall presume that a valid adoption has been made, whenever a registered document
purporting to record an adoption is produced before it, unless the plaintiff disproves it.33 The
281997 P & H 28.
29Lakshman v. Rup, 1981 SC 1378.
30 K. Srinivasan v. Srinivasan, (1973) 2 SCC 327; AjitabUddin v. Chandan, 1977 On
69; Arakkita v. Kandhuni, 1988 Ori 199.
31 If the adoption has taken place, it would be presumed that necessary ceremonies
have been performed.
32Subudhie v. Noanchade, 1973 Ori 3; Balooram v. Ram Lai, 1989 MP 198.
33 Annapurna v. Narendram, 1976 Ori 129 To the same effect are Basudeo v. Ram,
(1968) 70 PUR 535; Gopi v. Modem, 1970 Raj 199 Gopal v. Kamla, 1972 MP 193;
Ram Jagat v. Kanchan Dew. 1964 All 44.
20 | P a g e

word 'shall' is crucial and presumption would be there unless and until it is disproved.34
However, the onus is on the defendant to prove that the document was read over and explained to
the plaintiff and that there was good faith in execution of the document. If execution of the
adoption deed is challenged on the ground of fraud or undue influence, the burden of proof is on
the party who alleges fraud and coercion.35 If in adoption the registered adoption deed had not
been signed by natural father, no presumption arises under Section l6.36 If adoption itself is
disproved or when it is shown that the adoption deed was not executed voluntarily, the
presumption under Section 16 is rebutted.37 It an adoption is challenged long after it has been
made and it has all along been recognized by members of the family as valid adoption, the
burden to rebut the presumption of valid adoption is very heavy on the person who challenges it.
If there is a registered deed, the onus is on the person who challenges an adoption. Recital in a
will about a person being an adopted son is a piece of admissible evidence, but not conclusive
proof of adoption.38 The one who alleges that the valid ceremonies of adoption have not taken
place has to prove it.39

34NilimaMukherji v. KantaBhushanGhosh, 2001 SC 2725.


35Sushil v. Bhoop. 1977 All 447
36Romu v. Deputy Director, Consolidation, (1981) AH LR 274; Krishnabei v. Ananda,
1981 Born 240.
37Govinda v. ChimaBai, 1968 Mys 309; Shtdappa v. Gmyappa, 1973 Mys 254; Naidu
v. Naidu. 1969 Mad 239; Bisvanath v. Dhapu, 1966 Cal 13; Madan v. Sham, 1973 P
8t H 122.
38Banmarilal v. TriloK Chand, 1980 SC 419.
39Devgonda v. Shamgonda, 1992 Born 189.
21 | P a g e

Proof of adoption.An adoption is to be proved like any other fact.40 But in case of old
adoptions, presumption of validity arises. In the absence of a registered adoption deed, adoption
must be proved by some cogent evidence.41 But absence of registered deed does not nullify the
adoption. Evidence of relevant witnesses is enough. It is not necessary that everyone who is
present at the time of-adoption should be examined.42
In PentakotaSatyaNarayanav. PentakotaSeetharathnam43, alleged adoption was made by the
husband and the first wife who was estranged at the time of adoption. The estrangement between
the spouses was due to the second wife taken by the husband. Through the second wife the
husband had three children. The first wife though claimed maintenance for herself never claimed
maintenance for the "adopted child". Under the circumstances adoption was held not to be
proved.
Where the child all along lived with natural parents, name of natural parents was in the school, it
was held that the adoption deed was fraudulent.44 Where adoption ceremony was proved by
witnesses, adoption deed was executed and registered, such adoption was held proved.
Relationship of Adopted ChildSection 14
Section 14 lays down as to how an adopted child will be related to certain relations of adopter.
The question may arise in the following circumstances:
(1) When a Hindu adopts with the consent of his wife or wives, then in what relationship does
the child stand with the wife of the adopter?

40Souney v. Duli Devi. 1985 Ori 111, Sita Ram v Puram Mal, 1985 Ori 171;
Vandavasi v kamalamma, 1994 AP 102; Arjua v. Buchi 1995 Ori 32.
41Rahasa v. Gukulnanda.1967 SC 962.
42Chandan v Aftabuddin, 1996 SC 591.
432005 S.C. 4362.
44BIshiwanathMandal v Ajay Kumar Kapri, 2008 Jhar 12
22 | P a g e

(2) When adoption is made by a Hindu without the consent of his or her spouse, in those cases
where the consent of the spouse can be dispensed with, then how is the child related to the
spouse of die adopter ?
(3) When an adoption is made by a widow or widower, then
(a) in what relationship does the child stand with the spouse of the adopter whom he or she
marries subsequently, or in what relationship does the child stand to the deceased spouse of the
adopter ?
(4) When an unmarried person (virgin or bachelor) or divorcee adopts a child and subsequently
remarries, then,
(a) what will be the relationship of the child with the subsequent married spouse, and
(b) in the case of a divorcee, what will be the relationship of the child with the divorced spouse ?
Section 14 provides answers expressly to questions posed in (1),(3)(a) and (4)(a) and provides
answers to other questions by implication. What are the answers by implications? The Supreme
Court answers them in one way and the Andhra Pradesh and Madras High Courts in another way.
We may examine the above situations one by one.

Adoptions with the consent of the spouse.This is the usual case. When a male adopts a child
with the consent of his wife, she becomes the adoptive mother of the child.45 If he has more than
one wife, the senior most wife (senior by marriage, and not by age) becomes the adoptive mother
and rest become stepmothers.46 Since a married woman cannot adopt even with the consent of
her husband, the question of any relationship with her husband does not arise. Such an adoption
is void.

45Section 14(1).
46Section 14(2).
23 | P a g e

Relationship with a subsequently married spouse.When a virgin, bachelor, widow or widower


adopts a child and marries subsequently, the spouse in relation to the child is a step-parent
(stepmother or stepfather).47
Relationship of the adopted child of a widow or widower or divorcee with the deceased spouse
or ex-spouse.The questions areWhen a widow or widower adopts a child, is the child in any
way related to the deceased spouse of the adopter ? Or, when a divorcee adopts a child, is the
child related to the divorced spouse ? Many will agree that the second question need not be
posed as the answer is obvious : there cannot be any relationship. Then, should our answer to the
first question by any way differ from that answer ?
We may summarise the pre-Act position briefly, as that will help us in the understanding of the
problem. Under the old law, whenever a widow was permitted to adopt, she adopted to her
deceased husband. This necessitated another fiction. The child was related back to the date of the
death of her husband. Thus, on account of this double fiction, adopted child became the child of
the deceased husband. This double fiction did not apply in the converse case : when a widower
adopted a son, the child did not become the adoptive son of widower's deceased wife. It is
obvious that if a bachelor adopts a son, whether under the old law or new, there is no question of
the adopted child having a mother. Similarly, if an unmarried woman adopts a child (as she can
now), there is no question of the child having a father.
Hindu law of adoption has all along taken the position that an adoption by an individual is an
adoption in the adopter's family, therefore, the adopted child is related to the relations on his
adoptive father's as well as adoptive mother's side. This is also the position in modem Hindu
law.48 But the relationship of the adopted child in the adopter's family will be in accordance with
the state of adopter's family. If a bachelor or widower adopts a son, the child will have only one
side, the paternal side, and will have no maternal side. Law cannot provide a mother to the
adopted child of a bachelor. Even when a bachelor marries, his spouse will be a step-parent49 to
47 Selection 14(3) and (4)
48Section 12.
49Sub-sections (3) and (4) of Section 14.
24 | P a g e

the child. When an Unmarried woman adopts a son, the same is the position. And it is submitted
that the same will be the position of a divorcee (male or female) who adopts a child and then
marries. His or her new spouse will be a step-parent to the child and the ex-spouse (divorced
spouse) is not related to the child. In our submission, the same should apply when a widow
adopts, but in Sawan Ram, the Supreme Court says that the deceased husband will be the
adoptive father. In Akhayv. Sarda50the Orissa High Court said that widow's son though will also
be the same of her deceased husband, he cannot divest his adoptive mother of the property
already vested in her. In Sawan Ram's case property was vested in a collateral. The Madras High
Court in Arumughav. Valliamall51took a contrary view. If both parties are not Hindus.52
Provision regarding taking consent of wife for adoption mandatory When the circumstances
under which a consent of the wife is not necessary are specified/ they cannot be added to. To do
that would be adding words to the statute. Moreover/ the words in the proviso that "he shall not
adopt except with the consent of his wife" is emphatic and renders the provision mandatory and
should be obeyed if the adoption is to be lawful. The reason is obvious. Adoption is the
admission of a stranger by birth to the privileges of a child as if the said child was born to the
adoptive parents. With the adoption/ the child takes birth to the adoptive parents and acquires
interest in the property belonging to the adoptive parents. Thus, the adoption affects the rights of
a Hindu wife in the property of her husband. When a wife gives birth to a child whether she likes
the child or not, law recognizes her as the mother of the said child and the said child as the son or
daughter of the said wife. For recognizing this relationship consent, concurrence of the mother is
not required. But, if a stranger by birth has to be conferred with the privileges of a child of the
said wife, the consent of the wife is a must. No child could be foisted against such a wife by her
husband without her consent and against her wish. In other words, she cannot be compelled to
recognize a stranger by birth as her child and she as the mother of the said child. More so, when
such adoption affects her absolute right to the property of her husband. Therefore, having regard
to the object sought to be achieved by the Act and the underlining principle of equality sought to
50 1995 Ori 212
51 (I980) MLJ 494
52NileshNarin Rajesh Lal v. Kashmira, AIR 2010 Guj 3.
25 | P a g e

be achieved by the passing of the Act any other interpretation would be contrary to the letter and
spirit of the enactment.53
Female child's right to claim maintenance.What Section 20 of the Act stipulates is that a Hindu
parent is liable to maintain his legitimate or illegitimate male or female children. Normally such
liability to maintain would continue until the child attains the age of majority. Such liability to
maintain the child, whatever be the sex, would continue until the child attains majority whether
the child is or is not able to maintain itself out of its earning or other property. So far as the male
child is concerned, his right to claim maintenance would cease when he attains the age of
majority. But so far as the female child is concerned, such right will continue even after she
attains majority, until she gets married provided she is unable to maintain herself out of her own
earnings or other property.54
Share of adoptive son in joint family property.Where branch of the appellant on one side and
branch of the adoptive son on the other side weir having half share each, the award of half share
to the adopted son is not proper.55

53Siddaramappa v. Gouravua.AIR 2004 Kant.230 at 236.


54Vishwambharan v. Dhanya AIR 2005 Ker 91
55BaburaoMarutrao Mane v. RomchandraBalasaheb Mane, AIR 2005 Bom. 375.
26 | P a g e

Divesting of Property
Section 12 (c) specifically lays down that the adopted child shall not divest any person
of any estate which vested in him, or her before the adoption. The old Hindu law of divesting
of property on adoption was very complicated and a source of constant litigation 56. Under the
modern Hindu law this source of litigation and consequent dissentions in Hindu families have
been done away with by laying down that the adopted child cannot divest any person of the
property vested in him or her before adoption. For instance, A died leaving his widow B and
two daughters X and Y. On As death B, X and Y inherited properties of A, each taking 1/3 rd share.
This one-third share vests in each of them immediately on the death of A. If now B adopts P, P
cannot divest B, X or Y57.
When an adoption is made by a widow either of a coparcener or a separated member,
then the right of the adopted son to claim the properties as on the date of the adoptive father
by reason of the theory of relation back is subject to the limitation that alienations made prior
to the date of adoption are binding upon the son, if they were for the purposes binding on the
estate. Thus transferees from the limited owners whether they be widows or coparceners in a
joint family, are amply protected. If there was a coparcenary between two brothers A and B
and B dies leaving behind his widow, then even if coparcenary comes to an end by the death
of the surviving coparcener, an adoption validly made by the widow of the deceased
coparcener would have the effect of divesting estate in the hands of the heir of the last
surviving coparcener. Similarly, where after the death of one of the coparceners, the
coparcenary comes to an end by a subsequent partition an adoption made by the widow of the
56Beshetappa v. Shivagappa, ILR (1972) Bom. HC 268.
57 Diwan, Dr. Paras, Hindu Law, 2nd Ed., Orient Publishing Company, New Delhi,
2004. p. 1126.
27 | P a g e

deceased coparcener, would have the effect of re-opening of the partition enabling the
adopted son to claim a share in the coparcenary properties as if they were still joint58.
In Sawan Ram v. Kalawati59, a Hindu died in 1948 leaving behind his widow W. W
took her husbands properties as a limited owner. In 1954, W made a gift of some lands to her
grand-niece, B. X, a collateral of A and presumptive reversioner, sued for a declaration that
the gift to B was not binding on him. The trial court gave the declaration prayed for. B
applied against it. Pending Bs appeal in 1959, W adopted Bs son P. Later in the same year
W died. X sued for possession of lands. Since these lands were not in possession of W in
195660 she did not become full owner of these and the reversioner s right to challenge
alienations continued, P could succeed to these properties only as heir to W s deceased
husband. And the Supreme Court held that a son adopted by a widow is also an adopted son
of her deceased husband. Since no property vests in a reversioner, it cannot be said that the
Supreme Courts decision divested the property vested in X. But it did reconstruct the
doctrine of relation back and thus enabled the adopted son of a widow to inherit the property
of her deceased husband.

The decision in Sawan Rams Caes61 was pleaded for a wider proposition in Sanabai
v. Wasudeo62, that in an adoption made by a widow in every case, the adoptee becomes the
adopted son of her deceased husband and therefore would divest any person of the property
vested in him after the death of his adoptive mothers husband. It was held that the adoption
58 Sharma, Dr. Basant, K., Hindu Law, 2nd Ed., Central Law Publications, Allahabad,
2008. p. 217.
59 AIR 1967 SC 1961.
60 Section 14 of the Hindu Succession Act, 1956, converts only that widows estate
into her absolute property over which she had possession when the Act came into
force
61 AIR 1967 SC 1961.
62 AIR 1979 Bom. 181.
28 | P a g e

did not relate back to the date of the death of the husband and alienation made by the mother
after the adoption was valid unless her power has been restricted by ante-adoption agreement.

In Kishan Baburao Memane v. Suresh Sadhu Memane63 original owner of the


property died in 1919 and his widow gifted some property to defendants in 1948. She adopted
the plaintiff in 1973 and she died in 1975. It was held that the adopted son could not divest
suit property vested in defendants before adoption even presuming that the gift was valid.

In Punithavalli Ammal v. Ramalingam64, the Supreme Court (Hegde, J.) held that a son adopted on
13th July, 1956 cannot on strength of the doctrine or fiction of relation back, divest the adoptive
mother of the property she inherited from her deceased husband (who became the adoptive father of
the adopted son) of which she became a full owner with commencement of the Hindu Succession
Act on 17th June, 1956.
Under the provisions of Section 14 of the Hindu Succession Act, widow becomes an absolute owner,
and it is not possible that the child adopted by her is divesting her of the right which has already been
vested in her65.

Adoption by Coparceners Widow


In Ankush Narayan v. Janabai66, Desai, J. remarked that the adopted son of the widow of the
coparcener will also become a coparcener with the surviving coparceners of the husband. This view

63 AIR 1996 Bom. 50.


64 (1970) 1 SCC 570: AIR 1970 SC 1730.
65 Dinaji v. Dadde, AIR 1990 SC 1153.
66 AIR 1966 Bom. 174.
29 | P a g e

has been approved by the Supreme Court in Sita Bai v. Ram Chandra67, and Basant v. Duttu68.

In Sita Bais Case69 there were two brothers A and B who constituted a Mitakshra coparcenary. B
died in 1930, leaving behind his widow Sita Bai. Sita Bai adopted P on March 4 , 1958. A died on
March 13, 1958 leaving behind an illegitimate son Ram Chandra. The Supreme Court held that P
became a coparcener with A with effect from March 4, 1958, and therefore when A died on March
13, 1958 the coparcenary passed on to P by survivorship. Ramaswami, J., who delivered the
judgment of the Supreme Court did not refer to Sawan Rams Case70 but specifically approved
Ankush Narayans Case71 where the Bombay High Court allowed the adopted son to divest him of
adoptive mothers inheritance which had vested in her absolutely under Section 14, Hindu
Succession Act72.
Chinnappa O. Reddy, J., in Basant v. Dattu73, said that no interest vests in a coparcener and when on
the demise of a coparcener his interest passes on to the widow by virtue of Section 6, Hindu
Succession Act that interest does not become a coparcener in the coparcenary now headed by her
deceased husbands brother. In this light the Ram Chandra decision is to be understood. Chinnappa
O. Reddy, J., observed:
The introduction of a member into a joint family by birth or adoption may
have effect of decreasing the share of the rest of the members of the joint family, but
67 AIR 1970 SC 343.
68 AIR 1987 SC 398.
69AIR 1967 SC 1961.
70 AIR 1967 SC 1961.
71 AIR 1966 Bom. 174.
72 Diwan, Paras, Modern Hindu Law, 20th Ed., Allahabad Law Agency, Allahabad,
2009. p. 252.
73 AIR 1987 SC 398
30 | P a g e

it clearly does not involve any question of divesting any person of any estate, but with
more members than before. There is no fresh vesting or divesting of estate in anyone.
Rejecting the argument that on the death of a member of a joint family, the property must be
considered to have vested in the remaining members by survivorship, the learned judge observed that
undoubtedly the property passed by survivorship, but there is no question of any vesting or divesting
in the sense contemplated by Section 12 of the Hindu Adoptions and Maintenance Act. In the
subsequent decisions, the High Courts and the Supreme Court have reaffirmed this position.

Relationship of Adopted ChildSection 14


Section 14 lays down as to how an adopted child will be related to certain relations of adopter.
The question may arise in the following circumstances:
(1) When a Hindu adopts with the consent of his wife or wives, then in what relationship does
the child stand with the wife of the adopter?
(2) When adoption is made by a Hindu without the consent of his or her spouse, in those cases
where the consent of the spouse can be dispensed with, then how is the child related to the
spouse of die adopter ?
(3) When an adoption is made by a widow or widower, then
(a) in what relationship does the child stand with the spouse of the adopter whom he or she
marries subsequently, or in what relationship does the child stand to the deceased spouse of the
adopter ?
(4) When an unmarried person (virgin or bachelor) or divorcee adopts a child and subsequently
remarries, then,
(a) what will be the relationship of the child with the subsequent married spouse, and
(b) in the case of a divorcee, what will be the relationship of the child with the divorced spouse ?

31 | P a g e

Section 14 provides answers expressly to questions posed in (1),(3)(a) and (4)(a) and provides
answers to other questions by implication. What are the answers by implications? The Supreme
Court answers them in one way and the Andhra Pradesh and Madras High Courts in another way.
We may examine the above situations one by one.

Adoptions with the consent of the spouse.This is the usual case. When a male adopts a child
with the consent of his wife, she becomes the adoptive mother of the child.74 If he has more than
one wife, the senior most wife (senior by marriage, and not by age) becomes the adoptive mother
and rest become stepmothers.75 Since a married woman cannot adopt even with the consent of
her husband, the question of any relationship with her husband does not arise. Such an adoption
is void.
Relationship with a subsequently married spouse.When a virgin, bachelor, widow or widower
adopts a child and marries subsequently, the spouse in relation to the child is a step-parent
(stepmother or stepfather).76
Relationship of the adopted child of a widow or widower or divorcee with the deceased spouse
or ex-spouse.The questions areWhen a widow or widower adopts a child, is the child in any
way related to the deceased spouse of the adopter ? Or, when a divorcee adopts a child, is the
child related to the divorced spouse ? Many will agree that the second question need not be
posed as the answer is obvious : there cannot be any relationship. Then, should our answer to the
first question by any way differ from that answer ?
We may summarise the pre-Act position briefly, as that will help us in the understanding of the
problem. Under the old law, whenever a widow was permitted to adopt, she adopted to her
deceased husband. This necessitated another fiction. The child was related back to the date of the
death of her husband. Thus, on account of this double fiction, adopted child became the child of
74Section 14(1).
75Section 14(2).
76 Selection 14(3) and (4)
32 | P a g e

the deceased husband. This double fiction did not apply in the converse case : when a widower
adopted a son, the child did not become the adoptive son of widower's deceased wife. It is
obvious that if a bachelor adopts a son, whether under the old law or new, there is no question of
the adopted child having a mother. Similarly, if an unmarried woman adopts a child (as she can
now), there is no question of the child having a father.
Hindu law of adoption has all along taken the position that an adoption by an individual is an
adoption in the adopter's family, therefore, the adopted child is related to the relations on his
adoptive father's as well as adoptive mother's side. This is also the position in modem Hindu
law.77 But the relationship of the adopted child in the adopter's family will be in accordance with
the state of adopter's family. If a bachelor or widower adopts a son, the child will have only one
side, the paternal side, and will have no maternal side. Law cannot provide a mother to the
adopted child of a bachelor. Even when a bachelor marries, his spouse will be a step-parent78 to
the child. When an Unmarried woman adopts a son, the same is the position. And it is submitted
that the same will be the position of a divorcee (male or female) who adopts a child and then
marries. His or her new spouse will be a step-parent to the child and the ex-spouse (divorced
spouse) is not related to the child. In our submission, the same should apply when a widow
adopts, but in Sawan Ram, the Supreme Court says that the deceased husband will be the
adoptive father. In Akhayv. Sarda79the Orissa High Court said that widow's son though will also
be the same of her deceased husband, he cannot divest his adoptive mother of the property
already vested in her. In Sawan Ram's case property was vested in a collateral. The Madras High
Court in Arumughav. Valliamall80took a contrary view. If both parties are not Hindus.81

77Section 12.
78Sub-sections (3) and (4) of Section 14.
79 1995 Ori 212
80 (I980) MLJ 494
81NileshNarin Rajesh Lal v. Kashmira, AIR 2010 Guj 3.
33 | P a g e

Provision regarding taking consent of wife for adoption mandatory When the circumstances
under which a consent of the wife is not necessary are specified/ they cannot be added to. To do
that would be adding words to the statute. Moreover/ the words in the proviso that "he shall not
adopt except with the consent of his wife" is emphatic and renders the provision mandatory and
should be obeyed if the adoption is to be lawful. The reason is obvious. Adoption is the
admission of a stranger by birth to the privileges of a child as if the said child was born to the
adoptive parents. With the adoption/ the child takes birth to the adoptive parents and acquires
interest in the property belonging to the adoptive parents. Thus, the adoption affects the rights of
a Hindu wife in the property of her husband. When a wife gives birth to a child whether she likes
the child or not, law recognizes her as the mother of the said child and the said child as the son or
daughter of the said wife. For recognizing this relationship consent, concurrence of the mother is
not required. But, if a stranger by birth has to be conferred with the privileges of a child of the
said wife, the consent of the wife is a must. No child could be foisted against such a wife by her
husband without her consent and against her wish. In other words, she cannot be compelled to
recognize a stranger by birth as her child and she as the mother of the said child. More so, when
such adoption affects her absolute right to the property of her husband. Therefore, having regard
to the object sought to be achieved by the Act and the underlining principle of equality sought to
be achieved by the passing of the Act any other interpretation would be contrary to the letter and
spirit of the enactment.82
Female child's right to claim maintenance.What Section 20 of the Act stipulates is that a Hindu
parent is liable to maintain his legitimate or illegitimate male or female children. Normally such
liability to maintain would continue until the child attains the age of majority. Such liability to
maintain the child, whatever be the sex, would continue until the child attains majority whether
the child is or is not able to maintain itself out of its earning or other property. So far as the male
child is concerned, his right to claim maintenance would cease when he attains the age of
majority. But so far as the female child is concerned, such right will continue even after she
attains majority, until she gets married provided she is unable to maintain herself out of her own
earnings or other property.83
82Siddaramappa v. Gouravua.AIR 2004 Kant.230 at 236.
83Vishwambharan v. Dhanya AIR 2005 Ker 91
34 | P a g e

Share of adoptive son in joint family property.Where branch of the appellant on one side and
branch of the adoptive son on the other side weir having half share each, the award of half share
to the adopted son is not proper.84

Conclusion
The Hindu Law of Adoption has certainly developed and evolved, coming from the ancient
concept of Sonship , and the thirteen types of adopted son mentioned in Manu, to now, as a
legal framework of much more juristic significance.
I conclude that, this evolution is continuing in nature, but the present progress, would not have
been complete without the Hindu Adoption and Maintenance Act,1956 , which has regularised
and also rationalised various concepts pertaining to Adoption, the same has also helped in
eradicating ambiguity from the laws of Adoption.
Considered,bysome judges that the object of adoption is two fold : to secure performance of
ones funeral rites and to preserve the continuance of one's lineage.

84BaburaoMarutrao Mane v. RomchandraBalasaheb Mane, AIR 2005 Bom. 375.


35 | P a g e

The HAMA , has steered off clearly from all the religious and sacramental aspects of adoption
and has made adoption a secular institution and secular act.
Lastly, according to me, there still are spheres where the laws can be made more stringent, clear,
and the Juristic beings have to play a pivotal role , in providing such a framework for the law od
Adoption.

Bibliography

Diwan, Dr. Paras, Hindu Law, 2nd Ed., Orient Publishing Company, New Delhi, 2004.
Diwan, Paras, Modern Hindu Law, 20th Ed., Allahabad Law Agency, Allahabad,
2009Mitra on Hindu Law, 1st Ed., Orient Publishing Company, New Delhi, 2005.

Hindu Laws, Universals, New Delhi, India, 2010


Maynes, Hindu Law & Usage, 12th Ed., Bharat Law House, New Delhi, 1986.
Mulla, Principles of Hindu Law, 15th Ed., N.M. Tripathi Private Limited, Bombay,

1986.
Nagpal, Ramesh Chandra, Modern Hindu Law, 2nd Ed., Eastern Book Company,
36 | P a g e

Lucknow, 2008.
Sharma, Dr. Basant, K., Hindu Law, 2 nd Ed., Central Law Publications, Allahabad,
2008.

37 | P a g e

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