Adoption as a legal concept was available only among the members of the Hindu community

except where custom permits such adoption for any section of the polity. Only Hindus were
allowed to legally adopt the children and the other communities could only act as legal
guardians of the children. Adoption is the entry or admission of stranger child to a family
at the place of child by birth.

Adoption has always been considered as a wonderful opportunity to provide a child with
home and parents. It offers an excellent alternative to institutional care of destitute,
abandoned and neglected child in an atmosphere of love, affection and understanding which
only a family can provide. Through this project the only aim of the researcher is to collect as
much data and information attached to the concept of adoption in India including
adoption in Hindu Law, Muslim Law and other religions prevalent in India.1

In the early days, the practice of adoption was shrouded in the secrecy, which was restricted
in an Indian traditional family. The tradition at that time was that, childless couples adopt a
child with a view to ensure the continuity of tradition and to avoid alienation of property.2
The cases of adopted child being changed as a biological child by means of various
subterfuge was also significant in those days.

Although there is no general law of adoption, yet it is permitted by a statute amongst Hindus
and by custom amongst a few numerically insignificant categories of persons. Since adoption
is legal affiliation of a child, it forms the subject matter of personal law.3 The religion
specific nature of adoption laws was a very conservative step. It reinforced practices
that were unjust to children and hindered the formation of a Uniform civil code. Article 44 of
the Indian Constitution declares that “The state shall Endeavour to secure for citizens a
Uniform Civil Code throughout the territory of India.

1S. Aarthi Anand, and Prema Chandra. “Adoption Laws: Need for Reform”. Economic and Political
Weekly 37.38 (2002): 3891–3893.

2 Groza, Victor. Social Service Review 80.3 (2006): 558–560

3Mayne, John D.. “Adoption in India”. Journal of the Society of Comparative Legislation 1.2 (1899):
237–239
Over the years several attempts were made to formulate a general secular law on adoption.
The attempts of Parliament in this direction did not bear fruit, all these went in vain on
account of a number of reasons. The history of all such efforts does not bring credit to the
secular credentials of the Indian polity.

A. 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.4

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 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. Manu defines an adopted son as follows – “A son equal in caste and
affectionately disposed, whom his mother or father (or both) give with water at a time of
calamity, is known as the Dattrima (Dattaka) son.5
ADOPTION UNDER HINDU LAW: PRESENT STATUS

4 International Encyclopedia of Social Sciences, Vol. 1 p.95

5 Hindu Adoptions and Maintenance Act ,1956, s. 8
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.6

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.7 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

II. A. STATUTES GOVERNING ADOPTION IN RECENT TIMES: HINDU LAW

6 Lakshmi, Rama. "India Moves To Speed Up Adoption". The Guardian 2015. Web. 23 Jan. 2016.

7 Lakshmi, Rama. "India Moves To Speed Up Adoption". The Guardian 2015. Web. 23 Jan. 2016.
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.8

Requirements for a valid adoption

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.9 The
Act reads,

9 Hindu Adoption and Maintenance Act, 1956, s.6

I. The person adopting is lawfully capable of taking in adoption
II. The person giving in adoption is lawfully capable of giving in adoption
III. 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?

INTRODUCTION
India is a land of multiple religions having their respective personal laws as a result of which
there exist different guardianship and custody laws in India. No laws relating to guardianship
and custody of children exists in shastric Hindu law because of the existence of the Hindu
joint family system where the father as the Karta enjoyed all the powers including
guardianship of the children and their property. 10 Being a never ending system , even if the
Karta died , the management of the affairs of the children rests with the next male elder as a
result of which the minor (both his person and property) remains under the care of the joint
family. 11 On the other hand , in Muslim law there is no such thing as a Hindu joint family,
therefore they have detailed personal laws regarding custody and guardianship of minor’s
person and property respectively. Custody in Muslim law is called Hizanat . Father is
dominant as the sole guardian of the child while the mother has the custody of children in the
tender years. 12
The guardianship and custody laws of the Hindus is mainly governed by the Hindu Minority
and Guardianship Act, 1956 whereas the Guardianship and Wards Act 1890 is more of a
secular law relating to guardianship and custody which covers minority and guardianship
laws relating to non-Hindus and is also supplementary.13 The most remarkable feature of the
Indian law of guardianship and custody is that by progressive interpretation by the courts ,

10
PARAS DIWAN ,LAW OF ADOPTION, MINORITY GUARDIANSHIP AND CUSTODY ,8 ( 4th edition,
2010) ( Herein after, DIWAN)

11
Id
12
Id
13
KUSUM, FAMILY LAW LECTURES, (2003)
according to the dynamic nature of our society. There has been a transformation of parental
power to parental care and responsibility. The following project will aim at discussing the
origin and development of laws relating to guardianship and custody along with addressing
the problems related to supremacy of father in natural guardianship and gender bias in
custody disputes in general . In light of the law commission report which has raised the
issue unequal legal position of parents,, this project aims to discuss two landmark judgements
regarding the same.