Valid Adoption under Hindu Adoptions and Maintenance Act, 1956

Valid Adoption under Hindu Adoptions and Maintenance Act, 1956

Category : Family Law – I

Section 6 of the Hindu Adoptions and Maintenance Act, 1956 provides the requisites of a valid adoption. The person adopting has the capacity and 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 made in compliance with the other conditions mentioned in Chapter II of the Hindu Adoption and Maintenance Act, 1956. No adoption shall be valid unless:- 1. The person adopting has the capacity and also the right to take in adoption. 2. The person giving in adoption has the capacity to do so. 3. The person adopted is capable of being taken in adoption: and 4. The adoption made in compliance with the other conditions mentioned in Chapter II of the Hindu Adoption and Maintenance Act, 1956.

According Section 5 of the Act, an adoption made in contravention of the provisions of Chapter II of the Hindu Adoptions and Maintenance Act, 1956 is void. In Jai Singh v/s Shakuntla, 2002 the Supreme Court opined that Section 16 of the Hindu Adoptions and Maintenance Act, 1956 envisages a statutory presumption that in the event of there being a registered pertaining adoption, adoption would be presumed to have been made according to law.

1. Capacity of a male Hindu to take in adoption According Section 7 of Hindu Adoption and Maintenance Act, 1956 any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. But if the male Hindu has a wife living at the time of adoption, he shall not adopt except the consent of his wife. But the consent of the wife of a male Hindu is not necessary in the following three conditions:- • the wife has completely and finally renounced the world, or • the wife has ceased to be Hindu, or • the wife has been declared by a Court of competent jurisdiction to be unsound mind. If a man has more than one wife living at the time of adoption, the consent of all the wives must be obtained. The Act has given two qualification for a male Hindu to capable to taka a child in adoption i.e. the person must be of sound mind and he must not a minor. The man is required to take consent of the wives or wife, before adoption. Without the consent of wife or wives the adoption will be void.
2. Capacity of a female Hindu to take in adoption Now a female has also the capacity to adopt any child. Section 8 of the Act provides that any female Hindu who is of sound mind, who is not minor and who is not married or if married, whose married has been dissolved or whose husband is dead has the capacity to take a son or daughter in adoption. A woman who is of sound mind and is not a minor can take child in adoption. The woman has no right to adopt, during the subsistence of the marriage, if the husband not suffering with any of the disabilities mentioned in Section 8 of the Act. The unmarried and widow woman has also the right to take in adoption any child.

3. Person capable of giving in adoption

Section 9 of the Act down the capacity of person, who may give the child in adoption to another. No persons except the father or mother or the guardian of the child shall have the capacity to give in adoption. • Capacity of the father to give in adoption :- If the father is alive, he shall alone have the right to give in adoption but such right shall not be exercise save with the consent of the mother. • Capacity of the mother to give in adoption :- The mother may give the child in adoption if the father is dead or had completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court jurisdiction to be unsound mind.
Capacity of the guardian to give in adoption :- Where both the father and mother are dead and to be unsound mind and finally renounced by the world declare by the court then the guardian of a child may give the child in adoption with the following conditions laid down by the courts:-  That the adoption will be for welfare of the child. o That the applicant for permission has not received any payment in consideration of the adoption. o That no person has given any payment to the applicant for consideration of the adoption of child. The father has preferential right to give the child in adoption. If he is unsound mind or suffering from chronic disease has the right to give a child in adoption. The guardian may give the child in adoption with the prior permission of the court.

4. Who can be adopted:Section 10 of the Hindu Adoption and Maintenance Act, 1956 the following person who fulfil the conditions are capable for adoption:- a) He should be Hindu. b) He or She not already be adopted any child adopted. c) He or She has not been married unless there is a custom applicable which permits being can adopt. d) He or She has not completed the age of fifteen years which is to be considered being taken for adoption. 5. Formalities of Adoption:- (i) The child to be adopted must be actually given and taken in adoption by the parents/guardian. (ii) Only after the transfer of a boy from one family to another with a ceremony will be valid. Refer a case of Lakshman Singh Kothari v/s Smt. Rup Kuwar, 1961 the court held that under the Hindu Law there can not be a valid adoption unless the adoptive boy is transferred from one family to another by doing the ceremony of given and taken.


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