Explain the essential conditions of a valid adoption under Hindu Adoption and Maintenance Act, 1956, and discuss whether Hindu female has a right to take or to give a child in adoption.
Marriage is one of the most important stage for every individual as well as for the society. It unites two persons of different sexes and allows them to procreate a legitimate child and moreover it helps the society in continuation by adding a unit into it.
But sometimes, due to physical or mental impotency parties are not capable to procreate a child. In such a situation to solve the problem of barrenness and to protect the child from destitution and vagrancy, the government has enacted the provisions of “Adoption” under Hindu Adoption and Maintenance Act, 1956.
Basically “Adoption” means transplantation of child from a family where born to another family by way of gift made by natural parents to the adopting parents. It helps the childless parents to get a child into there family. After adoption of a child, the child becomes the family member of adopting family and all his ties with the natural family gets broken.
But, all childless couples cannot adopt a child because for a valid adoption parties have to fulfil the conditions which have been laid down by the Hindu Adoption and Maintenance Act, 1956. According to section 5 of Hindu Adoption and Maintenance Act, 1956, all the adoptions must be made according to the provisions of this Act. If any adoption is made in the contravention of any of the provision of this Act, that adoption will be considered “Void” and it will not create any rights and obligations.
According to section 6 of Hindu Adoption and Maintenance Act, 1956, a person who adopts the child must be competent and must have a right to adopt a child and a person who gives a child in adoption must be competent and have a right to give child in adoption. Moreover, according to this section, the child who has been adopted must be capable of being taken in adaption.
According to section 10 of this act, the child who has been taken in adoption must be a Hindu and has not already been adopted. He has not been married and completed the age of 15 years. This is general rule but if the customs of parties allow then they can adopt a married child and also a child who has completed the age of 15 years.
According to section 7 and 8 of Hindu Adoption and Maintenance Act, 1956, any male or female who is major and of sound mind has a right to adopt a child but if they are married then if husband wants to adopt a child or if wife wants to adopt a child , they have to take consent of another spouse unless the another spouse has renounced the world or has ceased to be Hindu or has been declared by court to be of unsound mind.
Before the amendment of 2010, a mother had no right to adopt a child. According to section 8, only father had a right to adopt the child. In the leading case of Sitabai vs Ramachandra [(1969) 2 SCC 544], The Supreme Court held that, “A married woman totally lacks capacity to adopt. She can’t adopt a child even with the consent of her husband because it is the husband who exercises the right of adoption with her consent.”
But, in year 2010, this Act was amended by the Government and the government gave equal right of adoption to the mother.
If the parties fulfil the abovesaid conditions, then only they can adopt a child. But according to section 11 of this Act, if they want to adopt a male child, they must not have son or son’s son or son’s son’s son. If they want to adopt a girl child then they must not have daughter or son’s daughter. According to this section, if male wants to adopt a female child then the difference of age between them must be of 21 years or if female wants to adopt a male child then the difference of age between them must be of 21 years.
In the leading case of Guradas vs Rasaranjan [(2006) 8 SCC 267], The Supreme Court held that the adoption should be taken to have been made when the actual giving and taking has taken place and not when the religious ceremony i.e. Datta Homam is performed.
According to section 9 of Hindu Adoption and Maintenance Act, 1956, any father or mother of child has a right to give child in adoption. But they cannot give the child in adoption without taking consent of another spouse. But if the latter spouse is of unsound mind or has completely renounced the world or has ceased to be Hindu, in such a case there is no need to take consent of the latter spouse.
According to this section, if the father and mother of child are dead or have renounced the world or declared to be of unsound mind or have abandoned the child or the parentage of child is unknown, in this case the guardian of child after taking permission of court can give child in adoption. But while giving consent, the court will ascertain that adoption is in the welfare of the child.
Hence, it can be said that if the parties want to adopt a child then they have to fulfil the conditions which have been laid down by Hindu Adoption and Maintenance Act, 1956 and according to this Act, a Hindu female has equal right of adoption and now according to the amended Act, she has right to take or to give child in adoption.