The current scenario witnesses a change in the psychology of the individuals regarding the purpose of adoption. Previously, the individuals were adopting son for the continuation of their family lineage apart from the performance of the funeral rites. Additionally, Hindus give importance to a male child, and Hindu was allowed to adopt the male child only if he is not able to produce natural child. But in the current scenario, a child is adopted for satisfying the parental and emotional instincts of adopters rather than emphasizing on the importance of son for the performance of funeral rites as it was believed that female child could not save the deceased from entering into hell and save him from the sufferings of the afterlife. Let us discuss the provisions of the Hindu maintenance Act.
Changes bought by Hindu Maintenance Act
Before the enactment of Hindu Maintenance Act, 1956 (hereinafter referred to as “HAMA”) the adoption was governed by the Guardian and Wards Act, 1890 (hereinafter referred to as “GAWA”). In India, only a Hindu could adopt a child and the individuals belonging to other religions could only become the guardians under the Guardians and Wards Act, 1890. The GAWA is applicable to Parsis, Muslims, Christians, and Jews whereas HAMA is applicable to Hindus, Sikhs, Jains, and Buddhists. It gives the adopted child, the status of natural children. The adopted child also gets the right to inheritance. Legitimate and illegitimate child both are covered under the provisions of HAMA.
Prior to the enactment of Hindu Maintenance act only males could be adopted but now the Act authenticates the adoption of a female child also. The illegitimacy of a child is irrelevant for the adoption of a child. The objectives of adoption are as follows:
1. For getting the protection till the old age by the adopted child.
2. To keep the family property secured.
3. To perpetuate family fame and name.
4. To solemnize last rituals and rites of parents.
Who can adopt
Under the HAMA the Hindu male who is of sound mind and major can adopt the child. Married man shall not adopt a child except with the consent of wife unless she has not completely renounced the world or has ceased to be a Hindu or declared unsound mind by a competent court. A female Hindu can also adopt a son or daughter subject to conditions that include she shall be major and sound mind and the consent of the spouse has been obtained, if she is married. The right of the Hindu women has been enlarged, she could adopt a child during her maidenhood or after the death of the spouse in case he dies issueless.
The conflict between Juvenile Justice Act and the HAMA.
Interestingly, section 11(i) and (ii) of HAMA bars the adoption of child by parent already having biological child. However, this bar is not applicable to child if who is going to be adopted is abandoned, orphaned or surrendered child or a child in need of care and protection as stipulated under the provisions of Juvenile justice Act,2000. Prima facie, there exists a conflict between Juvenile Justice Act and HAMA but the former will prevail over the latter owing to its subsequent enactment than the latter. In Allahabad Bank v. Canara Bank & Another the Hon’ble Apex court held that latter enactment would prevail over the former.
Section 11 of the HAMA lays down following conditions that must be fulfilled for a valid adoption:
1. The child of similar sex that parents are having should not be adopted.
2. Adoptive father shall be at least 21 years older than the female child, in case the adoption is done by a male.
3. Adoptive female shall be at least 21 years older than the male child to be adopted.
4. Couples or individuals both can adopt the child.
5. Parents transferring their child shall have the intention to transfer.
It is not necessary to conduct dattahomam(adoption ceremony) for a valid adoption.
Who can be Adopted
1. The child to be adopted shall be a Hindu.
2. The child should not have been adopted earlier.
3. The individual should not have completed the age of fifteen years unless there exists a custom that provides otherwise.
4. The individual should not be married, unless there is a custom which provides otherwise.
Other Major changes introduced by HAMA
Under the previous law, adopted child could divest the collateral of the property vested in him prior to period when he had been taken into adoption but the present law restricts the adopted child from doing the same.
Another major change bought by the HAMA is the abrogation of the Doctrine of Relation back that implies adopted child came into existence in the adoptive family on the very day of the death of the husband of the lady. The widow can adopt the child under the HAMA. The Act applies alike to all the sub-schools of Mitakshara and Dayabhaga alike and the differentiation existed between them has come to an end.
HAMA has bought several changes that was lacking in the Indian society considering the developments India has witnessed. The primary motive behind adoption nowadays is to satisfy the parental emotions rather than spiritual aspect attached to it. The HAMA also provided certain rights to women like right to adopt a child which was not available to them earlier. Even the widows could adopt the child. Also the Act talks prescribe conditions that must be satisfied for a valid adoption which secures the interest of all the parties to adoption and secures the welfare of the child.
Neetish Kumar Handa, Adoption in Ancient India, (November, 18, 201, 11:04 AM), available at https://www.scribd.com.doc/20167904/ADOPTION-IN-ANCIENT-INDIA #scribd.
The Hindu Adoption and Maintenance Act,1955, § 2 .
The Hindu Adoption and Maintenance Act,1955, § 7.
AIR 2000 SC 1535.