SYNOPSIS

INTRODUCTION

The Adoptions and Maintenance Act of 1956 dealt specifically with the legal process
of adopting children by a Hindu adult, and with the legal obligations of a Hindu to provide
"maintenance" to various family members including their wife or wives, parents, and in-laws.

Adoption is a process of establishing a parent-child relationship between persons who are not
related by birth. It allows parentless and orphan children to have parents, home, name and a
good life and on the other hand, it enables childless parents to have a child of their own.
Adoption-by-legal-course ensures irrevocable rights to both adoptive parents as well as
adopted child.

AIM OF THE PROJECT

The aim of the thus project is to study the legal and social position of adoption in india for
hindusunder the Hindu Adoption and Maintainnence Act,1956.All also to study all the legal
implications which are concerned with the same.

SCOPE OF THE PROJECT

This particular project deals with the concept of ADOPTION under Hindu Adoption and
Maintainence Act,1956 The scope of this project limited to the analysis of Section 5 to
Section 12 of the said Act i.e to the Valid adoption,other elements of valid adoption, capacity
of male and female in the adoption, capacity of the who may be adoted, who may give in
adoption, and who may adopt. Its also deals with the effects of the adoption and gender bias
concept in adoption.

RESEARCH QUESTION:

 Whether a widow can adopt under the provisons of the Hindu Adoption and
Maintainence Act,1956
 Whether the adopted son is treated the same as the legitimate son with regards to the
inheritance of the property
RESEARCH METHODOLOGY

The research is a doctrinal research with an illustrative and explanatory approach.the conept
has been substantiated with the relevant case laws and the researcher has made critical
analysis of the relevant material.

LITERATURE REVIEW

1. Prof. T.V.Subba Rao, Family law in India, 10th edition,S.Gogiia and co. ,Hyderabad
2. Family Law Lectures - Family Law I ,3rd Edition ,by kusum
3. Dr.Sunitha Gharwal, Famly law —Hindu law, Arti and co., Mumbai
4. B.M.Gandhi, Family law, Eastern book company.
TABLE OF CONTENTS

 INTRODUCTION
 HISTORICAL BACKGROUND
 ADOPTION UNDER HINDU LAW – DEFINITION AND MEANING
 VALID ADOPTION
(a) OTHER CONDITIONS FOR A VALID ADOPTION
 CAPACITY
(a) Capacity of a male
(b) Capacity of female
(c) Widows power to adopt according to different schools of hindu law
(d) Persons capable of giving in adoption
(e) Capacity of person taken in adoption
(f) Capacity to give in adoption
(g) Persons who may be adopted
(h) Gender bias in adoption
 EFFECT OF ADOPTIONS
(a) Adopted son and subsequently born aurasa son (inheritance rights)
EFFECT OF AN ADOPTION OF A SON
 CONCLUSION
INTRODUCTION

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.

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

“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 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 3 | P a g e
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.
HISTORICAL BACKGROUNG

Since the Vedic period, Hindu society has given a lot of importance to male child. It was said
that a male child saves the father from 'put' hell; hence the male child is called Putra. This
was the main reason which has prompted the son-less to adopt a male child.

Manusmriti says that when the natural father and mother give wholeheartedly their son with
the offering of water to another person in distress, it is called Dattak.

Vashistha has given several guidelines on dattak. It says that the father and the mother of an
offspring have complete right on selling or giving the offspring to another.

A Dattak cannot be taken from the person who has only one son. A child whose kinsmen are
not known cannot be taken as dattak. A woman had no right to adopt. Sounaka has said
metaphorically that a Dattak son must be a reflection of the father, which means that a Dattak
can only be taken from a mother whom the person could have married before her marriage.
Thus, one could not adopt daughter's son, sister's son, or mother's sister's son. Thus, the
practice of Dattak in the old days had been practiced mostly for religious reasons. This is also
evident from the fact that only a male child was to be adopted because only he can perform
the religious duties for the father. Slowly, the secular reasons such as continuance of the
family name also became important. More recently, ulterior motives such as changing the
course of inheritance of property has also prompted people to adopt.

Based on the above three authors and many other customs, the Dattak ceremony primarily
involved a Dattakgrahan, i.e. the actual giving and taking of the child and a Dattakhomam.
However, there were several controversies because there was no one standard rule. So, in
1956, the Hindu Adoption and Maintenance Act was enforced which standardized as well as
modernized the rules and process for adoption.

ADOPTION UNDER HINDU LAW

Section 5 of the Hindu adoption and Maintainence Act,1956 define; Adoption to be

regulated :- (1) No adoption shall be made after the commencement of this Act by or to
a Hindu except in accordance with the provisions contained in this chapter, an any
adoption made in contravention of the said provisions shall be void
(2) An adoption which is void shall neither create any rights in the adoptive family in
favour of any person which he or she could not have acquired except by reason of the
adoption,nor destroy the rights of any person in the family of his or her birth.

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.

It was in Amarendra Man Singh v. Sanatan Singh1that the privy council finally dissociated
the temporal consequences from the essentially spiritual purpose of adoption.
In that case Amenrendra was adopted by A’s widow Indhumati after A’s son B died
unmarried at the age of 20.On the death of B,his estate vested not in his mother Indhumati
but in a collateral banamali,because by a family custom females were excluded from
succession to immovable property.Banamali questioned the validity of the adoption.The High
Court of Patna held the adoption to be invalid on the ground that the property had already
vested in Banamali and not in Indumati and the adoption, if valid, would disturb the vested
rights of persons other than the widow herself. On appeal the Privy Council held that
such a view was consistent only with a 'secular' theory of adoption a theory which would
ignore the essentially religious purpose to be served by adoption. Sir George Lowndes
preferred the religious theory to the secular theory. Delivering the judgment of the Privy
Council his Lordship observed that the power of the mother to adopt would not become
extinct until "the duty of providing for the continuance of the line for spiritual purposes
which was upon the father, and was laid by him conditionally upon the mother, had been
assumed by the son and by him passed on to a grandson or to the son's widow .Here the son
died unmarried and so it was held that his widowed mother could exercise the power of
adoption for sub-serving the religious purpose to be fulfilled by a son. The Privy Council
pointed out that the question whether the son adopted by a widow can divest anyone in whom
1
AIR 1933 PC 155
the adoptive father’s property had vested earlier is irrelevant in considering the validity of the
adoption itself. Thus the spiritual basis of adoption was seperated and emphasized as the
raison deetre, of the institution of adoption The Supreme Court considered the question as to
the true theory of adoption in Chandrasekhara Mudaliar v. Kulandaivelu Mudaliar2, a widow
governed by the Dravida School of Hindu Law sought the consent of her husbands’s
sapindas for an adoption which she proposed to make to her deceased husband. The Sapindas
refused to give their consent primarily on the ground that the adoption would affect adversely
their own reversionary rights to the property. Subbarao J, delivering the judgment of the
Supreme Court observed that in Amarendra Mansingh v. Sanatan Singh, the Privy Council's
view had crystalized in favour of the spiritual factors being the paramount objectives in
adoption. These spiritual purposes of adoption by a widow are :

(1) securing to the deceased husband and his ancestors oblations of food and libations of
water;

(2) Continuance of the lineage of the husband. The husband's sapindas in considering,
the question of assenting or withholding assent to the proposed adoption should address
themselves only to these spiritual aspects
of adoption. Since in this case the Sapindas have not done so and were obsessed by the
possible loss to themselves arising from the emergence of a nearer heir in the adoptee, the
Supreme Court held that the refusal of consent by the Sapindas in those circumstances
could be ignored by the widow. The adoption by the widow was upheld though only remoter
Sapinda had consented to the adoption, for the refusal of consent by the nearer Sapindas was
improper and was liable to be ignored by the widow while making the adoption.

It may, therefore, be concluded that adoption in Hindu Law is based upon spiritual rather than
temporal purposes. The secular theory which held the field for some time was laid to rest in
Amrendra's case.

2
AIR 1963 SC 185
VALID ADOPTION

Section 6 of the Hindu Adoption and Maintainance Act,1956 provides the requisites of a
valid adoption ;- No adoption shall be valid unless-

(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and (iv) the adoption is
made in compliance with the other conditions mentioned in this Chapter.
Among Sudras the Dattaka ceremony consists in a
giving of the child in adoption by a person competent to do so and
receiving of the child in adoption by a person who has capacity to
adopt. In Lakshmi Singh v. Smt. Rupkunwar,3 the child of A was sent
by A through his agent to the house of the B in another town for the
purpose of admission to a school and education. It was contended
that this constituted a giving and taking for purposes of adoption as
B had been thinking of adopting that boy and A had expressed his
willingness to give the boy in adoption. It was held that there should
be a giving and taking for the express purpose of effecting the
adoption and that this condition was not satisfied in this case so that
there was no valid adoption.

Other conditions for a valid adoption-

Section 11 of the Hindu Adoption and Maintainence Act 1956 In every adoption, the
following conditions must be complied with:
(i) if any 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
(whether by legitimate blood relationship or by adoption) living at the time of
adoption;
(ii) 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 (whether
by legitimate blood relationship or by adoption) living at the time of adoption;

3
AIR 1961 SC 1378
 (iii) if the adoption is by a male and the person to be adopted is a female, the
adoptive father is at least twenty-one years older than the person to be
adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the
adoptive mother is at least twenty-one years older than the person to be
adopted;
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) 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. Provided that the performance
of datta homan, shall not be essential to the validity of an adoption.
In Sandhya v. Union of India4, the constitutional validity of Section 11 under Arts. 14 and
21 was sought to be challenged. Section 11 of the Act prevents the adoption of more than one
child belonging to the same gender. Holding that the constitutional rights are not atractted the
Court held, "a person could have any number of biological children, by grace of God. That
does not certainly render support to claim
to have any number of children by adoption

It added "the Act with its mythological and secular mission has stood the test of time for
around four decades and has conveniently with-stood the assaults as attempted from time to
time. We, therefore refrain from examining validity of the impugned provisions on the
touchstone Art. 14 and Art. 21"
Following Gurunath v. Kamalabai5, the Court held that in thepresence of daughter-in-law the
widowed mother-in-law loses her right to adopt. The decision appears to be in contravention
of statutory provisions which does not lay down such prohibition
However, the Supreme Court in Smt. Vijayalakshmamma v В.Т.Shankar6, it has been held
that though the senior widow took adoption without the consent of junior widow the adoption
is not llegal but junior widow is not divested of rights vested in her in the property left behind
by her deceased husband.

4
AIR 1998 Bom.228
5
AIR 1995 SC 206
6
AIR 2001 SC 1424
 CAPACITY UNDER ADOPTION
CAPACITY OF A MALE
Section 7 of the Hindu Adoptions and Maintenance Act, prescribes to take in
adoption- 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.
Provided that, if he has a wife living, he shall not adopt except with the consent of
his wife unless the 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.
Explanation-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 any one of them is
unnecessary for any of the reasons specified in the preceding proviso.
Under Sec. 7 any male Hindu, whether he is a bachelor,
married, widower or a divorcee, is entitled to adopt. However, if he
is married consent of the wife, if he has more than one wife consent
of all the wives, is a pre-requisite for adoption. Without such consent
the adoption is void. Even if one of the wives is living separately
without dissolution of marriage, her consent is also necessary, except
for the reasons stated in the section7.The presence of widowed
daughter-in-law will not preclude the adoption by a sonless parent.

Capacity of female
Section 8 of the Hindu Adoption and Maintainence Act,1956 Capacity of a
female Hindu to take in adoption- Any female Hindu-
(a) who is of sound mind,
(b) who is not a minor, and
(c) 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.

7
Bhootooram v Ram Lal,AIR 1989 MP 198
WIDOWS POWER TO ADOPT ACCORDING TO DIFFERENT
SCHOOLS OF HINDU LAW
There was a great divergence of opinion as regards the powers
of a widow to make an adoption to her husband. The subject is
governed by a text of Vasishtha according to which a woman should
not give or take in adoption except with the assent of her husband
This text has yielded four meanings to the mediaeval pundits:
(1) Mithila view -The assent of the husband is required
according to Vachaspati Misra at the time of adoption. Obviously a
widow cannot get such consent since her husband is dead. So
according to the Mithila School a widow cannot make an adoption.
(2) Maharashtra School:- According to Vyavahara Mayuka
and Dharma Sindhu, which prevail in the Bombay School, Vasishtha's
text refers only to a woman whose husband is alive. So a widow
governed by this school can adopt and no one's permission is
necessary for this purpose.
(3) Bengal school and Benaras school :- The assent of the
husband is necessary but it may be given during his lifetime for an
adoption to be made after his death. So a widow governed by this
school can adopt only if she had prior to her husband's death secured
his express authorisation for the adoption
(4) Madras School:- According to the view prevailing in
the Dakshina or Madras School, a widow may adopt if she had
obtained the husband's authority prior to his death. Further even in
the absence of such authority she may adopt provided she secures
authority from the husband's nearest Sapindas. Vasishtha's text is treated
as illustrative and not taken literal in this school.

The authority to adopt should be strictly followed. A authorised

his wife who was then pregnant to adopt a boy "in case the son that
might be born dies". A dies and after his death the widow is delivered
of a female child who also died. The widow then adopted a boy.
 In Brijendra Singh v. State of M.P8, the Court held that a Hindu
wife who is not divorced but who is leading a life like a divorced
woman cannot, therefore, adopt a son or daughter. There is conceptual
and contextual difference between a divorced woman and one who
is leading life like a divorced woman. Both cannot be equated. The
appellant because of her physical deformity lived separately from her
husband and that too for a very long period right from the date of
marriage. But in the eye of law they continued to be husband and
wife because there was no dissolution of marriage or a divorce in the
eye of law. Son adopted by her so that he can look after her, despite social issue
involved, cannot be declared to be validly adopted son

Section 8 brings about a very important and far reaching

change in the law of adoption as used to apply earlier in case of
Hindus. It is now permissible for a female Hindu who is of sound
mind and has completed the age of 18 years to take a son or a
daughter in adoption to herself in her own right provided that
(a)she is not married, (b) or is a widow; (c) or is a divorcee or after
marriage her husband has finally renounced the world or is ceased
to be a Hindu or has been declared to be of unsound mind by a Cour
having jurisdiction to pass a declaratory decree to that effect. It follow
from clause (c) of Section 8 that Hindu wife cannot adopt a son or
daughter to herself even with the consent of her husband becaus
the section expressly provides for cases in which she can adopt a son
or daughter to herself during the lifetime of the husband. It further
added Section 8 (c) lays down the situations in which a married female
Hindu wife can adopt. It lays down that only a female Hindu whoi
married and whose marriage has been dissolved i.e. who is a divorcee
has the capacity to adopt.

In Pentakota Satyanarayana v. Pentakota Seetharatnam9, plaintiff

claiming to have been adopted by H and his first wife W when H

8
AIR 2008 SC 1056
9
AIR 2005 SC 4362
was estranged from his first wife and was living with second wife from
whom 3 children were born to him. Pleadings show hatred between
adoptive father and his first wife due to second wife coming into
picture. It was evident that no date of adoption was given in the plaint.
There was also absence of fixing muhurtham which was very
important for Hindus for even smallest of functions. Plaint also bereft
of details of essential for proving adoption. There was no adoption
deed executed. Adoptive mother though claiming maintenance
from her husband did not claim maintenance for her adopted son
Held, in these circumstances that alleged adoption was not true and
valid and alleged adopted son had no right in suit property for
partition.
Persons capable of giving in adoption
Section 9 of Hindu Adoption and Maintainence Act,1956 prescribes that
1) No person except the father or mother or the guardian of a child shall have the
capacity to give the child in adoption.
(2) Subject to the provisions of sub-section (3) and sub-section (4), the father, if
alive, shall alone have the right to give in adoption, but such right shall not be
exercised save 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.
(4) 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 where the parentage of the
child is not known, the guardian of the child may give the child in adoption with
the previous permission of the court to any person including the guardian himself.
(5) Before granting permission to a guardian under sub-section (4) the court shall
be satisfied that the adoption will be for the welfare of the child, due consideration
being for this purpose given to the wishes of the child having regard to the age and
understanding of the child and that the applicant for permission has not received
or agreed to receive and that no person has made or given or agreed to make or
give to the applicant any payment or reward in consideration of the adoption
except such as the court may sanction.
Explanation- For the purposes of this section-
 (i) the expressions "father" and "mother" do not include an adoptive father
and an adoptive mother,
(ia) "guardian" means aperson having the care of the person of a child or
of both his person and property and includes-
(a) a guardian appointed by will of the child's father or mother; and
(b) a guardian appointed or declared by a court; and

(ii) "court" means the city or civil court or a district court within the local limits or whose
jurisdiction the child to be adopted ordinarily resides.

CAPACITY TO GIVE IN ADOPTION

The following persons have capacity to give a child in adoption:
(i) Father :- The Act of 1956 has changed the law. The consent of the mother should be
obtained before the child (son or daughter) can be given in adoption. Where the mother has
renounced the world or renounced Hinduism by embracing some other religion or where
the Court has declared her to be a lunatic, her consent would not be necessary. An adoptive
father cannot give away the adoptive child in adoption to someone else.
(ii) Mother - An unmarried woman who has given birth to a child can give her child in
adoption. So also the widow. A married woman is not competent to give the child in adoption
so long as her husband is alive. But if the husband has renounced the world or ceased to be a
Hindu or been declared by Court to be a lunatic she can give her child in adoption. An
adoptive mother cannot give the adopted child in adoption to someone else. 'Mother', means
natural mother and so a step-mother, cannot give a child in adoption.
(iii)Guardian(Giving orphan in adoption) Under the old law an orphan could not be given in
adoption in the absence of a special custom. In Marayya v. Ramalakshmi10 it was argued that
such an adoption is validated by the application of the doctrine of Factum Valet but the
argument was repelled. It was held that only the father or mother had capacity to give in
adoption and that this rule is mandatory. Now the guardian can give an orphan in adoption
provided he obtains the permission of the court for the purpose.

In Hanmanth Lakshman Salunke v Shrirang Narayan Kumar11 ,while a custom permitting

adoption of a child over 15 years was established but the age was less than 21 years . This
condition being mandatory its breach was held to be fatal to the adoption.

10
(1921) 44 Mad. 260
11
AIR 2006 Bom 123
Persons who may be adopted-

No person shall be capable of being taken in adoption unless the following conditions are
fulfilled, namely-

(i) he or she is a Hindu;

(ii) he or she has not already been adopted;
(iii) 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;
(iv) 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.
CAPACITY OF PERSON TAKEN IN ADOPTION
Boy: - Under the Shastric Hindu Law only a son could be adopted. An orphan could not be
adopted. An illegitimate son or an adopted son could not be given away in adoption. Under
the Bombay School of Law even a married man could be adopted.. Among the regenerate
classes after Upanayanam (Thread Ceremony) a boy could not be given away in adoption.
There was no age limit as such for the boy to be taken in adoption. The present law has
profoundly altered the law on this subject An orphan can be adopted. The guardian can give
such a child in adoption with the permission of the Court. An illegitimate son may
be given in adoption by the mother. An adopted child, however cannot be given in adoption
again. Upanayane does not bar an adoption now. But a stringent age limit is imposed. The
adopted child should not have completed 15 years of age. Contray customs are saved. If the
adoption is by a female the adopted be should be 21 years younger than the adoptive mother.

Girl -Under the Shastric Hindu Law a daughter could not be adopted. There could be
contrary custom but the general rule was that a female child could not be adopted.
Now the Act has changed this position. A daughter may be adopted. When the adopt
is a male, she should be 21 years younger than the adoptive father.

The Supreme Court in Atluri Brahmanandam v. Anne Sai Bapuji12 has relied upon the
exception provided in Sec. 10 (iv) and has proved by leading cogent and reliable
evidence that there is a custom in the "Kamma" community of Andhra Pradesh for
adoption of a boy even above the age of 15 years. The Supreme Court further held
12
AIR 2011 SC 545
 that there is no infirmity at all in the findings of the trial Court which were affirmed
by the High Court that the adoption of the respondent by late Anna Seetharamaiah is
legal and valid.

Gender Bias in Adoption:

Though after the enactment of the Act, it has been noted that the gender discrimination has
been eliminated but in actual sense it still exists. A married female cannot adopt, not even
with the husband’s consent, unless her husband dies or suffers from any disability or
renounces the world or so. On the other hand, a husband may adopt with the consent of the
wife. To clearly show the gender discrimination, two cases have been referred. Similarly, in
the matter of a giving a child in adoption, the Hindu male enjoys broader rights than a
corresponding female. The case of Malti Roy Choudhury v. Sudhindranath Majumdar13 is oft
referred to.

In the case of Malti Roy Choudhury, the appellant, Malti had been adopted by the deceased
mother. After her mother’s death, she became the sole heiress and applied for estates and
properties left behind by her mother. There were a lot of evidences which have been
presented by the appellant like proof of the ceremony of adoption, natural parents handing
over the child to the adoptive mother in the presence of her husband and the priest;
acknowledgement through school records; Malti being performed the funeral ceremony of
her mother. But however, the Court did not accept the argument and it was held that, “under
the provisions of the act, the husband alone can adopt, but here, it is an admitted position that
Malti was adopted by the mother Tripti not by the father and thereby, rejected her appeal.”

It is time that law, in this age of equality, takes cognizance of the same and give equal rights
to both men and women with regard to adoption. There is no reason to give to the husband
veto power to deny fulfillment of maternal instincts of his wife.

EFFECT OF ADOPTIONS-
Section 12 of the Hindu Adoption and Maintainence Act 1956 say that An adopted child shall
be deemed to be the child of his or her adoptive father or mother for all purposes with effect

13
AIR 2007 Cal 4
from the date of the adoption and from such date all the ties of the child in the family of his
or her birth shall be deemed to be severed and replaced by those created by the adoption in
the adoptive family.
Provided that- (a) the child cannot marry any person whom he or she could not have married
if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest
in such person subject to the obligations, if any, attaching to the ownership of such property,
including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her
before the adoption.

While it is true that the adopted child gets property rights in his new family,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.
The wife of a Hindu male, who adopts, is deemed to be the adoptive mote
where an adoption is made with the consent of more than one wife, the senior
most in marriage is deemed to be adoptive mother and others as stepmother.In
the case of adoption by a widower or bachelor, any woman whom he subesequently marries
is the stepmother of the child. Similarly, in case of adoption by widow or an unmarried
woman, any man whom she marries is deemed to be step-father of the child. In this context
an issue that came up before Supreme Court14, was whether. in case of an adoption by a
widow, would the adopted child be deemed to be the child of the deceased husband as be be
his heir? The case involved succession to the properties of the widows husband-the widow,
too, had died within two months after adoption. The dispute was between the adopted son and
the reversioner ot the deceased husband.For the reversioner, it was argued that the adopted
son could not succed to the properties of widows husband since;he was not the son of the
deceased husband.The Hindu Adoptions and Maintainance Act, 1956, having conferred an
independent right on adoption on a female hindu.,if a widow adopts a son he becomes the son
of the widow only,and cannot be deemed to be the son of the deceased husband as the
Doctirne of the Relation Back has been abrogated by the Act. The courts did not accept this
argument.It was held,that the words used in Section 5(1) are adoption by or to a hindu.

14
Sawan Ram v Kalawati;AIR 1967 SC 1761
Adoption to a Hindu was intended, according to the court,to cover cases where an adoptionis
made by one person while the adopted child becomes the child of another person also. So if a
widow adopts a son,the actual adoption is by the female; but the adoption would not only be
to herself , but also to her deceased husband. Referring to Section 12 of the Act , the court
pointed out that from the date of the adoption all ties of the child in the family of birth are
served and new ties created in the adoptive family;it is well recognised that a married female
belonged to the family of her husband and accordingly,the adopted child must also belong to
the same family, the court said. It is pertinent to the note that Section 14 of the Hindu
Adoptions and Maintainance Act, 1956 deals with four situations in which a child adopted by
one person becomes the adopted of another. There is however no mention as to whether a
child adopted by a widow would also become the child of the deceased husband and
conversely if the court interpretation were to be accepted would on widowers adopting a child
, the child become the child of the deceased mother as well.
Adoption made once cannot be cancelled by the parents, nor can the adopted child renounce
his/her status and return to the family of his/her birth.

The case of Sawan Ram v. Kalavati15, brought out the question as to whether, in the case of
adoption by a widow, would the adopted child be deemed to be the child of the deceased
husband as well, so as to be his heir. The Supreme Court held that the adoption would not
only be by the female, but also to her deceased husband. This argument was based on the
words found in s. 5(1) of the Act.

Also, it has to be noted that the adoptions once made by the parents cannot be cancelled by
the parents, nor can the adopted child renounce the adoptive family and go back to his/her
birth parents. Adoption is generally held to be permanent in nature, with neither parties going
back on their words. This has been stated in section 15 of The Act. But care has to be taken
that the adoption referred to in this section is a valid adoption.

ADOPTED SON AND SUBSEQUENTLY BORN AURASA SON

(INHERITANCE RIGHTS)
An adopted son is for all practical purposes treated as an aurasa son. This text has been
interpreted differently in different Schools.
Benaras School:- The adopted son takes 1/4th of the whole estate. The aurasa son takes
3/4th.

15
AIR 1967 SC 1761
Bombay School:- The adopted son takes 1/4th of the aurasa son's share. So, adopted son
takes 1/5th and aurasa son 4/5th.
Madras School: - Adopted son takes 1/5th. But amongst sudras the adopted son and
subsequently born aurasa son take equally.
Bengal School:- The law is the same as in Madras in regard to sudras. But as regards other
castes, the adopted son takes 1/3rd of the estate. This is on the authority of Dayabhaga citing a
text of Katyayana to that effect.
All these different and differing interpretations have now been superseded by legislation. The
adopted son ranks equally with the aurasa son amongst all castes. So he takes an equal share
with the aurasa son. This is so irrespective of the caste to which the parties belong

Effect of an adoption of a son on:-

(i)The undivided interest of the son in the joint family property of his natural father at the
time of adoption,
(ii) Ancestral property in the hands of the adoptive father
According to Manu the effect of adoption is to change the gotra of the adopted son and to put
an end to his right to the wealth of the natural father. This was how his text was understood
by the Mediaeval Pundits.
In Dattatray v Govind16, it was held that, on adoption, the adopted boy would be
treated as civilly dead in the natural family so that he would forfeit what had been vested in
him previously as the sole surviving coparcener.
Under the present law an adoption does not affect any vested right. The adoptee retains what
had been vested in him in the natural family prior to adoption. He will acquire rights in the
adoptive family, subject to the condition that he does not divest any rights vested in others as
to such property prior to his adoption.
In Namdev Vyankat Ghadge v. Chandrakant Ganpat Ghadge17, the Court reiterated that on
death of the sole surviving coparcener the property dissolves on his heirs subject to the right
of maintenance of the widow of another coparcener who died prior to the death of sole
surviving coparcener. However, a son adopted by the widow of predeceased coparcener after
the death of the sole surviving coparcener cannot divest properties vested in heirs and cannot
claim any share.

16
AIR 1916 BOM 210
17
AIR 2003 SC 1735
CONCLUSION

Adoption is a noble cause, which brings happiness to kids, who were abandoned, or
orphaned. This gives a chance for the humane side of civilization to shine through. It’s a
beneficial program where the child is treated as the natural born child and given all the love,
care and attention. At the same time, it fills the void in the parents who yearned for kids, their
laughter and mischief echoing off the walls of a home. Although a few changes could be
made to make all the laws regarding adoption a little, uniform. the Hindu Adoptions and
Maintenance Act, 1956, has brought about significant changes in the Hindu law of adoption and has
considerably improved the position of women in this regard but there is a clear bias which is based
purely on the marital status of a female.

‘Adopting one child won’t change the world: but for that child, the world will change.’
– Unknown