PROJECT ON:

“ADOPTION AND ITS PROCEDURE”

SUBMITTED TO:
MS. MONIKA KOTHIYAL

SUBMITTED BY:
PALLAVI KASHYAP
LL.B. 1ST YEAR
ENROLLMENT ID: 22FLUCDDN01010
 ABSTRACT

A person or couple of persons assumes the parenting of a

child who is not their own biologically.
DOESN’T SOUND SO NEW AND FRESHLY
DISCOVERED CONCEPT RIGHT? Because such practice
can be observed in different YUGAS centuries and ages ago.
The roots of adoption can be seen in Hindu mythology. If Maa
Sita, Shri Krishna and Karna have something in common, it is
that they all were adopted. Just like king Janak and his wife
Sunaina brought up Maa Sita when they found her from earth
of their kingdom, Shri Krishna was brought up by Nanda and
Maa Yashoda even though he was biological son of Vasudev
and Maa Devaki and when Maa kunti had Karna as her son
before marriage, such act being problematic as per society,
she gave away her son for someone else to take care of him
and so he was later brought up by Adiratha and Maa Radha.
That is how hindus are very familiar with the concept of
adoption because it is in our roots and is accepted by our
society since ages. That is why this concept is covered under
hindu laws as well and is codified to give it a legal existence.
 INTRODUCTION

A report has been recently tabled on “Review of Guardianship and Adoption

Laws” in Parliament by the Parliamentary Standing Committee on Personnel,
Public Grievances and Law and Justice. Are you aware of the legal processes
behind adoption in India? Who is eligible for adoption in our country? Read
the article to know more about Adoption in India.1

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." Thus, 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 ties with the old family comes to an end.
In all texts it is agreed that adopted son is 'given away'. Under the
textual Hindu Law, the main motive of adoption was religious. The
religious motive is undeniably evident from Baudhayana's text. "I take
thee for fulfilment of my religious duties. I take thee to continue the
line of my ancestors.” 2

1
Atheena Fathima Riyaz, adoption in India (oct. 26 2022) https://www.clearias.com/adoption-in-india/
2
R.K. Aggrawal, Hindu Law, page no. 176 (26th edition, 2019)
 ADOPTION IN OLD HINDU LAW

The origin of the custom of adoption is lost in antiquity, and may well
have been no more than the natural desire for a son as an object of
affection, a protection in old age, and to have an heir. "The foundation
of the Brahmanical doctrine of adoption is the duty which every
Hindu owes to his ancestors to provide for the continuance of the line
and the solemnization of the necessary rites."3
The rise of the adopted son in the estimation of the society was further
accelerated by the Brahmin priests who advocated the institution of
adoption as absolutely necessary for every sonless man's salvation
both, here and in the world beyond. It can be said that the practice of
adoption, as it exists today, is not only on account of the timorous
superstition of Hindus that by leaving a male child in this world, one
can secure himself from the torments of the next world, but also to the
secular desire for the perpetuation of family properties and names.
Dattaka Mimansa notes a text that mu should adopt a son "for the
sake of the funeral cake, water and the solemn rites, and for the
celebrity of his name." The author of Dattaka Chundrika admits that,
even where no spiritual necessity exists a son may and even ought to
be adopted for the celebration of name and the due perpetuation of
lineage. In fact, the earliest instances of adoption found in the Hindu
legend are of daughters. Thus the religious motive of adoption never
altogether excluded the secular motive, the kritrima form of adoption,
which was in force in Mithila, had no connection with religious ideas.

ADOPTION IN PRESENT HINDU LAW

3
Amrendra v. Sanatan, AIR 1933 PC 153 : 35 Bom. LR 859 : 1933 ALJ 710
The Legislature, while passing the Hindu Adoptions and Maintenance
Act, of 1956, has taken in view only the secular object of adoption.
Under this Act a daughter can also be adopted whereas she can
neither offer funeral cake nor can perform last rites of deceased. A
child of a different caste may be adopted. A person may adopt a child
with whose mother's marriage is not lawful.
The Act does not provide for the performance of any religious
ceremonies at the time of adoption. It prescribes only the ceremonies
of giving and taking. This factor also renders adoption as a secular
act. The changes incorporated into the enactment were demanded by
progressive section of the Hindu society; they were opposed by the
orthodox section. Now after the enforcement of this Act, all adoptions
shall be made in accordance with the provisions of this Act. An
adoption made in contravention of the provisions of the Act shall be
void.
The Act received the assent of President on 21st of December, 1956.
In the Act no date has been fixed for its enforcement. So, under
Section 5 of the General Clauses Act, 1894, it shall be deemed to have
come into force on the said date, i.e., 21st December, 1956.

ESSENTIALS OF A VALID ADOPTION

Section 6 of the Act enumerates the requisites of a valid adoption.
Section 6 of the Act runs as follows:
"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;
 (iv) The adoption is made in compliance with the other conditions
mentioned in this chapter."

WHO MAY ADOPT?

Sections 7 and 8 of the Hindu Adoptions and Maintenance Act, 1956,
deal with the person who may adopt a child. Section 7 deals with
adoption by a male and Section 8 deals with adoption by a female.
Whether male or female, the person who is adopting a child must
have capacity and also the right to take a child in adoption.

CAPACITY AND RIGHT

right.-According to Section 6 of the Act one of the conditions to make
the adoption valid is that the person taking in adoption must have the
capacity to adopt as well as the right to adopt. So the capacity and
right to take in adoption are two different things. A person may have
the capacity to adopt but at the same time he may not have right to
adopt. To constitute a valid adoption, therefore, both things must be
resent.
Under the old Hindu Law any male Hindu destitute of a son, who was
of sound mind and attained the age of discretion (under Dayabhaga
School, at least the age of 15 years and under Mitakshara School on
completion of the age of 16 years) could validly adopt a son.
An adoption could either be made by the man himself or by his
widow on behalf. But once an adoption of a son was made, another
son could not be adopted. Nor simultaneous adoption of two or more
persons could validly be made. If a Hindu had a son who was (i)
civilly dead (as when he renounced the world), or (ii) married under
Special Marriage Act, or (iii) missing, or (iv) had not been heard of
for seven years the father could make a valid adoption. But he could
not adopt even if the son was disqualified from inheriting due to any
physical defect. The present Act has considerably changed the law
with respect to the capacity and right of a Hindu to adopt a son which
may be studied as under.
CAPACITY OF A MALE TO TAKE IN
ADOPTION
Section 7 lays down the capacity of a male Hindu to take a child in
adoption and puts certain formalities, as will be evident from the
section itself which runs as follows:
"Any male Hindu who is of sound mind and is not minor has the
capacity to take a son or 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.

MINORITY AND UNSOUNDNESS

Two qualifications are necessary for a male Hindu to be capable to
take a child in adoption: (i) the person must be of sound mind. (ii) he
must not be a minor. It was therefore held4 that every male Hindu who
is of sound mind may lawfully take a son in adoption if he has
attained the age of majority Soundness of mind is therefore an
essential requirement of a valid Hindu adoption and has to be proved
when challenged. So far as the soundness of mind is concerned this
condition existed even under the old Hindu Law. The adoption made
by a person who at the time, is of unsound mind, though not a
congenital lunatic is altogether invalid. The condition that the person
must not be a minor is a new one. Now after the passing of the Act a
minor has no right to adopt. Under the pure Hindu Law, as we have
seen, the person adopting was required to have reached the age of
discretion. According to Section 3 (c) of the Hindu Adoptions and
Maintenance Act 'minor' means a person who has not completed his
or her age of 18 years. Any adoption by a minor after the passing of
this Act is void and cannot become valid by subsequent ratification.

CONSENT OF WIFE
4
Gopi v Madanlal, AIR 1970 Raj 190
For the adoption by a male having his wife or wives living it is
necessary for him to take the consent of his wife or wives, as the case
may be. This provision has been, for the first time, incorporated in
this Act. Where the wife is living her consent is necessary for
adoption by a male Hindu. So, if the consent of the wife has not been
obtained in such case the adoption will be invalid in spite of the fact
that all the formalities required by law have been complied with. The
intention of the Legislature was to give women also the right to
express their opinion in this matter which is very important and which
also affects them. The wife becomes the adoptive mother of the child
adopted by her husband: hence it is just and equitable that she should
also have some voice in adoption. There may be a case where the
husband wants to adopt a particular boy but his wife is not at all in
favour of taking that boy in adoption, in such a case it would be too
much to compel her to accept that boy as her adopted son. Where the
consent of wife or wives, as the case may be, has not been obtained
according to law, the adoption will be invalid and the same cannot be
made valid by the application of the doctrine of factum valet.
CONSENT OF WIFE WHEN NOT NECCESARY
The consent of the wife will not be necessary if the wife whose
consent is sought has-(1) completely and finally renounced the world,
or (2) ceased to be a Hindu, or (3) has been declared by a court of
competent jurisdiction to be of an unsound mind.
In case a person is living with a woman as his wife and she is not
legally wedded wife, her consent would not be necessary for him to
make a valid adoption. The expression 'wife' in the present context
would mean only legally married wife. It is the consent of the legally
married wife which has been made necessary for a valid adoption in
the present context.

CAPACITY OF FEMALE TO TAKE IN

ADOPTION
UNDER OLD HINDU LAW
Under the old Hindu law, the power of female Hindu to adopt a son
was very much restricted. She could not adopt to herself and could not
adopt without the assent of her husband. She had no right herself but
that she was deemed to act merely as an agent, or representative of her
husband or that she was supposed as an instrument through whom he
was supposed to act. A Hindu could direct his wife to adopt with the
consent of a specified person or could direct her not to adopt except
with the consent of a specified person. Where the adoption by the
widow with the consent of a specified person was made a condition
precedent, an adoption without such consent of the specified person
was invalid.

UNDER PRESENT HINDU LAW

Under the old Hindu law, no such right was given to an unmarried
woman. The original Section 8 of the Act laid down the conditions in
which a Hindu female could adopt. It ran as follows:
"Any female Hindu-(a) who is of sound mind, (b) who is not a minor,
and (c) who is not married, or

if married, - (i) whose marriage has been dissolved, or (ii) whose

husband is dead, or (iii) has completely and finally renounced the
world, or (iv) has ceased to be a Hindu, or (v) 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."

MAIDEN AND DIVORCED

An unmarried woman and a woman who has been divorced, i.e.
whose marriage has been dissolved under Section 13 of the Hindu
Marriage Act, can take a child in adoption.5 A woman whose marriage
has been dissolved under Section 13 of the Hindu Marriage Act, is,

5
B.N. Das And Ors. vs Bijaya Ketan Mohanty, AIR 1982 Orissa 119
for all intents and purposes of this Act, a spinster. Such a woman,
therefore, has all the rights of an unmarried woman for the purposes
of making an adoption. Previous to this Act a spinster had no right to
take a son in adoption.

ADOPTION BY THE WIDOW

Section 8 recognizes the right of a Hindu widow to adopt a son or
daughter to herself. The effect of adoption by a widow of a son or
daughter will be to clothe the adopted son or daughter with all the
rights of a natural born son or daughter in the adoptive family and to
create all the ties of the child in the family (Section 12). The result is
that for all purposes (subject to rules laid down in Section 12) the
adoptee in effect becomes the son or daughter not only of the widow
but of her deceased husband as well.6
When there are two co-widows, one widow alone can adopt a son or
daughter without the consent of the other co-widow.7
The Shastric Law provided for an express authority by the husband to
the widow to adopt a child. Where there is no evidence showing that
husband had given authority to widow to adopt a child, the adoption
was not valid.8

RIGHT OF MALE AND FEMALE TO ADOPT

RIGHT OF MALE
A Hindu male has the right to take a child in adoption if the following
conditions are fulfilled: -
(i) if he takes a son in adoption, he (the adoptive father) 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;

6
Abhaya Kumar v. Sarda Dai, AIR 1995 Ori. 212
7
Vijayalakshmamma v. B.T. Shanker, AIR 2001 SC 1424.
8
Rajendra Kumar v. Kalyan, AIR 2000 SC 3335.
(ii) if he takes a daughter in adoption, he (the adoptive father) must
not have a Hindu daughter, or a son's daughter whether by legitimate
blood relationship or by adoption, living at the time of adoption;
(iii) if he takes a daughter in adoption, the adoptive father must be at
least twenty- one years older than the person to be adopted.

RIGHT OF FEMALE
A, Hindu female has a right to take child in adoption if the following
requirements are fulfilled :—
(i) If she takes a son in adoption she (the adoptive mother) 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 she takes a daughter in adoption she (the adoptive mother) must
not have a Hindu daughter or a son's daughter (whether by legitimate
blood relationship or by adoption) living at the time of adoption.
(iii) If she takes a son in adoption, the adoptive mother must be at
least twenty- one years older than the person to be adopted.

WHO MAY GIVE IN ADOPTION

Section 9 of the Act prescribes the capacity of persons, who give the
child in adoption to another. Section 9 runs as follows:-
Section 9.-"Persons capable of giving in adoption.-
(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 (4), the father, or the
mother, if alive, shall have equal right to give a son or daughter in
adoption.
Provided that such right cannot be exercised by either of them save
with the consent of the other unless one of them 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.
(3) [Omitted by the Personal Law Amendment Act, 2010].
(4) Where both the father and mother are dead or have completely and
finally renounced the world, or have abondoned 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 a 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.

WHO MAY BE ADOPTED

Section 10 the Act provides the qualifications necessary to make the
subject (child) of adoption fit for being taken in adoption. The Act has
taken a practical view of adoption and consequently the elaborate
rules regarding the persons to be adopted have been dropped as will
be evident from Section 10 of the Act which reads as follows:
"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".
ATURI BRAHMANANDAM V ANNE SAI
BAPUJI9
a person who was adopted when he was above the age of 15 years
under custom which permitted the adoption claimed the property of
his adoptive father on the ground that since the adoptive father died
intestate, he being the adopted child was entitled to his property.
Adoption was made through a registered adoption deed that stated
that the natural parents of the claimant aged 18 years had given him in
adoption in presence of the elders to Anne Seetharamaiah who was
issueless in accordance with the Hindu Adoptions and Maintenance
Act, 1956. It also recited that the adoption was in accordance with the
customs prevailing in the Kamma Community of Andhra Pradesh.
The Court accepted the adoption as valid in view of the statutory
exception made in favour of custom to the contrary.
DEVGONDA RAYGONDA PATIL V
SHAMGONDA10
the Bombay High Court held that a lunatic can also be adopted under
the present law. There is no such incapacity with such child, which
prevents him to be adopted.

DOCTRINE OF RELATION BACK

According to this doctrine a son adopted by the widow under the
authority of her husband was deemed to have been adopted on the day
the husband died. He was put in the position of posthumous son and
all his relations in the adoptive family related back to the date of the
death of his adoptive father by a legal fiction. The theory on which
this doctrine is based is that there should be no hiatus in the continuity
of the line of adoptive father. The doctrine, however, has application

9
AIR 2011 SC 545
10
AIR 1992 Bom. 189
only when the question relates to succession of the property of the
adoptive father.
Exception to the Rule-This Rule had two exceptions:
(1) That any lawful alienation effected by a female heir since the
death of the adoptive father and before the date of adoption was
binding on the adopted son.
(2) That if the property by inheritance went to a collateral, the
adoption could not divest the property which has vested in the heir of
the collateral.11
In Sankeralingam Pillai v. Veluchami Pillai, Sir
Lionel, C.J., summarized the law as follows:
(1) It is a rule of Hindu Law that an adoption dates back to the date of
the death of the father.
(2) There is no reason why an adopted son should be placed in
position inferior to that of the posthumous son, the heir of a
disqualified person and the absent coparcener.
(3) The right of the adopted son to demand partition has been
recognized.
(4) As adoption divests an estate of inheritance, it would be unjust to
deny to the adopted son the right of claiming repartition when the rule
of survivorship applies. It is a settled law that an adoption made by a
widow to her deceased husband after the death of the collateral does
not entitle the adopted son to come in as an heir of the collateral.

EFFECTS AND CONSEQUENCES OF

ADOPTION
The theory of adoption under the hindu law contemplates a complete
severance of the adopted child from the family of his birth, both in
respect of his paternal and as well as maternal lines.

11
Vivajai v Hanmat, AIR 1950 Bom. 510 ; Vishnu Pandey v. Mahadu, AIR 1950 Bom. 487
The effects of adoption is given in Section 12 of the Act which runs
as follows:
"An adopted child shall be deemed to be the child of his or her
adoptive father or mother for all purposes with effect 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.

PROOF OF ADOPTION
We have already seen above that no writing or execution of any
document is necessary for the validity of the adoption. So the fact of
adoption must be proved with cogent evidence, and the burden is on
the person who sets an adoption. 12
In Kishore Lal v. Mst. Chalti Bai13, the Supreme Court held
that the adoption is to be proved as a fact and the burden is on the
person who asserts so. The mere fact that the adoptive mother has
admitted the adoptive boy as adopted son on earlier occasion will not
be of any avail and the alleged adoptive mother cannot be said to be
estopped by her conduct to prove by evidence that no adoption has in
fact been done. There cannot be any estoppel where the truth is
known to both the parties. It is not always necessary to have direct

12
Khetrabasi Padhan v. Biskishan Padhan, AIR 1957 Orissa 191
13
AIR 1959 SC 504 : Devi Prasad v. Tribeni Devi, AIR 1970 SC 1286
evidence of authority to adopt. But neither the principle that both the
factum. of adoption and the authority to adopt may be proved by
circumstantial evidence alone, ie by conduct, repute and recognition,
etc., nor the consideration that evidence naturally gets lost with the
passage of time, would justify the acceptance of an oral testimony. It
is the paucity of direct evidence and not its falsity that may be
supplemented or filled up by circumstantial evidence14. Further in the
case of a Hindu, long recognition as an adopted son raises a strong
presumption in favour of the validity of his adoption, arising from the
possibility of the loss of his rights in his own family by being adopted
in another family15. Where there has been no evidence of consistent
pattern of conduct on the part of the adopted son from which
inference that adoption must have taken place can be drawn by a court
of law there is no adoption.

CEREMONY OF GIVING AND TAKING IS

ESSENTIAL
In Lakshman Singh Kothari v. Srimati Rup Kuwar16,
the Supreme Court held that under the Hindu Law, whether among
the regenerate caste or among Shudras, there cannot be a valid
adoption unless the adoptive child is transferred from one family to
another and that can be done only by the ceremony of giving and
taking. The object of the corporal giving and receiving in adoption is
to secure due publicity. To achieve this object it is essential to have a
formal ceremony. No particular form is prescribed for the ceremony,
but the law requires that the natural parent shall hand over the
adoptive boy and the adoptive parent shall receive him. The nature of
ceremony may vary depending upon the circumstance of each case.
But a ceremony has got to be a part of adoption of giving and taking.
Delegation of power to give and take may be permitted when it
becomes impossible for a natural father to handover the adoptive
child physically, to an adoptive father or mother.
14
Arjun Singh v. Virendra Nath, AIR 1971 All 29
15
Debi Prasad v. Tribeni Devi, AIR 1970 SC 1286
16
AIR 1961 SC 1378
 CONCLUSION
Adopting a child is considered a good deed performed by humans.
Generally, Adoption means willfully adopt a Child and treated like
one’s own Child. In Hindu law, the different provisions with respect
to Adoption are given but in personal laws like Muslim law, Christian
Law, Parsis Law, no separate laws are given so they have to approach
the court for adoption under the Guardians and Wards Act, 1890.
Once a child for good is separated from his biological parents and
become a legitimate child of his adoptive parents and have all the
rights that are related to adoptive parents. This means the adoptive
child cannot marry other the adoptive child or real child of his
adoptive parents, In the modern adoption laws, Adopting a child is
considered a good deed performed by humans. Generally, Adoption
means willfully adopt a Child and treated like one’s own Child.
But the Guardians and Wards Act, 1890 does not have any provision
regarding the adoption of orphans, abandoned child. Section 58 of this
Juvenile Justice (Care and Protection of Children) Act defines that
any Indian citizen of India, irrespective of their religion, if interested
to adopt an orphan or abandoned or surrendered child, may apply for
the same to a Specialised Adoption Agency, in the manner as
provided in the adoption regulations framed by the Authority.