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Sunday, January 25, 2015

The nature, essential condition of a adoption and who may adopt under Hindu law.


The shastric Hindu Law looked at adoption more as a sacrament than secular acts. Some judges think that the object of adoption is two folds:-
i.                    To secure one’s performance of one’s funeral rites and,
ii.                  To preserve the continuance of one’s lineage.

Hindus believed that one who died without having a son would go to hell called poota, and it was only a son who called save the father from going to potta. This was one of the reasons to be get a son.
In the Hindu shastras, it was said that the adoption son should be a reflection of the natural son. This guaranteed protection and care for the adopted son. He was not merely adoptive parents, but all relation on the parental and maternal side in the adoptive family also came into existence. This means he cannot merely the daughter was natural born or adopted. It is interest to know that while Muslims and Parsi personal laws do not recognize the concept of adoption, Hindu law, from the most ancient times, had elaborate provision on adoption. Even the ancient Greek and Roman legal system recognized adoption.

Currently, the adoption under Hindu law is governed by the Hindu adoption and Maintenance Act, 1956. This Act applies only to Hindus not to Muslims. It came into effect from 21st December, 1956. The un-codified Hindu law recognized twelve kinds of sons, of which five kinds were adopted sons. Under the codified law, a daughter could not be adopted. The Hindu Adoption and Maintenance Act, 1956, recognized adoption to both a son and a daughter. This Act has also brought about certain change in the earlier un-codified Hindu law of adoption and maintenance. This Act extends to the whole of India, except the state of Jammu and Kashmir.


ESSENTIAL OF VALID ADOPTION
The following may be considered as essential of a valid adoption:
The adoption should be legally capable of taking in adoption:-
A male Hindu of sound mind, who has attained the age of discretion, may take a son in adoption provided he has no son, grand-son, or great-grand-son, natural or adopted living.
A wife cannot adopt, while her husband is alive except with his express consent. A widowed can adopt under an authority, express or implied from her husband.

The person giving in adoption must be legally competent to do so:-
The only people who are authorized to give a boy in adoption are his father and mother. The mother cannot give a boy in adoption while the father is living without his express permission. But she can do so if the father enters a religious under or becomes incapable of giving consent.

The adoptee should be lawfully capable of being taken in adoption:-
The person to be adopted must be a male and belong to the identical caste of the adopting father. A boy, whose mother (had she been unmarried) could not be lawfully given in marriage with the adoptive father, cannot be adopted.


Actual giving and taking:-
Actual giving and taking is absolutely necessary even in case of sudras. The physical act of performing the giving and taking may be delegated to another by the parents.




Dattahoma:-

High Courts differed on the point whether dattahoma is necessary for a valid adoption. It is now generally agreed that dattahoma is necessary but it may be performed later on even after the death of adoptive father or the natural father of the boy


Who may adopt?
Capacity of Male:-
Any male Hindu, who is of sound mind and is not a minor, has the capacity to taken 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 his 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. If a person has more than wife living at the time of adoption the consent of all the wives is unnecessary for any of the reason specified in the preceding provision.

Capacity of Female:-
Any female Hindu—
Who is sound mind;
Who is not a minor, and
Who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounce 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.

Where the woman is married it is the husband who has the right to take in adoption with the consent of the wife. The person giving a child in adoption has the capacity to do so:
1.      No person except the father or mother or guardian of the child shall have the capacity to give the child in adoption.
2.      The father alone if he is alive shall have the right to give in adoption, but such right shall not be exercised except 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.

3.      The mother may give the child in adoption if the father 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.

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 unknown the guardian of the child may give the child in adoption with the previous permission of the court. The court while granting permission shall be satisfied that the adoption is for the welfare of the child and the due consideration will be given to the wishes of the child having regard for the age and understanding of the child. 


The person can be adopted-
No person can be adopted unless,
a.       He or she is a Hindu.
b.      He or she has not already been adopted,
c.       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.
d.      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.