ADOPTION

MEANING OF ADOPTION.—

According to Manu adoption is the "taking of a son, as a substitute for the failure of a male issue". Thus, it is a transplantation of a son from the family in which he is bom to another family where he is given by the natural parents by way of gift. The adopted son is thus taken as having been bom in the new family. He acquires all the rights and status in this new family and his ties with the old family come to an end.

The ancient Hindu Law recognised five kinds of adopted son, but they were reduced only to two namely, the Dattaka and the Kritrima. The Dattaka form is prevalent throughout India whereas the Kritrima form is in use in Mithila and the adjoining States. The two authoritative works on adoption namely, Dattaka Mimansa and the Dattaka Chandrika emphasised upon the religious or spritual necessity of adoption as well as upon its secular aspects.

With them, according to P.N. Sen; Adoption had two aspects; In its secular aspects, it consisted of gift and acceptance which could only result in transferring the boy from the parental dominion of the donor to that of the donee; but in so far as adoption was supposed to establish a certain religious relation carrying with it certain religious and juristic consequences, it could only be reached by the due performance of the religious ceremonies prescribed.

According to this view, therefore, the father by giving his son to another without the accomplishment of the religions ceremonies can perhaps make the son slave to the latter.

But in order to create filial relation with a person who is not the natural father, so as to make the boy competent to take part in the religious ceremonies in his adoptive family as a member thereof, the religious rites, prescribed by the Shastras for adoption must be duly performed.

The Legislature, while passing Hindu Adoption and Maintenance Act, 1956 has accepted only the secular object of adoption.

Under this Act the daughter could also be adopted even when she is incompetent to offer funeral oblations and perform last rites of deceased, although she can only continue the family line of the adopted family.

The Act does not provide for the performance of any religious ceremonies at the time of adoption. It prescribed only the act of actual giving and taking of the child. This fact renders the act of adoption as a secular act.

Adoption is not recognised in any other personal laws. There is no provision of adoption in Mohammedan law nor is it recognised by the English or the Parsi law.

It is recognised by Hindu law, but even in this system of law there were some families¹ or castes² where adoption was prohibited by custom and if such custom was proved, effect was given to it by the court but according to Section 4 of the Act, all texts, rules, interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect.

Thus, any such custom amongst any section at Hindu families prohibiting the adoption will be invalid and adoption made in such family or caste shall be regarded as lawful.

In Amin Chand and others v. Sukhbir Singh,¹ the Court observed that, custom relating to adoption has ceased to have any force after the enforcement of the Adoption Act. Because the customs do not make any provision for challenging adoption under the Act.

In view of provisions of Adoption Act appointment of heir under customs is not the same as adoption under Adoption Act. Under this Act the adopted child is completely transposed from the family of the natural birth to the adoptive family.

However, in case of appointment of heir under the custom it was not possible. Consequently in matters of adoption the provision of the Act, shall have overriding effect and shall prevail over the custom.

According to Sir Henry Mayne the entire law of adoption is based on different texts of Manu and Vashistha and Metaphor of Shaunak.

PRESENT LAW—THE HINDU ADOPTION AND MAINTENANCE ACT, 1956

The Hindu Adoption and Maintenance Act, 1956 has now completely codified the law of adoption and has materially modified it. These changes corresponded the needs of dynamism of Hindu society.

Now after the enforcement of this Act, every adoption shall be made in accordance with the provisions of this Act. Any adoption made in contravention of the provisions of this Act shall be void.

The Act received the assent of the President on 21st of December, 1956. The Act extends to whole of India except the State of Jammu and Kashmir. It will apply to all the Hindus living within the territory in India.

The Act does not mention anything regarding the adoption which had taken place before the enforcement of the Act, therefore, it implies that all the adoptions which became effective before the coming of the present Act should be taken to be valid if they were in accordance with the previous law, irrespective of the fact that they are in consonance with the present Act or not.

CHANGES MADE BY THE ACT: —

The Act has brought about remarkable changes in the law of adoption, some of which are as under :—

1. The Act will apply only to Hindus but the term Hindu has been interpreted in a very wide connotation so as to include Jains, Sikhs, and Buddhists. All the texts, rules and customs, which were in vogue, immediately before the Act came into existence shall cease to have effect with respect to any matter for which provision is made in this Act.

2. The Act specially affected the right and capacity of a Hindu female to adopt a child. A married woman cannot adopt a child in the life time of her husband without his consent. After the death of the husband, she becomes fully competent to adopt a child. She no longer requires the prior consent of her husband to adopt after the de ath of her husband. Hindu female's right to adopt has been considerably enlarged. She can adopt even during her maidenhood or after the death of her husband in case he had died issueless.

3. The Act provides for the adoption not only of boys but also of girls.

4. The Act does not provide for the performance of ceremony of 'Datta Homam'. The only requirements under the Act is to transfer the boy or the girl physically and acceptance of the child in adoption by the adopter.

5. There have been significant changes in the law relating to the consequences of a valid adoption. Now after the Act the adopted child can not divest any person of any property in the adoptive family which has already vested in him. Under the old law the adopted son was competent to divest any collateral of any property which had vested in him before the act of his adoption, but under the present Act the adopted child cannot do the same. Thus, the Doctrine of Relation Back has been completely abrogated according to which a son adopted by the widow was deemed to have come into existence in the adoptive family on the day of the death of her husband.

6. Now under the present Act a male Hindu cannot adopt a child except with the consent of his wife whereas no such law existed prior to the Act. Under the old law the widow could not adopt except with the consent of her husband. The law has been reversed.

7. The present law of adoption has been applied to all the sub-schools of Mitakshara as well as Dayabhag alike and all the difference which existed between two schools have come to an end.

The concept of adoption has undergone a remarkable change. It is no longer based on the religious and spiritual considerations.

The old law emphasised upon the need of the adoption in order to extend spritual benefit to the father and ancestors and to continue family line. The secular aspect was secondary. But the present Act has completely ignored the spiritual aspect and rendered it completely secular.

This fact becomes distinct from the fact that the Act has permitted the adoption of a girl also and secondly, the ceremony Datta Homm is no longer necessary for adoption.