THE HINDU ADOPTION AND MAINTENANCE ACT, 1956

10. PERSONS WHO MAY ADOPTED.-

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

i. he or she is Hindu,

ii. he or she 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 take in adoption.

NOTE

A Lunatic can also be adopted under the present law. 

There is no such incapacity with such child which prevent him to be adopted. (D.R. Patil v. Shamgonda, AIR 1992 Bom. 189).

Who may be adopted (Present Law).—According to Section 10 of the Act the following qualifications are necessary to make the subject of adoption fit for being taken in adoption—

i. He or she must be 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.

ADOPTION OF MARRIED PERSON

According to section 10(iii), a person who is married cannot be adopted. However, if there is a custom or usage applicable to the parties which permits such persons, being taken in adoption, then adoption can bemade. In the absence of such custom or usage, adoption will be invalid.

In Maya Ram v. Jai Narain (AIR 1989 P and H 203) the Punjab and Haryana High Courts held the adoption of a married Jat boy who was above 15 years of age as valid on the force of custom prevailing in that community.

ADOPTION OF CHILD OF ABOVE FIFTEEN YEARS OF AGE

According to section 10(iv), a person who has not completed the age of fifteen years can not be adopted. However, if there is a custom or usage applicable to the parties which permits such persons, being taken in adoption, then adoption can be made. In the absence of such custom or usage, adoption will be invalid.

This section relaxes the rigours of the age of the child only on the basis of custom.

Where in the State of Maharashtra a custom was established permitting the adoption of a boy above fifteen years of age, such adoption was held to be valid despite the provisions laid down in Section 10(4).

Recently the Supreme Court further observed on this point in Atluri Brahmamndam v. Anne Sai Bapuji (AIR 2011 SC 545) expressed view where custom in the community for adoption of a boy above the age of 15 years and said custom recorded in registered deed of adoption. The court has to presume that the adoption has been made in compliance with provisions of Act, such adoption was held to be valid despite the provisions laid down in Section 10(4) of the Act.

In Dhoba Bahera v. Jagabandhu Bahera, (AIR 2017 Ori. Page no. 6) the court observed that If adoption deed was executed when son had become 17 years of age, and there being no such custom the court can declare such adoption to be invalid.

Further Madras High Court in Veeran Maheshwari V. Girish Chandra has laid down if age of adoptive son at the time of adoption is 20 years and nothing on record showing custom or usage in community of parties permitting the persons above 15 years being taken in adoption, the adoption cannot be said to be valid.

ADOPTION OF AN ORPHAN.—

Under the present law an orphan could also be taken into adoption. In such cases the guardian of the orphan can obtain the permission of the court to this effect and thereafter could give the child in adoption.

ADOPTION OF BOY OR A GIRL OF UNSOUND MIND

Under the Act a boy or a girl of unsound mind could also be validly taken in adoption. There is no prohibition with respect to adoption of such persons.

AN ONLY SON.—

An only son could also be given in adoption under the Act which was prohibited by the old text.