THE HINDU ADOPTION AND MAINTENANCE ACT, 1956
CHAPTER II
ADOPTION
5. ADOPTION TO BE REGULATED BY THIS CHAPTER. –
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, and 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 her birth.
6. 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.
7. CAPACITY OF MALE HINDU 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 in necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.
8. CAPACITY OF A FEMALE HINDU TO TAKE IN ADOPTION.-
Any female Hindu-
a. who is 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.
NOTE
An unmarried woman and a woman who has been divorced can take a child in adoption. (Duni Chand v. Paras Ram, AIR 1970 Delhi 202)
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 mother, if alive, shall have equal right to give a son or daughter in adoption:
Provided that but such right shall not 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.
Clause 3rd has been omitted by Amendment Act of 2010 (w.e.f. 31-8-2010). Earlier, clause 3rd was as under:
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.
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 expression "father" and "mother" do not include an adoptive father and an adoptive mother.
(i-a) "guardian" means a person having the care of the person or a child or of both his person and property and includes -
a. a guardian appointed by the will of the child’s father or mother, and a guardian appointed or declared by a court, and
ii. "court" means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.
NOTE
Natural parents are only competent to give an adult in adoption and not the step mother.(Dhanraj Jain v. Suraj Bai, AIR 1973 Raj 7)
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).
11. OTHER CONDITIONS FOR A VALID ADOPTION.-
In every adoption, the following conditions must be complied with:-
i. if the 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.
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 or its both (or in the case of an abandoned child or 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 homam shall not be essential to the validity of adoption.
NOTE
Any adoption made in derogation to the conditions laid down in Section 11 would be invalid. ( Golak Chandra v. Kratibas, AIR 1979 Ori 205). Under the Hindu Law the ceremony of giving and taking is essential for the valid adoption (L.S. Kothari v. S.R. Kumar, AIR 1961 SC 1978.
