ADOPTION LAWS IN INDIA: REVIEWS AND RECOMMENDATION NEEDED

ANWESH PANDA
FAMILY LAW 1
215059
WINTER SEMESTER

I. INTRODUCTION
Adoption as a legal concept was available only among the members of the Hindu community except
where custom permits such adoption for any section of the polity. Only Hindus were allowed to legally
adopt the children and the other communities could only act as legal guardians of the children.
Adoption is the entry or admission of stranger child to a family at the place of child by birth.
Adoption has always been considered as a wonderful opportunity to provide a child with home and
parents. It offers an excellent alternative to institutional care of destitute, abandoned and neglected child
in an atmosphere of love, affection and understanding which only a family can provide. Through this
project the only aim of the researcher is to collect as much data and information attached to the
concept of adoption in India including adoption in Hindu Law, Muslim Law and other religions
prevalent in India.1
In the early days, the practice of adoption was shrouded in the secrecy, which was restricted in an Indian
traditional family. The tradition at that time was that, childless couples adopt a child with a view to
ensure the continuity of tradition and to avoid alienation of property.2 The cases of adopted child being
changed as a biological child by means of various subterfuge was also significant in those days.
Although there is no general law of adoption, yet it is permitted by a statute amongst Hindus and by
custom amongst a few numerically insignificant categories of persons. Since adoption is legal affiliation
of a child, it forms the subject matter of personal law.3 The religion specific nature of adoption laws
was a very conservative step. It reinforced practices that were unjust to children and hindered the
formation of a Uniform civil code. Article 44 of the Indian Constitution declares that The state shall
Endeavour to secure for citizens a Uniform Civil Code throughout the territory of India.

1 S. Aarthi Anand, and Prema Chandra. Adoption Laws: Need for Reform. Economic and Political Weekly 37.38
(2002): 38913893.

2 Groza, Victor. Social Service Review 80.3 (2006): 558560

3 Mayne, John D.. Adoption in India. Journal of the Society of Comparative Legislation 1.2 (1899): 237239

Over the years several attempts were made to formulate a general secular law on adoption. The attempts
of Parliament in this direction did not bear fruit, all these went in vain on account of a number of
reasons. The history of all such efforts does not bring credit to the secular credentials of the Indian
polity.
A. MEANING OF ADOPTION

Adoption means the process through which the adopted child is permanently separated from his
biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges
and responsibilities that are attached to the relationship. Adoption of orphan, abandoned and surrendered
children in India is governed by a set of guidelines notified by Government of India.4
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 tie with the old family comes to an
end. The concept of adoption is concerned with Hindus only. Concept of adoption can be traced even
from Vedic times. The ancient texts Dattaka Mimamsa, Dattaka Chandrika, Manu, Yagnavalkya,
Gautama, Baudhayana, and Kautilya etc well refer to this concept.
The adoption is not an institution peculiar to Hinduism, but owes its origin to the social communism
peculiar to the primitive races. In early times, children irrespective of their sex were taken in adoption.
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.5

4 International Encyclopedia of Social Sciences, Vol. 1 p.95

5 Hindu Adoptions and Maintenance Act ,1956, s. 8

B. ADOPTION UNDER HINDU LAW: ANCIENT PERSPECTIVE

Adoption is the admission of a stranger to the privileges of a child by birth- a legally recognized form of
affiliation. The adopted son is uprooted from his natural family and transplanted in to adoptive family
like a natural son.6 Adoption is a process to incorporate a child permanently into a family with all the
rights of a natural child, in which he was not been born7. Traditionally, a child was adopted for temporal
and spiritual purposes and more recently, to satisfy the emotional and parental instincts of the adopters.
Manu says, 'by a son, a man attains victory over all people; by a son's son he enjoys immortality;
thereafter

by

the

son

of

that

grandson

he

and

reaches the solar abode The Shastric

Hindu Law looked at adoption more as a sacramental than secular act. Hindus believed that one who
died without having a son would go to hell called poota and it was only a son who could save the father
from going to Poota. This was one of the reasons to beget a son.
Ancient Hindu Shastras recognized Dattaka and Kritrima as types of sons. Dattaka son were further sub
divided into two types Datttaka Chandrika and Datttaka. .Datttaka Chandrika was the adoption not so
necessary, adoption which was optional. Datttaka Shishoma was the adoption that was compulsory for
the performance of the funereal rights and for the continuance of the lineage. In the Hindu Shastras, it
was said that the adopted 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 relations on the paternal and
maternal side in the adoptive family also came into existence. This means he cannot marry the daughter
of his adoptive parents, whether the daughter was natural-born or adopted.8 In the modern adoption laws,
the main purpose is considered to be to provide consolation and relief to a childless person, and on the
other hand, rescue the helpless, the unwanted, the destitute or the orphan child by providing it with
parents.

6 Adoption. Adoption. The International and Comparative Law Quarterly 19.3

7 Pollack,Daniel."ClassicalReligiousPerpsectivesOfAdoptionLaw".NotreDameLawReview79.5(2004):55.56.Print.
8

C. ADOPTION UNDER HINDU LAW: PRESENT STATUS

The present scenario of adoption is far away from the sacramental aspect. The present rule of adoption is
governed by the rules and regulations prescribed by the statutory laws laid down by the legislators.
Currently, the adoption under Hindu Law is governed by The Hindu Adoption and Maintenance Act,
1956.The Hindu Adoption and Maintenance Act,
1956 extends to only the Hindus, which are defined under Section-2 of the Act and include any person,
who is a Hindu by religion, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana
or Arya Samaj, or a Buddhist, Jaina or Sikh by religion, to any other person who is not a Muslim,
Christian, Parsi or Jew by religion. It also includes any legitimate or illegitimate child who has been
abandoned both by his father and mother or whose parentage is not known and who in either case is
brought up
as a Hindu, Buddhist, Jaina or Sikh.Adoption is recognized by the Hindus and is not recognized by
Muslims, Christian and Parsi.9
The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to minority and
guardianship. As in the case of unmodified law, it has upheld the superior right of father. It lies down
that a child is a minor till the age of 18 years. Natural guardian for both boys and unmarried girls is first
the father and then the mother. Prior right of mother is recognized only for the custody of children below
five. In case of illegitimate children, the mother has a better claim than the putative father. The
act makes no distinction between the person of the minor and his property and, therefore guardianship
implies control over both.10 The Act directs that in deciding the question of guardianship, courts must
take the welfare of child as the paramount consideration. Section 6 of the said Act, provides about the
natural guardians of a Hindu minor. Section 7 of the very Act speaks about the natural guardianship of
adopted son

9 Lakshmi,Rama."IndiaMovesToSpeedUpAdoption".TheGuardian2015.Web.23Jan.2016.
10 Lakshmi,Rama."IndiaMovesToSpeedUpAdoption".TheGuardian2015.Web.23Jan.2016.

II. A. STATUTES GOVERNING ADOPTION IN RECENT TIMES: HINDU LAW

1) The Hindu adoption and Maintenance act, 1956

Adoption in the Hindus is covered by The Hindu Adoptions Act and after the coming of this Act all
adoptions can be made in accordance with this Act. It came into effect from
21st December, 1956. Prior to this Act only a male could be adopted, but the Act makes a provision that
a female may also be adopted. This Act extends to the whole of India except the state of Jammu and
Kashmir. It applies to Hindus, Buddhists, Janis and Sikhs and to any other person who is not a Muslim,
Christian, Parsi by religion.
The Hindu Adoptions and Maintenance Act (HAMA), 1956, provides for adoption of Hindu
children by the adoptive parents belonging to Hinduism. This is not applicable to other communities like
Muslims, Christians and Parsi. They have to recourse to Guardians and Wards Act, 1890, wherein they
become guardians of children. But the child does not have the status as it would have had, had it been
born to its adoptive parents. One of features of this Act is that no Hindu person can adopt a son or
daughter, if they already have a child of that sex. Often the intentions behind the law are good, but the
methods adopted fall short. The HAMA provides that there should be an age difference of 21 years
between the adoptive parents and the adopted child whenever they are of opposite sex. This is intended
to prevent sexual abuse.11
Requirements for a valid adoption
Section 6 enumerates the requisites of a valid adoption. It lays down that no adoption shall be valid
unless the person adopting has the capacity as also the right to take in adoption; the person giving in
adoption has the capacity to do so; the person adopted is capable of being taken in adoption, and the

11

adoption is made in compliance with the other conditions mentioned in Chapter II. In the Hindu
law the requirements for a valid adoption.12 The Act reads,
I.

The person adopting is lawfully capable of taking in adoption

II.

The person giving in adoption is lawfully capable of giving in adoption

III.

The person adopted is lawfully capable of being taken in adoption

The adoption is completed by an actual giving and taking and the ceremony called datta homan (oblation
to the fire) has been performed. However this may not be essential in all cases as to the validity of
adoption?
Who May Adopt
Capacity of male (Section 7)
Section 7 of the Hindu Adoptions and Maintenance Act, prescribes the general capacity of a Hindu
male to take a son or a daughter in adoption if he is of sound mind and not minor. Similarly, section 8 of
the Act empowers a female Hindu to take a son or daughter in adoption subject to the fulfillment of
conditions prescribed in the Act.13 Section 10 speaks about the persons who may be adopted. This
section provides that a child male or female is capable of being taken in adoption if he or she is a
Hindu and not already been adopted. 14Any male Hindu, who is of sound mind and is not a 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 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 one wife living at the time of adoption the consent of all the wives is necessary
unless the consent of one of them is unnecessary for any of the reasons specified in the preceding
12 Hindu Adoption and Maintenance Act, 1956, s.6
13 Hindu Adoptions and Maintenance Act, 1956, s.7
14 Hindu Adoptions and Maintenance Act 1956, s.10

provision. The 1956 Act now provides for adoption of boys as well as girls. By virtue of the proviso to
Section 7, the consent of wife has been made a condition precedent for adoption by a male Hindu. The
mandatory requirement of the wife's consent enables her to participate in the decision making process
which vitally affects the family. If the wife finds that the choice of the person to be adopted by the
husband is not appropriate or is not in the interest of the family then she can veto his discretion.

Who may give a child in Adoption

No person except the father or mother or guardian of the child shall have the capacity to give the child in
adoption. 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. 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 mother15

WHO MAY BE ADOPTED

No person can be adopted unless:
he or she is a Hindu;
he or she has not already been adopted;
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;
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

15 Hindu Adoptions and Maintenance Act,1956

Thus, these are the rules and regulation prescribed for determining as to what is the capacity to adopt, to
give in adoption and to be adopted.

EFFECTS OF ADOPTION
Section 12 declares that from the date of the adoption, an adopted child is deemed to be a child of
his/her adoptive father or mother for all purposes and his ties in the family of his or her birth shall stand
severed and replaced by those created in the adoptive family. In Kartar Singh V. Gurdial Singh16
where the respondent who was adopted by his maternal grandfather claimed property rights in the family
of his birth, the court said that upon adoption no rights remain in the family of birth.17
Proviso (a) to this section contains a restriction on the marriage of adopted child with a person to whom
he or she could not have married if he or she had continued in the family of his or her birth.
Clause (b) of the proviso saves the vested right of the adopted child in the property subject to the
obligations, if any, attached to the ownership of such property, including the obligation to maintain
relatives in the family of his or her birth.

Likewise, clause (c) to the proviso lies down that the adopted child shall not divest any person of any
estate vested in him or her before the date of adoption. Section16 which embodies a rule of presumption
lays down that whenever any document registered under any law for the time being in force evidencing
adoption and signed by the person giving and person taking the child in adoption is produced before any
court, then it shall presume that the adoption has been made after complying with the provisions of the
Act unless proved otherwise.
16 Kartar Singh vs Gurdial Singh, (2008) 151 PLR 395
17 Effects of Adoption - Some Unsolved Issues, Dr. N Balu (2001) 8 SCC (Jour) 1

2) HINDU MAINTENANCE & GUARDIANSHIP ACT, 1956

The Hindu Minority and Guardianship Act, 1956 has codified laws of Hindus relating to minority and
guardianship. As in the case of unmodified law, it has upheld the superior right of father. It lays down
that a child is a minor till the age of 18 years. Natural guardian for both boys and unmarried girls is first
the father and then the mother. Prior right of mother is recognized only for the custody of children below
five.
In case of illegitimate children, the mother has a better claim than the putative father. The act makes no
distinction between the person of the minor and his property and, therefore guardianship implies control
over both. The Act directs that in deciding the question of guardianship, courts must take the welfare of
child as the paramount consideration. Section
6 of the said Act, provides about the natural guardians of a Hindu minor. Section 7 of the very Act
speaks about the natural guardianship of adopted son.

II. C. OTHER STATUTES /AGENCIES / COMMITTEES FOR ADOPTION

1) Central Adoption Resource Agency (CARA)

CARA is an autonomous body and also ratified Hague Convention of 1993 and the United Nation
Declaration of the Rights of the Child adopted by the General Assembly of the United Nations in 1989

on inter country adoption. Later Juvenile Justice (Care and Protection of Children) Act, 2000 was passed
for children in need of care and protection. Juvenile Justice Act, 2000 provides for the Child Welfare
Committee. This Committee has the sole authority to declare the child in need of care and protection
who are orphan, abandoned or surrendered free for adoption.18
Inter-Country adoption is relatively a new concept. It did not find place in the top priorities of the
legislators. There was not and still is not a legislation exist which primarily Adoption in India has a
flavour of antiquity. All over the world the concept of adoption has
evolved and has become child centric. In India the change has just begun. Some
modifications in adoption laws through Juvenile Justice Act are a welcome step, the fact
however remains that the approach to adoption as a child care arrangement is not yet fully developed
provides for the rules regarding Inter-Country adoption.

18 Johari,Aarefa."AdoptionRulesAreChanging,ButCanTheNewSystemReallyGiveMoreChildrenAHome?".
Scroll.in(2015):n.pag.Web.24Jan.2016.

CONCLUSION

This project is a comprehensive and exhaustive research on the topic of Adoption

laws in India: review and recommendation needed. Adoption has always been
considered a wonderful opportunity to provide the child with a home and the
parents with a child. It offers an excellent alternative to institutional care for an
abandoned, destitute or neglected child in an atmosphere of happiness, love and
understanding which only a family can provide. This project consists of chapters
which gives an exhaustive analysis of the topic of Adoption. This project gives the
comprehensive study of the laws relevant to adoption. The existing rules,
regulations, statutes, case laws and changes that are a need of the time.
Adoption as a legal concept was available only among the members of the
Hindu community except where custom permits such adoption for any section of the
polity. Only Hindus were allowed to legally adopt children and the other
communities could only act as legal guardians of the children. Adoption is the
transplantation of a child 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 child is then
taken as being born in the new family and acquires rights, duties and status there
only, and his tie with the old family comes to an end.

BIBLIOGRAPHY
STATUTES:
1. The Hindu Adoptions and Maintenance Act (HAMA), 1956
2. The Guardians and Wards Act 1890.
3. The Juvenile Justice (Care and Protection of Children) Act, 2000
4. The Juvenile Justice Care and Protection of Children Amendment Act,
2006
5. The Central Model Rules under Juvenile Justice Act

GUIDELINES:
1. Guidelines issued by Central Adoption Resource Authority
2. A Report on International Meet on Adoption- December 2003
3. Guidelines for Adoption from India 2006- CARA
4. The Juvenile Justice Act 2000
5. UN Convention on the Rights of Child (CRC)
6. Hague Convention

CASE LAWS:
7

(i) Manuel Theodore DSouza & Anr. Bombay High Court (Justice Rebello)
8

(ii) Andrew Mendez & others v. State of Kerala (judgment

by Kerala High Court pronounced on 19.02.2008)

(iii) Vinod Krishnaan v. Missionaries of Charity

iv) G. Appaswami Chettiar v. Sarangapani Chettiar

v)Laxmi Kant Pandey v. Union of India
1171/1982

11

10

& others [W.P. (Crl.) No.

vi) AIR 1984 SC 469

vii) AIR 1984 SC 469
viii) Atluri Brahmanandam (D) Thr. Lrs. vs Anne Sai Bapuji