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Introduction

Every child has the right to a safe home and loving family. Unfortunately not many get the sanctity of a family to nurture. It is therefore a nations duty to do everything possible to ensure that every child is provided with that nurturing environment and reaches his/her full potential. Adoption is perhaps the best alternative for a child to be a part of a permanent family and adoption can offer that advantage to a child for whom a suitable family can be found is his own or other Country. It is a process whereby a person assumes the parenting for another and, in so doing, permanently transfers all rights and responsibilities, along with filiations, from the biological parent or parents. Adoption is a constantly evolving institution that changes to t the perceived needs of children who need families, whether they are healthy newborns, children in foster care, children from other countries, or children of all ages with special needs. In addition to the triad members of adopted children, adoptive parents, and birth parents, there are many others who are actively involved in adoptions. State and federal legislators enact new laws or rewrite old laws to fulll new needs or to manage newly recognized problems. Sometimes new laws are made in order to correct unanticipated problems that old laws created, as with the Adoption and Safe Families Act (ASFA).This federal law was written because the earlier federal law, the Adoption Assistance and Child Welfare Act of 1980, had the unanticipated consequence of keeping abused and neglected children in foster care indenitely rather than returning them to their parents or placing them for adoption with relatives or nonrelatives. ASFA restored the needs of children as the paramount concern, as we discuss in the entry on ASFA.
Indian citizens can adopt in India under three major legislations: the Hindu Adoption and Maintenance Act of 1956, the Guardians and Wards Act of 1890 and the Juvenile Justice (Care and Protection) Act of 2000, amended in 2006. The Hindu Adoption and Maintenance Act, 1956 (HAMA) This Act covers Hindus, Buddhists, Jains or Sikhs. Some relevant parts of the Act are: Married couples or single adults can adopt; Legally the man adopts with the consent of his wife; A single man or woman can adopt; If a biological child already exists in the family, a child of the opposite sex has to be adopted; Children adopted under this Act get the same legal rights as a biological child might; Children under the age of 15 years can be adopted; A single man adopting a girl should be at least 21 years older than the child; A single woman adopting a boy should be at least 21 years older than the child; and Adoption under this act is irrevocable. The Guardians and Wards Act, 1890 (GWA)

Before the Juvenile Justice (Care and Protection) Act of 2000, this was the only legislation that allowed non-Hindus to adopt. However, this act ended up being the first secular law that allowed for a child to be adopted in India. The salient points of this Act are: The parent adopting is a guardian and the child is a ward, meaning that the same rights of a biological child arent inherent; Anyone under the age of 18 years can be a ward; The guardianship can be revoked by the courts or by the guardian; A will is required for any property/goods to be bequeathed to the child; This will can be legally contested by blood relatives; Both spouses can legally be guardians (versus HAMA where the man adopts with the consent of his wife); and Single people can adopt without any age difference restrictions. The Juvenile Justice (Care and Protection) Act of 2000, amended in 2006 (JJ Act) The JJ Act is meant mainly for the care and rehabilitation of children in conflict with the law. There was the need for a law that would allow children the same rights, whether they were adopted or biological. There was also the need for a law that delinked adoption from the religion of the adoptive parent(s). The JJ Act filled this space and a tiny section was added on for adoption. The Amendment Act of 2006 has since expanded the provisions. The main strengths of this Act are: Any Indian citizen can adopt a child who is legally free for adoption; The adoptee gets the same rights that a biological child might; The religion of the adoptive parent(s) is not relevant; Single people can adopt; The adoption is irrevocable; Some time limits have been set to ensure that children are considered legally free for adoption earlier; and The thrust is on the best interest of the child. Section 2 (aa) of the Act defines adoption as the process through which th e adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all rights, privileges and responsibilities that are attached to the relationship. While the Act covers all of India, it is only possible to adopt under this Act in areas where the JJ Boards (provided under the Act) have been constituted. This is an ongoing process, with a majority of states issuing notifications constituting these boards.

CONCEPT OF ADOPTION
(UNDER HINDU LAW)

The Shastric Hindu Law looked at adoption more as a sacramental than a secular act. There has been an acute controversy not only among writers but also among judges whether in adoption the secular motive predominates or the religious motive predominates1. Some judges still insist that the object of adoption is two fold: to secure performance of one's funeral rites and to preserve the continuance of one's lineage. 2 Under the old Hindu law, there were many rules relating to adoption which could be supported only on the basis that adoption was a sacramental act. For instance, the following rules could be supported only on this basis: the adopted son must be a reflection of a son (saunaka); this prevented the adoption of orphans and illegitimate children; daughter could not be adopted; no one could have more than one adopted son; one could not adopt a child whose mother one could not marry when she was a maiden; thus, a daughter's son or sister's son could not be adopted as one could not marry one's sister or daughter. The same seems to be the reason for the rule that when widow adopted a son, it was always deemed to adoption to her deceased husband. The principle is responsible for the doctrine of relating back." 3(The doctrine of relating back may be illustrated by an example, say, when a widow, whose husband died, on 1.1.50, adopted son on 1.1.55, the adoption was deemed to have taken place on 1.1.50. The fiction was necessary so that it could be said that the Hindu did not die sonless). It is needless to say that, apart from the religious motives, secular motives were also important, such as man's desire for the celebrations of his name, for the perpetuation of his lineage, for providing security in the old age and for dying in satisfaction that one has left an heir to one's property. Which of the motives, religious or secular, were more important or dominant need not detain us here. One thing is certain that different people adopt with different motives, sometimes the motive may be base, just as one may adopt to despise a prospective heir who could take the property, in the absence of a son. Whatever it may be, the main purpose of law of adoption is to provide consolation and relief to a childless person. In modern law its purpose is also to rescue the helpless, the unwanted, the destitute or the orphan child, provide it with parents and a home, Whatever be the motives, the court need not enquire into them.4 In the present submission the Hindu Adoptions and Maintenance Act, 1956, has steered off clearly from all the religious and sacramental aspects of adoption and has made adoption a secular institution and secular act, so much so that even a religious ceremony is, now, not necessary for adoption. All adoptions after 1956 are secular, and, to be valid, must conform to the requirements of the Act. Nature of Adoption Adoption is one of those fictions of law which have been marshalled for furtherance of the individual interest. The law of adoption enables a childless person to make somebody else's child as his own.
1
2

See Mayne, Hindu Law and Usage, (11th Ed) 184-188. inder Singh v. Kartar Singh, AIR 1966 Punj 258. 3 Srinivas v. Narayan, AIR 1954 SC 379; IVaidu v. Naidu, AIR 1970 SC 1673; Matilal v. Sardar Mal, AIR 1976 Raj 40. 4 Shripad V. Dattaram, AIR 1974 SC 878.

Hindus foresaw this at the dawn of their civilization. Their ideal was not just to have a son but the adopted son must bear a reflection of the natural son. With this refinement, it was natural for them to hold that for all intents and purposes an adopted son was like a natural son. Such was the ideal that the adoption meant the removal of the child from the natural family and his transplantation in the adoptive family, so much so that all his ties with the natural family were severed (except that he could not marry any female) in the natural family whom he could not have married, had he not been adopted and all the ties in the adoptive family came into existence. He was not merely to the adoptive parents, but all relations on the paternal and maternal side in the adoptive family also came into existence, This also meant that he could not marry the daughter of his adopted parents, whether that daughter was natural born or adopted as she, by fiction of law, became his sister. This is also the position under the modern law. In the modern Hindu law, an adoption has the effect of transferring the adoptee from his natural family to that of his adopter's conferring on him thereby the legitimate natural born sons rights and privileges in the adopter's family. On the other hand, the adopted child loses all rights and privileges of a natural born child in the natural family. Under the old Hindu law, a son adopted by his widow was deemed to be her husband's son and therefore adoption related back to the date of death of her husband. Under the Act, adoption is effective from the date on which it is made, and the adopted child cannot divest any person of the property vested in him before adoption. The child, too, cannot be divested of the property vested in him before adoption. Adoption once made is Final and Irrevocable An adoption validly made cannot be cancelled by the adopter, natural parents or any other person. 5Nor can an adopted child renounce his adoptive parents and return to the family of his or her birth. 6This means that if a person makes an adoption, under no circumstances he or she gets rid of the child. An adopted child cannot again be given in adoption. 7Once an adoption has been duly made in accordance with law, it cannot be cancelled nor can the adopted child, the adoptive parents and the natural parents destroy the right of the adopted child.8 Agreement not to adopt invalid.an agreement not to adopt is void being against public policy. An adoption made by a person having capacity to adopt, in breach of any such agreement, will be valid. Under the Act even when an adoption is made in consideration of some pecuniary or proprietory benefit (irrespective of the fact whether consideration has passed or not), the adoption is valid, despite the fact that such an agreement is void.9 It is not necessary to enquire into the motive of adoption.10

Nand v. Bhupindra, AIR 1966 Cal 181; Gopal v. Kampta, AIR 1972 MP 193.

6 7

Section 15. S. 10(ii). 8 Gulkarin v Prahlad, AIR 1968 Raj 51; Gopal v. Kainta, AIR 1972 MP 193. 9 Kartar Singh v. Surjan Singh, AIR 1974 Sc 2102 (Punjab custom of appointment of an heir stands abrogated).
10

Dhanraj v. Suraj Bai, AIR 1973 Raj 7.

The Hindu Adoptions and Maintenance Act abrogates the old law, 11but only to the extent to which provision is made in the Act.12 Under Muslim law Under Muslim law adoption is not recognized. Muslims have no adoption law and thereby have to approach a court under Guardianship and Wards Act, 1890. When a Muslim adopts a child under this act, it is considered to taken under foster care under the act. Before the Shariat Act, 1937, adoption among Muslim was recognized by custom. Under the Oudh Act, 1869, Section 29, a Muslim talukadar was permitted to adopt.

11 12

Section 17. Naidu v. Naidu, AIR 1970 SC 1673.

EFFECT OF ADOPTION
Section 12 of the Act lays down ".An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be served and replaced by those created by the adoption in the adoptive family." In the natural family Under Hindu law, both old and new, the adoption of child means that the child is totally uprooted from the natural family and transplanted in the new Relationship with the members of the natural family.For secular, religious, or civil purposes the adopted child ceases to be the child of the natural family. His father and mother cease to be his parents and all relations on the father's Side and mother's side cease to be his relations. Only tie that he retains with his natural family is that he cannot marry any person in his natural family whom he could not have married before his adoption. The natural parents' right of guardianship ceases with effect from the date of adoption, whatever be the age of the child. Even if the child is below 5 years, its natural mother cannot claim its custody (which she would be entitled to otherwise under proviso to Section 6(a), Hindu Minority and Guardianship Act, 1956). When adoption of a married person is permitted, that person cannot give in adoption his son born to him prior to adoption,13 though a contrary opinion was expressed in a case under old law.14 Divesting of property.Proviso (b) to Section inif the Act provides that "any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth." Thus, any property that the child inherited from any relation before adoption will continue to be his property even after adoption. 15For instance, two brothers X and Y inherited property from their mother. Subsequently, the father gave away X in adoption. X will continue to be the owner of the property inherited by him from his mother before adoption. Or, take another example, the maternal grandfather of X died leaving behind a widowed daughter-in-law P, who has a right of maintenance against the grandfather. X inherited the property. Subsequently X is given away in

13

Sharad Chand v. Shanta Bai, AIR 1944 Nag 66 (FB).

14

Martand v. Narayan, AIR 1939 Born 305 (FB). Sizarad Chand v. Shanta Bai, AIR 1944 Nag 66 (FB).

15

adoption. X will retain the property inherited by him from his maternal grandfather, though he will be required to provide maintenance to P, so long as she is entitled to it.16 A son has an interest by birth in the Mitakshara joint family property. Such an interest does not vest any property in him. Therefore, if such a son is given in adoption, his interest together with any liabilities attached thereto cease on his adoption. His position is as if he died at the time of adoption. Under the Dayabhaga School this is not the law. Share of a Dayabhaga coparcener in the coparcenary is not a mere interest. It is a property vested in him. Therefore, if a Dayabhaga coparcener is given away in adoption, he would continue to retain his share in the coparcenary property. In the Adoptive Family The adopted child is deemed to be the child of the adopter for all purposes. His position for all intents and purposes is that of a natural born son; he has the same rights, privileges and the same obligation in the adoptive family.17 Relationship with the members of the adoptive familyThe adoption in Hindu law means complete transplantation of the child in the adoptive family. This means that he is not merely the child of the adoptive parents but he is also related to all relations on mother's side as well as father's side as if he is the natural born child of the family. Thus, father's and mother's parents are his grandparents. His adoptive parent's daughter is his sister and so on. But under the modern law as well under the old Hindu law if an unmarried person, a bachelor or a virgin, adopts a child, the child will have only one parent, adoptive father or adoptive mother, and he will have only one line, paternal or maternal, as the case may be. For example, if a virgin adopts a son, the child will have only maternal side, i.e., his adoptive mother's parents will be his maternal grandparents, but he will not have any paternal side, as the child has no father. Since all ties come into existence in adoptive family, the adopted child cannot marry any person (whether by natural birth or adoption) in the adoptive family, whom he could not have married had he or she been a natural child of the family. Guardianship, inheritance and maintenanceThe adoptive parents are the natural guardians of their adopted minor child, first the father, then the mother. If the adopted child is less than five years, then the adoptive mother will have preferential claim to the custody of the child. The position of an adopted child in respect of inheritance and maintenance is the same as that of the natural born child, if there is an adopted child and a natural child, both will inherit equally. The adopted child has the right of collateral succession both on his adoptive mother's side and adoptive father's side. In short, he will inherit in the adoptive family as if he is born in the adoptive family. Conversely all persons are entitled to succeed to him, if they would have succeeded to him had he been a natural child.

16

See Muthurishaman v. Sri Palani, (1969) 1 AIL,J 129.

17

Kesharpal v. State of Mah., AIR 1981 Born 115.

Similarly, his position is that of natural born child for the purposes of maintenance. He can claim maintenance against his adoptive parents or any person, against whom a natural child could have claimed maintenance. Conversely, he is liable to maintain all those persons whom a natural child has an obligation to maintain. The adopted child's right of maintenance ceases on his attaining majority.18 An adopted son can also exercise the right of pre-emption.19 Adoptive parent's right of disposing of the property,Section 13 of the Act lays down "subject to any agreement to the- contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will." Thus, an adoptive parent is in no way restrained in the disposal of his properties by reasons of adoption. Adoptive parent's right of disposing of his property is subject to any agreement to the contrary that might have been entered into between the adoptive parent and the natural parent on behalf of the child. 20The adopted child cannot demand any property, or its enjoyment during the life-time of his father even if there is an agreement that the adoptive father will not deprive him from inheritance, as question of inheritance will arise only on the death of the father; till then father has full rights to hold and enjoy properties. 21Under the Act, agreements restricting the power of alienation of the adoptive parent are valid.22 But if the deed restricting the right of alienation is invalid, the right of alienation remains.23 Divesting of property.Section 12(c) specifically lays down that 'the adopted child shall not divest any person of any estate which vested in him, or her, before the adoption.' The old Hindu law of divesting of property on adoption was very complicated and a constant source of litigation. 24Under the modern Hindu law, this source of litigation and consequent dissentions in Hindu families have been done away with by laying down that the adopted child cannot divest any person of the properties vested in him Or her before adoption. For instance, A died leaving his widow B and two daughters X and Y. On A's death B. X and Y inherited properties of A, each taking 1/3 share. This one-third share vests in each of them immediately on the death of A. If now B adopts a son P, P cannot divest B, X or Y. Resurrection of doctrine of relating backIn Sawan Ram v. Kalawati, 25A, a Hindu, died in 1948 leaving behind his widow W. W took her husband's properties as a limited owner. In 1954, W made a gift of some lands to her grand-niece, B. X, a collateral of A and presumptive reversioner, sued for a declaration that the gift to B was not binding on him. The trial court gave the declaration prayed for. B appealed, pending B's appeal in 1959, W adopted B's son P. Later in the same year W died. X sued for possession of lands. Since these lands were not in possession of W in 1956 (S. 14, Hindu Succession Act, 1956, converts only that widow's estate into her absolute property over which she had possession when the
18
19 20

Nand Kishore v. Bhupendra. AIR 1966 Cal 181.


Inder Singh v. Kartar Singh, AIR 1966 Punj 258. Chiranfilal Srtlal Goenka v. jasfit Singh. AIR 2001 SC 266.

21
22

Nand Kishore v. nhzipendra, AIR 1966 Cal 181.


Section 13.

23
24 25

Devi v. Dadi, AIR 1990 SC 1153.


For old law, see Krishnaniurthy v. Krishnainarthy, AIR 1927 PC 139; Akay v. Sarda Devi, AIR 1995 On. 212. AIR 1967 SC 1961.

Act came into force), she did not become full owner of these, and reversioner had the right to challenge alienations. P could succeed to these properties only as heir to W's deceased husband. And the Supreme Court held that a son adopted by a widow is also an adopted son of her deceased husband. Since no property vested in a reversioner, it could not be said that the Supreme Court's decision divested the property vested in X. But it did resurrect the doctrine of relating back and thus enabled the adopted son of a widow to inherit the property of her deceased husband. Sawan Ram was pleaded for a wider proposition in Sanabai v. Wasudeo,26 that an adoption made by widow in every case became the adopted son for her deceased husband and therefore would divest any person of the property vested in him after the death of his adoptive mother's husband. It was held that the adoption did not relate back to the date of the death of the husband and alienation made by the mother after the adoption was valid unless her power has been restricted by ante-adoption agreement. Adoption of a son by a coparcenerThe interest of a coparcener in a Mitakshara joint family property does not vest in him. Therefore, if a coparcener adopts a son or a sole surviving coparcener adopts a son, the adopted son will acquire an interest in the joint family property from the moment of his adoption as if he is born a natural son to the adopting coparcener. This is evident from the use of the words Tor all purposes' in Section 12. This will mean that the adopted son becomes a coparcener and will have all powers of a coparcener. He will be in a position to prevent his father from making improper alienation. And if father has made alienation after his adoption he can challenge it. This is true even in the case of a sole-surviving coparcener as the rule is that the moment a son is born to him, the coparcenary is revived and the usual restrictions on the power of a coparcener or karta come into existence. For instance, a coparcenary consists of three brothers A, B and C. A and B have natural sons, AS and BS. C, who has no son, adopts CS. CS will be a coparcener with A, B, C, AS and BS. If A as Karta of the joint family wants to alienate some property, CS, like any other coparcener, can take appropriate proceedings to prevent him from doing so. Adoption by a coparcener's widowIt seems that if a coparcener's widow adopts a son, he becomes a coparcener in the joint family. For instance, a Mitakshara coparcenary consists of three brothers A, B and C. C died in 1954 leaving behind his widow CW. By virtue of Hindu Women's Right to Property Act, 1937, CW took C's interest in the joint family property by succession as a limited owner. In 1956, by virtue of Section 14, Hindu Succession Act, 1956, she became an owner of this interest. In 1958, she adopts CS. Does it mean that CS becomes a coparcener in the joint family? In Ankush Narayan v. Janabai, Desai, J., remarked that the adopted son of the widow of a coparcener will also become a coparcener with the surviving coparceners of her husband. This view has been approved by the Supreme Court in Sita Bai v. Ram Chandra, 27and Vasant v. Dattu28." In Sita Bai there were two brothers A and B who constituted a Mitakshara. coparcenary. B died in 1930, leaving behind his widow, Sita Bai, who adopted
26

AIR 1979 Born 181.

27

AIR 1966 Born 174. AIR 1970 SC 343; See also Motilal v. Sarder, AIR 1975 Rai 40.

28

P on March 4, 1958. A died on March 13, 1958 leaving behind an illegitimate son Ram Chandra29. The Supreme Court held that P became a coparcener with A with effect from March 4, 1958 and therefore when A died on March 13, 1958 the coparcenary property passed to P by survivorship. Ramaswami, J. who delivered the judgment of the Supreme Court, did not refer to Sawan Ram case but specially approved Ankush Narayan. In Ankush Narayan case, the Bombay High Court allowed the adopted son to divest his adoptive mother's inheritance which had vested in her absolutely under Section 14, Hindu Succession Act. Ramaswami, J. relied on Gowli v. Commissioner of Income Tax30, for the proposition that under Hindu Law a joint family may consist of a single male member and widow of the deceased male members and that the property of a joint family does not cease to belong to a joint family merely it is represented by a single coparcener who possesses rights which an absolute owner of property may possess. The learned judge on this premise, observed that (on the basis of Sections 11 and 12) the child adopted by the widow becomes absorbed in the adoptive family to which the widow belongs, i.e., the child adopted is tied with the relationship of sonship with the deceased husband of the widow 'and' other collateral relations of the husband would be connected with the child through the deceased husband of the widow. Hirabai v, Babu Manika Ingots31, is an interesting case. It takes the reasoning of Sitabai a little further. The Bombay High Court took the view that a surrender made by a widow of her interest in the joint family property in favour of an adopted son was valid and that proviso (c) to Section 12 and =E:ction 13, Hindu Adoptions and Maintenance Act were meant only to protect the other rights vested in any person prior to the adoption and was not intended to deprive the adopted son of the right in the property belonging to the joint family wherein such would have got an interest by birth, the date of his birth only being fixed fictionally to the date of adoption. The words, 'any person' in proviso (c) did not include adoptive father or adoptive mother and it also did not include self-divestment which was the legal result of adoption with regard to those properties when such divestment was possible by reason of either natural birth of legal device of adoption. The court added that Section 13 was enabling provision and spoke of the property of the adoptive father or mother and not the property of the family. In conclusion, the court held that both the sections led to the conclusion that by reason of adoption, the child became adopted in the family and got an interest in the family property. In Krishnabai v. Ananda, 32the court observed that the joint family property vested in a, sole surviving coparcener could not be divested on his adopting a son. In our submission, it is not a correct view. As we would see later on in his work, the birth of a son to him or adoption by him or birth of a son to a coparcener's widow or an adoption by her, divests the sole surviving coparcener and such a son becomes a coparcener with him. On the other hand, in Yaslagadda v. Government of A.P33, the Andhra Pradesh High Court held that when a coparcener governed by the Mitakshara school is given in adoption, his undivided interest in the coparcenery property would continue to vest in him even after
29
30

AIR 1987 SC 398. AIR 1966 SC 1523. 31 AIR 1980 Born 315. 32 AIR 1981 Born 240. 33 AIR 1981 AP 19.

the adoption, since proviso (b) to Section 12 lays down that an adopted son would not be divested of the property already vested in him. The question that needs to be answered is : Does any property or interest vest in a coparcener? The answer to this question becomes important in the context of provisos (b) and (c) of Section 12, Hindu Adoptions and Maintenance Act, 1956 which lay down that no person including the adopted child will be divested of any property vested in him prior to adoption. Chinnappa o. Reddy, J. in Vasant v. Dattu34, said that no interest vests in a coparcener and when on the demise of a coparcener, his interest passes on to her widow by virtue of proviso to Section 6, Hindu Succession Act since that interest does not vest in her with the result that when she adopts a son later on, that son becomes a coparcener in the coparcenary now headed by her deceased husband's brother. In this view, the decision of the Andhra Pradesh High Court in Yaslagadda v. Government of A.P.35does not seem to be correct. Chinnappa Reddy, J. observed : The introduction of a member into a joint family by birth or adoption, may have the effect of decreasing the share of the rest of the members of the joint family, but it certainly does not involve any question of divesting any person of any estate vested in him. The joint family continues to hold that estate, but with more members than before. There is no fresh vesting or divesting of estate in any one. Rejecting the argument that on the death of a member of a joint family, the property may be considered to have vested in the remaining members by survivorship, the learned judge observed that undoubtedly the property passed by survivorship, but there was no question of any vesting or divesting in the sense contemplated by Section 12 of the Hindu Adoptions and Maintenance Act. The learned judge rightly added : "To interpret Section 12 to include cases of devolution by survivorship on the death of a member of the joint family would be to deny any practical effect to the adoption made by the widow of a member of the joint family" . Where an adoption has been made by the widow of the sole surviving coparcener, then he does not become a coparcener or joint owner of the property with his mother.36 Ante-adoption agreements,Section 13 lays down that subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will. In Duggina v. Duggina37, under an ante-adoption agreement, adoptive mother was given an absolute estate in certain properties. Subsequently, the adopted son died. The adoptive mother made a second adoption. It was held that the second adoption did not divest her of her estate. If there is no ante-adoption agreement fettering the power of adoptive parents, the adoptive

34 35

AIR 1987 SC 398. AIR 1969 Mad 72.

36

Land Officer v. Gurappa, AIR 1992 Kant 95. (1968) 1 APIKT 89; See also Jupudi v. Supudi, AIR 1994 Al' 134.

37

parents have full power of alienating their property. If ante-adoption deed restricting alienation is void, then no restriction on alienation remains.38 A question arose in Judupi Venkata Vijaya Bhaskar v. Judupi Kesava Rao, 39whether ante-adoption agreement amounts to payment of reward or consideration? In the instant case, the adopted son and the adopting father entered into an ante-adoption agreement that the son shall not set up any claim with regard to certain properties belonging to adoptive family. It was held it does not amount Lo reward in consideration of adoption. Relationship of Adopted ChildSection 14 Section 14 lays down as to how an adopted child will be related to certain relations of the adopter. The question may arise in the following circumstances (1) When a Hindu adopts with the consent of his wife, or wives, then in what relationship does the child stand with the wife or wives of the adopter ? (2) When adoption is made by a Hindu without the consent of his or her spouse, in those cases where the consent of the spouse can be dispensed with, then how is the child related to the spouse of the adopter ? (3) When an adoption is made by a widow or widower, then (a) in what relationship does the child stand with the spouse of the adopter whom he or she marries subsequently, or (b) in what relationship does the child stand to the deceased spouse of the adopter ? (4) When an unmarried person (virgin or bachelor) or divorcee adopts a child and subsequently remarries : (a) what will be the relationship of the child with the subsequent married spouse, and (b) in the case of a divorcee, what will be the relationship of the child with the divorced spouse ? Section 14 provides answers expressly to questions posed in (1), (3)(a) and (4)(a) and provides answers to other questions by implication. What are the answers by implications ? The Supreme Court answers them in one way and the Andhra Pradesh and Madras High Courts in another way. The present writers submit that implications drawn by the Supreme Court are wrong. We may examine the above situations one by one.

38

Deeraj v. Dadi, AIR 1990 SC 1153.


AIR 2003 Sc 3314.

39

Adoptions with the consent of the spouse.This is the usual case. When a male adopts a child with the consent of his wife, she becomes the adoptive mother of the child.40 If he has more than one wife, the senior most wife (senior by marriage, and not by age) becomes the adoptive mother and rest become stepmothers. 41Since a married woman cannot adopt even with the consent of her husband, the question of the relationship of her adoption with her husband does not arise, such an adoption being void. Relationship with a subsequently married spouse.When a virgin, bachelor, widow or widower adopts a child and marries subsequently, the spouse is related to the child as a step-parent (stepmother or stepfather).42 Relationship of the adopted child of a widow or widower or divorcee with the deceased spouse or exspouse.The questions are when a widow or widower adopts a child, is the child in any way related to the deceased spouse of the adopter? Or, when a divorcee adopts a child, is the child related to the divorced spouse? Many will agree that the second question need not be posed as the answer is obvious : there cannot be any relationship. Then, should our answer to the first question be any way different from that answer? Hindu law of adoption has all along taken the position that an adoption by an individual is an adoption in the adopter's family, therefore, the adopted child is related to the relations on his adoptive father as well as adoptive mother's side. This is also the position in modern Hindu law.43 But the relationship of the adopted child in the adopter's family will be in accordance with the state of adopter's family. If a bachelor or widower adopts a son, the child will have only one side, the paternal side, and will have no maternal side. Law cannot provide a mother to the adopted child of a bachelor. Even when a bachelor marries, his spouse will be a step-parent 44to the child. When an unmarried woman adopts a son, the same is the position. And it is submitted that the same will be the position of a divorcee (male or female) who adopts a child and then remarries. His or her new spouse will be a step-parent to the child and the ex-spouse (divorced spouse) is not related to the child. In our submission the same should apply when a widow adopts, but in Sawan Ram, the Supreme Court said that the deceased husband will be the adoptive father, though the Madras High Court in Arumugha v. Valiamall, 45took a contrary view. We may summarize the arguments of the Supreme Court. Bhargava, J., referring to Section 5(1), observed that two kinds of adoptions are envisaged by the Act : One is an adoption by a Hindu, and the other is an adoption to a Hindu. An adoption by a female Hindu, whose husband is dead, has finally renounced the world, has been judicially declared to be of unsound mind, or has ceased to be a Hindu are instances of the latter type of adoptions. Section 12 lays down that all ties of the child will be
40

Section 14(1).

41

Section 14(2). Section 14(3) and (4).

42

43 44

Section 12. (1980) MU J 494. 45 Sub-sections (3) and (4) of S. 14.

created in the adoptive family." Bhargava, J., then posed the question : which is the family of the widow? Most Hindus would unhesitatingly and promptly answered, "her deceased husband's family is her family" and like a Hindu Bhargava, J., also gave this answer. The next step then was inevitable. On adoption by a widow, the adopted son is deemed to be a member of the family of her deceased husband. The right which he has to succeed to the property of his being a son in the natural family is clearly replaced by a similar right in the adoptive family and thus he would succeed to the property of the deceased husband of the widow in the capacity of his adopted son. In our submission, the construction placed by the Supreme Court in Sawan Ram is strained and artificial and is the result of his Lordship's quest to find a father to the adopted son of a widow. To what anomalies and absurdities this construction may lead, if taken to its logical end may be demonstrated here (1) X, a Hindu, died issueless in 1956, leaving behind three widows, A, B and C. A, B and C each adopts a son (it cannot be argued that only the senior-most widow will have the right to adopt). This will mean that X will have three adopted sons. All the three were adopted to him, though not by him. Or, X, having two wives, A and B, adopted a son in 1957 with the consent of both. A became the adoptive mother. A died in 1958. Thereafter, B adopted a son to herself. Again, X will have two adopted sons, one adopted by him and the other adopted to him. Or, X died in 1956 leaving two widows A and B and a son from his wife A. B adopts a son. X will have a natural born son and a subsequently adopted son. Any of these feats could not have been performed by X when he was alive. (ii) A married woman whose husband has become a sanyasi adopts a son P and a daughter R. P and R will be son and daughter of the sanyasi husband. A married woman whose husband X has become a Muslim, adopts a son. X would have to become an adoptive father. A, a woman whose husband has been judicially declared insane, adopts a son, the insane husband becomes the adoptive father. A curious result : a sanyasi, a Muslim and an insane person, all having adopted sons. We may now analyse the arguments of Bhargava, J. (a) His Lordship seems to have been obsessed by the notion that adoption completely and finally transplants the child in the adoptive family and all ties are created in the adoptive family as if the child is a natural born child in the family. But the question is can these ties be pre-dated? If a child is born on, say, 1.1.71, can we predate his relationship of the family, say, to 1.1.60 ? If not, how can we pre-date the relationship of the adopted child to the death of the husband of the widow-adopter? Then the ties in the adoptive family can only be in accordance with the state of family at the time of adoption. This is to say, if a bachelor adopts, the child will have a father and will have no mother. The same will apply to a virgin's adoption. And it is submitted, the same should apply when a widow or widower adopts a child. (b) The second obsession has been the notion that widow's family is her husband's family. After the Hindu Widows' Remarriage Act, 1856, or at any date, after the Hindu Marriage Act, death dissolves the marriage, that is how a widow is permitted to remarry. That is to say, her position is, more or less, that of the divorced wife. Can we say, that the family of the divorcee wife is the family of her divorced husband? Obviously not, then why do we insist on saying that the widow's family is the family of her

deceased husband? (Can we say this just because she is entitled to succeed to her deceased husband, which she cannot do in respect of a divorced husband?) Most of us will agree that a divorced wife can have her own family (without remarriage), then why should we hesitate to say that a widow too can have her own family, independently of her deceased husband? If a widow can have her own family, just as a widower or divorcee can have his, then there will not be any difficulty in accepting that when a widow adopts, the child will have only an adoptive mother and will have no adoptive father. (c) Two little words in S. 5 'by' and `to'`adoption to' and 'adoption by' led his Lordship to think two types of adoptions are visualized by that Act (referred to earlier). It has been seen that perfoimance of ceremonies of adoption can be delegated to another person. Thus, when an aged, infirm, or sick person adopts a child, he adopts the child to himself or herself, but the ceremonies may be performed by someone else on his or her behalf. When someone else performs the ceremonies, the adoption is to the person on whose behalf ceremonies are performed by someone else on his or her behalf. When someone else performs the ceremonies, the adoption is to the person on whose behalf ceremonies are performed by someone else. When an adopter himself or herself performs the ceremonies, then adoption is by him or her and to himself or herself. It is only in the former sense that adoption can be made 'to' another person. (d) The Act provides for the relationship of the adopted child with the existing or future spouse of the adopter and not with the ex-spouse. It is submitted rightly so. It is not necessary to state the obvious, as in such a case the child has no relationship with the ex-spouse or deceased spouse. Thus, when a divorced woman, a widower or divorced man adopts a child, there is no relationship whatever, with the ex-spouse or deceased spouse of the adopter.

DOCTRINE OF RELATION BACK


Under the general Hindu law an adopted son was considered to be born in an adoptive family on the date of the adoption where the adoption had taken place during the adoptive father's lifetime and on the date of the adoptive father's death where the adoption had been made after his death. This doctrine of relation back was a logical and necessary corollary of the Hindu law principal that the adoption was always to the male. 46A consequence of the doctrine of relation back was that properties that had vested in someone else hut that had belonged to the adopter at the time of his death could he recovered by the adopted son except such properties as had been alienated by the intermediate owner for purposes binding on the estate. Section 12 makes a significant change in the position. By enacting that the adopted child becomes a child of the adoptive father or mother with effect from the date of adoption for all purposes, it has rejected the doctrine of relation back and precludes any assessment of the rights of the adopted child on that basis. The divestiture of the estate which was an off-shoot of the doctrine of relation back is expressly destroyed by section 12 proviso (c). Two decisions of the Supreme Court have tended to resuscitate the doctrine of relation back. In Sawan Ram v. Kalawati47the court has held that the adoption of a son by a widow after the commencement of the Hindu Adoptions and Maintenance Act of 1956 is not only to herself hut also to her deceased husband and that it relates back to the death of the husband for the purpose of determining the rights of the adopted son to succeed to the property of the deceased husband whether vested in her or in others. The Court reached that decision in the face of the express language of section 12. In Sita Bai v Ram Chandra48 which was also a case of adoption by a widow after coining into force of the Hindu Adoptions and Maintenance Act, the Supreme Court has held that where a widow of a predeceased coparcener adopted a son during the lifetime of a sole surviving coparcener (a brother of her husband), the adoption was in law to herself as well as to her deceased husband and the adopted son became a co-parcener and was entitled to succeed to the family of the adopted father, that is, to him and his collateral relations.

46 47

Agrawal K.B., Family Law in India, 2010, kulwer law international, Netherlands, pg no. 181-182 AIR 1967 SC 1767 48 AIR 1970 SC 343

Conclusion To conclude the trust of national policy of India for welfare of children is: To protect abandoned and destitute children, goal is to find a family for as many orphan children as possible and to safeguard their interest as visualized in the UN Convention on child rights and Hague Convention on Inter country adoption ratified by India government. The Best Interest of the Child is the guiding principle behind all adoption laws in India and social awareness programmes has helped to change the attitude of society and people towards adoption in India. The nations children are supreme important asset. Their nurture and solitude are responsibilities of nation. Childrens programmes should find a prominent part in national plans for the development of human resources so that children grow up to become robust citizens; physically fit, mentally alert and morally healthy endowed with the skills and motivation needed by the society. Equal opportunities for development to all children during the period of growth is the aim, as this will serve larger purposes of reducing inequality and increasing social justice.