HINDU ADOPTION - RULE & PROCEDURE

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, Jainas and Sikhs and to any other person who is not a Muslim, Christian, Parsi or Jew by religion REQUIREMENTS FOR A VALID ADOPTION No adoption is valid unless • The person adopting is lawfully capable of taking in adoption • The person giving in adoption is lawfully capable of giving in adoption • 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 data 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 Any 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 provision. CAPACITY OF FEMALE Any female Hindu a. who is of 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. Where the woman is married it is the husband who has the right to take in adoption with the consent of the wife. THE PERSON GIVING A CHILD IN ADOPTION HAS THE CAPACITY/ RIGHT TO DO SO: a. No person except the father or mother or guardian of the child shall have the capacity to give the child in adoption. b. 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. c. 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. d. 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 unknown - the guardian of the child may give the child in adoption with the previous permission of the court. The court while granting permission shall be satisfied that the adoption is for the welfare of the child and due consideration will be given to the wishes of the child having regard for the age and understanding of the child . The court shall be satisfied that no payment or reward in consideration of the adoption except as the court may sanction has been given or taken. THE PERSON CAN BE ADOPTED No person can be adopted unless a. he or she is a Hindu; b. he or she has not already been adopted; c. 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; d. 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. OTHER CONDITIONS FOR A VALID ADOPTION ARE FULFILLED a. a. 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 living at the time of adoption b. 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 living at the time of adoption; c. if the adoption is by a male and the person to be adopted is a male, the adoptive father is at least twenty one years older than the person to be adopted; d. if the adoption is by a female and the person to be adopted is a male, the adoptive mother s at least twenty one years older than the person to be adopted; e. the same child may not be adopted simultaneously by two or more parents; the child to be adopted must be actually given and taken in adoption with an intent to transfer the child from the family of birth. CEREMONIES RELATING TO ADOPTION The ceremonies relating to adoption are a. The physical act of giving and receiving, with the intent to transfer the peron being adopted from one family into another. b. The data homan, that is, oblations of clarified butter to the fire and c. Other minor ceremonies, such as putresti jag (sacrifice for male issue) The physical act of giving and receiving is essential to the validity of an adoption Datta homan and other ceremonies are not necessary as to the validity of an adoption. EFFECT OF ADOPTION 1. 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. However any property which vested in the adopted child shall continue to vest in such person 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. 2. Similarly the adopted child shall not divest a person of any estate which vested in him or her before adoption. 3. 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 will. The personal laws of Muslims, Christian, Parsis and Jews in India do not contain any provision of adoption. However these persons can adopt the children from orphanage by obtaining permission from the court under the Guardians and Wards Act . SON BORN AFTER ADOPTION Where a son is born after adoption to the adoptive father, (a) the adopted son does not, on a partition between hin and the after-born natural son, share equally with him as he would have if he were a natural son, but he takes- i. in Bengal, one third of the adoptive father's estate; ii. in Benaras, one fourth of the estate and iii. in Bombay and madras states, one fifth of the estate and (b) if the estate is impartible, the natural son alone succeeds to it. REGISTRATION The adoption deed is not required to be registered (except in Uttar Pradesh ). Except where it declares or reserves an interest worth Rs. 100 or more for a third person in an immovable property. However authority to adopt is required to be registered under section 17(3), Indian Registration Act.

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