Who is allowed to adopt a child?

In India, an Indian, Non Resident Indian (NRI), or a foreign citizen may adopt a child. There are specific
guidelines and documentation for each group of prospective adoptive parents. A single female or a
married couple can adopt a child. In India, a single male is usually not eligible to be an adoptive parent.
An exception to this rule is the noted dance instructor Sandip Soparrkar, who has recently adopted a
young boy. This is a special case rather than the norm. A single man desiring to adopt a child may be
eligible if he applies through a registered agency. However, he will still only be able to adopt a male child.

What are the conditions to be fulfilled by an adoptive parent?

An adoptive parent should be medically fit and financially able to care for a child. A person wishing to
adopt a child must be at least 21 years old. There is no legal upper age limit for parents but most adoptive
agencies set their own benchmarks with regard to age. For a child who is less than a year old, the
adoptive parents can have a maximum combined age of 90 years. Also, neither parent must be older than
45 years.

In the case of adoption of older children, the age of the parents may be relaxed accordingly. For example,
for a one-year-old child, the age limit is 46 years, for a two-year-old child, it is 47 years and so on. The
upper age limit for an adopted child is 12 years while for an adoptive parent it is 55 years. In the case of
an adopted child with special needs, the age limit may be relaxed marginally by the state government,
depending on the evaluation of the case. However, in all cases, the age of the parent cannot exceed 55
years.

What are the laws governing adoption?

Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a child. The
adoption is under the Hindu Adoption and Maintenance Act of 1956. Under this act, a single parent or
married couple are not permitted to adopt more than one child of the same sex. Foreign citizens, NRIs,
and those Indian nationals who are Muslims, Parsis, Christians or Jews are subject to the Guardian and
Wards Act of 1890. Under this act, the adoptive parent is only the guardian of the child until she reaches
18 years of age.

Foreign citizens and NRIs are supposed to formally adopt their child according to the adoption laws and
procedures in the country of their residence. This must be carried out within two years of the individual
becoming a child's guardian. There is also a Juvenile Justice Act of 2000, a part of which deals with
adoption of children by non-Hindu parents. However, this act is applicable only to children who have been
abandoned or abused and not to those children who have been voluntarily put up for adoption.

Can a parent ask for a specific child?

An adoptive parent is allowed to ask for a child, as per her preferences. For example a parent may ask for
a child of a certain age, gender (if it is the first child in the family), skin colour, religion, special features,
health condition, etc. However, greater the specifications, more difficult it is to find a child who conforms
to them. This restricts the pool of children available for adoption.

Depending on the adoptive parent's desired details, children are scrutinised to find a suitable match.
When a child with the desired characteristics is found, she is shown to the prospective parents. In case
the parents are unhappy with the selection, about two more children with the same characteristics may be
presented to the parents.
The entire adoption process takes some months to complete. However, when all the hurdles are cleared,
you are ready to welcome your new child to the family.

Although it is less common for families to adopt children

from India, it is certainly something that should be considered.  There are more than 11 million
children, mostly girls, who are abandoned in India.  Even worse, there are several newborn babies
that are being dumped each week because their mothers simply cannot afford to take care of them. 
The futures of these children become grimmer each day.

In order to adopt a child from India, a couple must be financially secure.  That means having a stable
income, adequate housing and adequate funds to provide for a child.  A couple must be together for
five years or more and be between the ages of 30 to 55 years old.  While it is possible for a single
person to adopt a child from India, at this time same-sex couples cannot.

To get started in your journey to adopt a child from India, you first need find a reputable adoption
agency in your own country.  Make sure that the agency is recognized by the Indian Central Adoption
Resource Agency.

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Also check with the adoption agencies eligibility requirements, as they all have different criteria you
will have to meet.  For example, some agencies require that at least one of the adoptive parents is of
Indian descent.  That is why it is best to narrow down your search to several adoption agencies before
choosing just one.

Once you have found an adoption agency to work with, you will then be required to undergo a home
study.  A home study is done by a social worker who comes to the home to assess various things. 
The social worker will either be provided for you on behalf of the adoption agency, or you will have to
find your own social worker.

For the home study, the social worker will look at your family’s financial situation, the health of your
family members and how apt you are to taking care of a child.  The social worker will take many
factors into consideration, so be prepared to offer a lot of personal information.  This is only to ensure
that the child will be placed in a good home.

Once the home study is completed, it is sent to a placement agency in India.  Priority is always given
to those adoptive couples who live in India first, which makes it longer and harder for other couples to
adopt.  When everything has been cleared however, the couple is granted permission to adopt a child
from India.  The process takes about 2 to 13 months to complete, but these are ideal time frames.

When you have received clearance to travel to India, you may do so to adopt your child.  Some
adoption agencies may even provide you with an escort that will bring your new child home to you.

Why Adopt > Adoption Types

There are two commonly recognized methods for adopting a child:
    - Independent Adoptions
    - Agency Adoptions

Independent Adoption: This method is referred to when the prospective adopting

parents and prospective placing parents have located each other. They use attorneys
or other intermediaries, as defined by state law. For international adoption from
India, independent adoptions are not advisable, since the U.S. and Indian
governments only allow adoptions through authorized agencies.

Agency Adoptions: This method is made possible through the involvement of

authorized agencies. For international adoption from India, both a U.S. agency and
an Indian agency work together to make the adoption happen. Agency adoptions
provide the greatest assurance of monitoring and oversight, since agencies are
required to adhere to licensing and procedural standards.

Regardless of which adoption method is used, both the adoptive parents and the birth
parents must consider the different "openness" alternatives available:
    - Closed Adoptions
    - Semi-Open Adoptions
    - Open Adoptions

Closed Adoption
A closed adoption is one in which the birth parents have little or no control over the
placement of their child. In a closed adoption, the birth parents are not typically
informed about their child's health or whereabouts. Likewise, the child's genetic
history may not be available to the adoptive parents.
Semi-Open Adoption
In a semi-open adoption, the birth parents may specify particular characteristics with
regard to the adoptive family. The birth parents may also meet the adoptive parents,
either pre-delivery or after placement, on a first name basis. After placement, the
birth parent may receive pictures and letters from the adoptive family, through the
agency.

Open Adoption
In an open adoption, the birth parents specify the type of family they consider most
appropriate as a placement for their child. They meet the adoptive family prior to
placement and can share identifying information with them. An open adoption is
considered a life-long relationship with ongoing contact over the years. In this type
of adoption, adoptive parents and their children know medical and genetic
information about the birth family. In addition, the families can share other
information that might help in dealing with the emotional issues that often
accompany adoption.

Informal open adoptions have occurred for centuries, whereby grandparents, aunts
and uncles, or godparents raised children not born to them but whose parents were
known to them. However, the concept of formal open adoption is quite new-less
than 20 years old- and it is a very controversial concept. Open adoptions can raise
questions that do not always have good answers. Also, the degree of openness is a
well-debated subject.

(We have not yet come across open adoption amongst Non-Resident Indians -
NRIs.)
 

Why Adopt > Religious Views > Hinduism

Adoption has existed among Hindus since ancient times. In fact, there are examples
of adoptions in Hindu epics, namely, Mahabharatha and Ramayana. Lord Krishna,
son of Devaki and Vasudeva, was adopted by Yasoda and Nandagopa; Karna, son of
Kunti, was adopted by the Athiratha family. Another illustrious example is Sita,
daughter of Bhumadevi, who was adopted by King Janaka. It is interesting to note
that there was nothing secretive about the adoption of Krishna and Sita. However,
Karna's situation was different. Kunti hid the news from Karna until the very last
minute, which caused considerable agony for Karna. Such stories from the epics
give us food for thought as to how and when to discuss adoption with our children.

While the Hindu scriptures say that we are all equal in the eyes of God, and epics
clarify this through stories of the Lord, we do not come across many situations in
Hindu families where orphaned children have been adopted. In India, adoption has
been primarily restricted to the kith and kin, where the motive was performance of
the last rites by a son and inheritance of the property.

Adoption of a relative is accomplished by performing a religious ceremony, called

Datta Homa. However, there is no such well-accepted ritual for adopting an
orphaned child.

CHAPTER I:REVISED GUIDELINES TO REGULATE MATTER

RELATING TO ADOPTION OF INDIAN CHILDREN (1994)

Aims and Objects

1. 1 The objective of the present guidelines is to provide a sound basis for adoption within the frame work
of the norms and principles laid down by the Supreme Court of India in the series of judgments delivered
in L.K. Pandey vs. Union of India and Others between 1984 and 1991.

1.2 Adoption undoubtedly offers an important avenue for the care and protection of an abandoned,
destitute or neglected child in a family setting and provides an atmosphere of happiness, love and
understanding for the realization of his/her talents and potentials. It carries with it all the emotional,
physical and material security necessary for the proper development of the child and also serves as the
most reliable means of preventing situations associated with the abuse, exploitation and social
maladjustment of abandoned, destitute and neglected children.

1.3 The Government of India, in pursuance of its constitutional mandate, has evolved a National Policy for
the Welfare of Children. The thrust of this policy is summed up in the following words:

"The nation's children are a supremely important asset. Their nurture and solicitude are our responsibility.
Children's program should find a prominent part in our national plans for the development of human
resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally
healthy, endowed with the skills and motivations needed by society. Equal opportunities for development
to all children during the period of growth should be our aim, for this would serve our large purpose of
reducing inequality and ensuring social justice."

1. 4 There has been equally great concern for the welfare of children at the international level culminating
in the Declaration of the Rights of the Child, adopted by the General Assembly of the United Nations on
20th November, 1989. Thereafter, in various international fora conferences and seminars, this subject of
child welfare has continued to be constantly debated.

1.5 The National Policy for the Welfare of Children also stresses the vital role which the voluntary
organizations have to play in the field of education, health, recreation and social welfare services for
children and declares that it shall be the endeavor of the state to encourage and strengthen such
voluntary organizations.

Need for Family Support for the Development of the Children

1.6 It is an accepted fact that the balanced development of a child-emotional, physical and intellectual,
can be best ensured within the family, or where this is not possible, then in familial surroundings. The
responsibility for providing care and protection to children including those who are orphaned, abandoned,
neglected and abused rests primarily with the family, the community and the society at large. However,
since many traditional institutions including the family structure are undergoing vertical as well as
horizontal social changes on account of urbanization, industrialization and the general process of
development, family support to a child is not always available. It, therefore, becomes the responsibility of
the community, of the society and of the state to provide both institutional and non-institutional support to
destitute children. Government of India considers adoption as the best non-institutional support for
rehabilitation of children.

Traditionally, our society has been providing support through charitable institutions and non-institutional
activities like adoption, guardianship and foster care. Due to rapid changes in the social structure and
other related factors, the number of children who need care, protection and rehabilitation is on the
increase. It is, therefore, necessary not only to expand both institutional and non-institutional facilities for
the nurture of such children, but also to regulate and monitor all programs so as to ensure minimum
standards in all child welfare activities. Among non-institutional modes, the interest of the child can best
be served through adoption in a family. Further, it is also an accepted fact that the child develops best in
his or her own cultural and social milieu. Thus, placement of a child through adoption in an indigenous
setting would be ideal for his or her growth and development. Inter-country adoption, i.e. adoption of
Indian children by adoptive parents residing abroad, should be resorted to only if all efforts to place the
child with adoptive parents residing in India prove unsuccessful. Generally, in all matters concerning
adoption whether within the country or abroad, the welfare and interest of the child shall be paramount.
Therefore, private adoptions of abandoned, destitute and surrendered/relinquished children conducted by
unauthorized individuals, agencies or institutions should be discouraged and it should not be open to any
individual agency or institution whether owned or run by the Government or not to process an application
from a foreigner for taking a child in adoption. It should be the endeavor of Government to facilitate in-
country adoption and to regulate inter-country adoption of Indian children.

Review of Adoption Procedure

1.7 In pursuance of the Supreme Court directives, the Ministry of Welfare vide its resolution dated 4-7-
1989 formulated a set of guidelines to regulate, monitor and supervise programs pertaining to adoption.
That laid down the existing procedure and practices. The existing procedure and practices followed in the
case of intercountry. adoption were thoroughly reviewed by the Supreme Court in their subsequent
judgments dated 19th September, 1989, 14th August, 1991, 29th October, 1991, 14th November, 1991
and 20th November, 1991 respectively, in Writ Petition (CRQ No. 1171/ 1982 by Shri L.K. Pandey vs.
Union of India and others. The Ministry of Welfare after a careful study of all the judgments of the
Supreme Court of India and existing laws of the land and after taking into account the experience of the
concerned governmental as well as voluntary agencies and the changing social realities, decided to
modify these guidelines. In this direction, the Ministry of Welfare constituted a Task Force consisting of
members representing various voluntary placement agencies under the chairmanship of Mr. Justice P.N.
Bhagwati (The former Chief Justice of India).

Hindu Adoptions And Maintenance Act, 1956

[78 of 1956, dt. 21-12-1956]1[1]
 
1[1]
Act has been extended to Dadra and Nagar Haveli by Regulation 6 of 1963
An Act to amend and codify the law relating to adoptions and maintenance among Hindus
Be it enacted by Parliament in the Seventh Year of the Republic of India as follows:-
 
Chapter 1
Preliminary
1 Short title and extent
2 Application of Act
3 Definitions
4 Overriding effect of Act
Chapter II
Adoption
5 Adoptions to be regulated by this Chapter
6 Requisites of a valid adoption
7 Capacity of a male Hindu to take in adoption
8 Capacity of a female Hindu to take in adoption
9 Persons capable of giving in adoption
10 Persons who may be adopted
11 Other conditions for a valid adoption
12 Effects of adoption
13 Right of adoptive parents to dispose of their
properties
14 Determination of adoptive mother in certain cases
15 Valid adoption not to be cancelled
16 Presumption as to registered documents relating to
adoption
17 Prohibition of certain payments
Chapter III
Maintenance
18 Maintenance of wife
19 Maintenance of widowed daughter-in-law
20 Maintenance of children and aged parents
21 Dependants defined
22 Maintenance of dependants
23 Amount of maintenance
24 Claimant to maintenance should be a Hindu
25 Amount of maintenance may be altered on change
of circumstances
26 Debts to have priority
27 Maintenance when to be a charge
28 Effect of transfer of property on right to
maintenance
 
 
Hindu Adoptions And Maintenance Act, 1956
 
CHAPTER 1
PRELIMINARY
 
1 Short title and extent
(1) This Act may be called the Hindu Adoptions and Maintenance Act, 1956
(2) (2)              It extends to the whole of India expect the State of Jammu and Kashmir.
 
2 Application of Act
(1) This Act applies-
(a) to any person, who is a Hindu by religion in any of its forms or
developments, including a Virashaiva, a Lingayat or a follower of the
Brahmo, Prarthana of Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by
religion, unless it is proved that any such person would not have been
governed by the Hindu law or by any custom or usage as part of the law in
respect any of the matters dealt with herein if this Act had not been
passed.
Explanation : The following persons are Hindus, Buddhists, Jainas or
Sikhs by religion, as the case may be:-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus,
Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu,
Buddhist, Jaina, and Sikh by religion and who is brought up as a member
 of the tribe, community, group or family to which such parent belongs or
belonged; 2[2][**]
3[3]
[(bb) any child, legitimate or illegitimate who has been abandoned both
by his father and mother or whose parentage is known and who in either
case is brought up as a Hindu, Buddhist, Jaina or Sikh; and]
(c) (c)               any person who is convert or reconvert to the Hindu, Buddhist, Jaina
or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this
Act shall apply to the members of any Scheduled Tribe within the meaning of
clause (25) of article 366 of the Constitution unless the Central Government, by
notification the Official Gazette, otherwise directs.
(3) The expression "Hindu" in any portion of this Act shall be construed as if it
included a person who, though not a Hindu by religion, is, nevertheless, a person
whom this Act applies by virtue of the provisions contained in this section.
 
3 Definitions
In this Act, unless the context otherwise requires :-
(a) the expressions "custom" and "usage" signify any rule which, having been
continuously and uniformly observed for a long time, has obtained the force of
law among Hindus in any local area, tribe, community, group or family.
PROVIDED the rule is certain and not unreasonable or opposed to public policy :
PROVIDED FURTHER that, in the case of a rule applicable only to a family, it
has not been discontinued by the family ;
(b) "Maintenance" includes-
(i ) in all cases, provision for food, clothing, residence, education and medical
attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of and
incidents to her marriage ;
(c) "Minor" means a person who has not completed his or her age of eighteen years.
COMMENTS
2[2]
Word “and” omitted by the Act 45 of 1962
3[3]
Inserted by Act 45 of 1962
 Where the custom is such as permitting the second marriage during the lifetime of
the spouse cannot be given the force of law keeping in mind the statutory provision
against bigamy Raghuvira Kumar v Shankmukha Vadivu 1970 (2) MLJ 193
As per the custom prevailing in Himachal Pradesh, daughter is conferred a right
where for she can make a representation in non-ancestral property including the property
of a collateral- Ram Rakha v. Ram Rakshi 1983 HP 18
A custom is a particular rule which has existed either actually or presumptively
from time immemorial, and has obtained the force of law in particular locality, although
contrary to or not consistent with the general common law of the realm. A custom to be
held valid must have four essential attributes. First it must be immemorial; secondly, it
must be reasonable; thirdly, it must have continued without interruption since its
immemorial origin; and fourthly it must be certain in respect of its nature generally as
well as in respect of the locality where it is alleged to obtain and the person whom it is
alleged to affect.- Halsbury's law of England 4th ed. vol. 12 para 401.
 
 
4 Overriding effect of Act
Save as otherwise expressly provided in this Act.-
(a) any text, rule of interpretation of Hindu law or any custom or usage as part of that
law in force immediately before the commencement of this Act shall cease to
have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall
cease to apply to Hindus insofar as it is inconsistent with any of the provisions
contained in this Act.
COMMENTS
Where the adoption takes place following the custom, then the custom must be
such as not in contradiction of statutory provisions laid down as regards adoption. That
adoption which is against the provision of the Act is invalid.- Kartar Singh v. Surjan
Singh 1975 (1) SCR 742
 
 
 CHAPTER II
ADOPTIONS
 
 
5 Adoptions 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 provision 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 right of any person in the family of his or her birth.
COMMENTS
Adoption that takes place after the death of the husband contrary to the will of
deceased husband and after the Act came into force it was held that, legality of the
adoption is to be considered in accordance with the provision of Act, and the adoption
cannot be held invalid just for the fact that it was against the directions as mentioned in
the will of deceased husband.- Kavuluru V. Kuntamukkala 1971 (1) An. WR 134
 
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) (iii)             the person adopted is capable of being taken in adoption; and
(iv) (iv)             the adoption is made in compliance with the other conditions mentioned
in this Chapter.
COMMENTS
Where any of the requirements as laid down under s.6 are not strictly observed,
that non-observance of the requisite or requisites is enough to convert the adoption as
invalid one.-Dhanraj v. Suraj Bai 1972 Raj LW 612
 Doctrine of factum valet does not have its application in case the adoption is
against what is said by the provisions of the Hindu Adoption and Maintenance Act, 1956-
Lalla Ram v. Gohri Ram 1972 All WR (HC) 612
 
7 Capacity of a male Hindu to take in adoption
Any male Hindu who is 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 is necessary unless the consent of any one of the them is
unnecessary for any of the reasons specified in the preceding proviso.
COMMENTS
The person taking in adoption must not suffer from idiocy or insanity; he must
have the capacity enough to understand the nature of the Act and what would be the legal
effects of adoption . Simultaneously it is not the requirement the person concerned must
be possessed with a very high degree of intelligence. There is a very strong presumption
favouring soundness of mind.-Babubarelal v. Gulzari Devi 1979 All LJ 1333
Deaf and dumb but possessed with the capacity to express through signs and
gestures, though not clearly, is to be taken as a person of sound mind.-Ambrish Kumar v.
Hatu Prasad 1981 HLR 781
Proviso places a restriction as concerned to right to take in adoption that makes
the consent of the wife a necessity so as to make the adoption valid. The consent must be
obtained prior to the civil adoption takes place and not later on where the proviso is
disregarded adoption is not valid.-Badrilal v. Bheru 1986 (1) HLR 81.
In the case of divorce the consent is not necessary but in the case of judicial
separation, consent would be necessary. In case of two wives, consent must be of both the
wives despite the fact that one of them was not living under the same roof for a big job of
twenty or thirty years.-Bhooloo Ram v. Ram Lal 1989 (2) HLR 162
  
8 Capacity of a female Hindu to take in adoption
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.
COMMENTS
After the completion of the age of eighteen, a woman gets the capacity to adopt
even though. she herself is unmarried. Where after the adoption, she is married, her
husband would be step-father and she herself would remain adoptive mother as earlier.
Adoption by an unmarried can also take place despite the fact that she is having an
illegitimate child. - Ashoka Naidu v. Raymond AIR 1976 Cal 272.
A married woman has got no right to take in adoption during the subsistence of
the marriage. But where the husband has completely and finally renounced the world or
he had ceased to be Hindu or some competent court has declared him to be of unsound
mind, the wife can adopt.- Dashrath V. Pandu 1977 Mah LJ 358
 
9 Persons capable of giving in adoption
(1) No person except the father or mother the guardian of a child shall have the
capacity to give the child in adoption.
(2) Subject to the provision of 1[sub-section (3) and sub-section (4)], the father, if
alive, shall alone have the right to give in adoption, but such right shall not be
exercised save with the consent of the mother unless the mother has completely
and finally renounced the world or has ceased to be a Hindu has been declared by
a court of competent jurisdiction to be of unsound mind.

11
Substituted by Act 45 of 1962, w.e.f. 29-11-1962
 (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.
 
1
[(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; 2[***]
3
[(ia) "guardian" means a person having the care of the person of 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
(b) 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.
 
COMMENTS

11
Substituted by Act 45 of 1962, w.e.f. 29-11-1962
22
Word “and” omitted by Act 45 of 1962, w.e.f. 29-11-1962
33
Inserted by Act 45 of 1962
 Where the adoption takes place and step-son is given in adoption by step-mother
having no capacity to give in adoption such an adoption is not valid one by virtue of
s.5(1) read with s.6(ii)-Dhanraj v. Suraj Bai 1975 (Supp) SCR 73
It is the District Court where in the application for giving and taking in adoption
has to be moved and not in the Family Court. How and in what manner the permission is
to be made there is no such mention under the Act and the provisions that have to be
followed are there as laid down under Guardians and Wards Act.-Central Bank Relief &
Welfare Society, In re AIR 1991 Kar 6
 
10 Persons who may be 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 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.
 
COMMENTS
There is a bar imposed by this s. 10 and that being a married person cannot be
adopted. But the case is different where there is some custom among Jats of Punjab and
Haryana in having a legal sanction and judicially recognised where under the custom
permits the adoption of married person-Amar Singh V.Tej Ram 1982 (84 )Punj LR 2387
The person above the age of 15 years cannot be given in adoption and if there is
some custom permitting that the same must be strictly pleaded and proved-Mahalingam
v. Kannayyar AIR 1990 Mad. 333. 1989 (2) MLJ 3441
Existence of custom be it family or tribal custom having its applicability to the
parties concerned whereby the adoption of a person married or of the age of more than 15
 years is permitted, is all that is required to be established by the provision of section 10
so as to make adoption valid.-Maya Ram v. Jai Narian 1989 (1) HLR 352
 
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 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 person;
(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
1
child from the family of its birth [or in 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.
 
COMMENTS
Requirement of an age gap of 21 years between the adoptee and the adopted, if
violated is sufficient to render the adoption invalid.- Golak Chandra v . Kritibas AIR
1979 Ori. 205

11
Inserted by Act 45 of 1962
 
 
 Where the case is, one child is given to the family of other so that the child is
brought up, this giving of the child does not constitute adoption. There must be an
intention to give and to take the child in adoption.-Kewal Singh v. Bakshish Singh 1975
(77) Punj LR 321
Absence of parents at the time of adoption ceremony and not proving the giving
and taking the child in adoption, adoption was held invalid. v.Bakshish Singh -Kewal
Singh 1979 HLR 431
 
12 Effects of adoption
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 the adoption and from such date all
the ties of the child in the family of his or her birth shall be deemed to be severed and
replaced by those created by the adoption in the adoptive family :
PROVIDED that -
(a) the child cannot marry any person whom he or she could not have married if he or
she had continued in the family of his or her birth;
(b) 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;
(c) the adopted child shall not divest any person of any estate which vested in him or
her before the adoption.
COMMENTS
The assumption that all the ties of child with the family of his or her birth shall be
severed operates only from the day the adoption takes place and from the day the ties are
replaced by those created by the adoption in the adoptive family.-Kanwaljit Singh v.
State of Haryana 1981 Pun LJ 64.
Adopted girl is conferred an entitlement to succeed the property within the
meaning of s.8 of Hindu Succession Act despite the fact that the property was owned by
the deceased by reason of his adoption.- Neelawwa v. Shivawwa 1988 (2) HLR 799.
 Under the provisions of s.14 of the Hindu Succession Act, widow becomes an
absolute owner, and it is not possible that the child adopted by her is divesting her of the
right which has already been vested in her.- Dinaji v.Dadde AIR 1990 SC 1153.
Where the property is in absolute terms vested in a person as the last surviving
coparcener a child subsequently adopted cannot divest him of it .-Krishnabai v. Ananda
Sevaram AIR 1981 Bom 240
 
13 Right of adoptive parents to dispose of their properties
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.
COMMENTS
Where the child is taken in adoption by the sole surviving widow, oral
relinquishment by her in favour of adopted child is valid and effective.-Hirabai v. Babu
Manika AIR 1980 Bom. 315
 
 
14 Determination of adoptive mother in certain cases
(1) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the
adoptive mother.
(2) Where an adoption has been made with the consent of more than one wife, the
senior-most in marriage among them shall be deemed to be the adoptive mother
and the other to be step mothers
(3) Where a widower or a bachelor adopts a child, any wife whom he subsequently
marries shall be deemed to be step mother of the step mother of the adopted child.
(4) Where a widow or an unmarried woman adopts a child, any husband whom she
marries subsequently shall be deemed to be the step father of the adoptive child.
 
15 Valid adoption not to be cancelled
 No adoption which has been validly made can be cancelled by the adoptive father
or mother or any other person, nor can the adopted child renounce his or her status as
such and return to the family of his or her birth.
 
16. Presumption as to registered documents relating to adoption
Whenever any document registered under any law for the time being in force is
produced before any court purporting to record an adoption made and is signed by the
person giving and the person taking the child in adoption, the court shall presume that
the adoption has been made in compliance with the provisions of this Act unless and until
it is disproved.
 
COMMENTS
In case a challenge is thrown to the deed of adoption on the ground of its
execution being by fraud, coercion or undue influence, it is for the party challenging the
document that has to establish that the execution was so vitiated.-Sushil Chandra v.
Bhoop Kunwar AIR 1977 All 441.
Presumption as to registered documents relation to adoption is only a rebuttable
presumption.-Bhoolo Ram v. Ramlal 1989 (2) HLR 162
Where the validity of the adoption was asked for on the ground of not obtaining
the consent if the husband on account of his unsound mind but this fact found no place in
the plaint as required by order 6, rule 6, CPCand there was only the presentation of
registered document it was held that presumption as under s. 16 of Hindu Adoption and
Maintenance Act would prevail over the provision of order 6, rule 6 of C.P.C. It is for the
other party if it wants to, to rebut the presumption.-1979 MP LJ 591.
 
17 Prohibition of Certain Payments
(1) No person shall receive or agree to receive any payment or other reward in
consideration of the adoption of any person, and no person shall make or give or
agree to make or give to any other person any payment or reward the receipt of
which is prohibited by this section.
 (2) If any person contravenes the provision of sub-section (1), he shall be punishable
with imprisonment which may extend to six months, or with fine, or with both .
(3) No prosecution under this section shall be instituted without the previous sanction
of the State Government or an officer authorised by the State Government in this
behalf.
 
 
CHAPTER III
MAINTENANCE
 
18 Maintenance of wife
(1) Subject to the provisions of this section, a Hindu wife, whether married before or
after the commencement of this Act, shall be entitled to be maintained by her
husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without
forfeiting her claim to maintenance -
(a) If he is guilty of desertion, that is to say, of abandoning her without
reasonable cause and without her consent or against her wish, or of
willfully neglecting her;
(b) If he has treated her with such cruelty as to cause a reasonable
apprehension in her mind that it will be harmful or injurious to live with
her husband;
(c) If he is suffering from a virulent from of leprosy;
(d) If he has any other wife living ;
(e) If he keeps a concubine in the same house in which his wife is living or
habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion ;
(g) if there is any other cause justifying her living separately;
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her
husband if she is unchaste or ceases to be a Hindu by conversion to another
religion.
  
COMMENTS
The words "wife or widow" in the context of marriage, succession or
maintenance enactments are of restrictive legal character and imply relationship which is
not recognised by land-Rajesh Bai v. Santha Bai 1982 HLR 445.
A man marrying a second time, during the lifetime of his wife, second wife
though, having no knowledge of the first marriage, is not entitled to claim maintenance
under s, 125 of the Code of Criminal Procedure, as she was not legally wedded wife and
for that the marriage was void.-Jamuna Bai v.Anant Rao 1988 Cr LJ 793.
There is no forum provided under the Act so as to claim maintenance.
Maintenance can only be claimed through regular suit.-Krishan Lal v. Sudershan Kumari
1979 HLR 576.
 
19 Maintenance of Widowed daughter-in-law
(1) A Hindu wife, whether married before or after the commencement of this Act,
shall be entitled to be maintained after the death of her husband by her father-in-
law.
PROVIDED and to the extent that she is unable to maintain herself out of her own
earnings or other property or, where she has no property of her own, is unable to
obtain maintenance -
(a) from the estate of her husband or her father or mother, or
(b) (b)   from her son or daughter, if any, or his or her estate.
(2) Any obligation under sub-section (1) shall not be enforceable if the father- in- law
has not the means to do so from any coparcenary property in his possession out
of which the daughter-in-law has not obtained any share, and any such obligation
shall cease on the re-marriage of the daughter-in-law.
COMMENTS
Liability of the father-in-law comes to an end where the widow is remarried or
she has obtained a share in the coparcenery properties while partition. But her right to
share in the separate property of her husband or in his interest in coparcenery property
cannot be divested.-Animuthu v. Gandhimmal 1977 HLR 628.
  
20 Maintenance of children and aged parents
(1) Subject to the provisions of this section a Hindu is bound, during his or her
lifetime, to maintain his or her legitimate or illegitimate children and his or her
aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or
mother so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or infirm parent or a
daughter who is unmarried extends insofar as the parent or the unmarried
daughter, as the case may be, is unable to maintain himself or herself out of his or
her own earnings or other property.
Explanation: In his section "parent” includes a childless step-mother.
 
COMMENTS
There is no liability casted upon step-son as to maintain his step mother under
this section, though the step-son is liable to maintain her as a dependent- Pannalal v.
Fulmani AIR 1987 Cal 768
Unmarried daughter, aged or infirm parents can enforce their rights only in these
cases where they are unable to maintain themselves from their own earnings or from the
property owned by them where almost all the property is given in gift by the mother to
her only daughter and the rest of property is sold by her to her brother, she gets entitled to
be maintained by her daughter.-Munnidevi.v. Chhoti AIR 1983 All 444.
 
21 Dependants defined
For the purposes of this Chapter "dependants” means the following relatives of
the deceased:
(i) his or her father ;
(ii) his or her mother;
(iii) his widow, so long as she does not re- marry
(iv) his or her son or the son of his predeceased son or the son of predeceased son of
his predeceased son, so long as he is a minor:
 PROVIDED and to the extent that he is unable to obtain maintenance, in the case
of a grandson from his father's or mother's estate, and in the case of a great -
grand son, from the estate of his father or mother or father's father or father's
mother;
(v) his or her unmarried daughter, or the unmarried daughter of his predeceased son
or the unmarried daughter of a predeceased son of his predeceased son , so long as
she remains unmarried;
PROVIDED and to the extent that she is unable to obtain maintenance, in the case
of a grand - daughter from her father's or mother's estate and in the case of great-
grand- daughter from the estate of her father or mother or father's father or father's
mother;
(vi) his widowed daughter :
PROVIDED and to the extent that she is unable to obtain maintenance
(a) from the estate of her husband, or
(b) from her son or daughter if any, or his or her estate; or
(c) from her father-in-law or his father or the estate of either of them ;
(vii) any widow of his son or of a son of his predeceased son, so long as she does not
remarry:
PROVIDED and to the extent that she is unable to obtain maintenance from her
husband's estate, or from her son or daughter, if any, or his or her estate; or in the
case of a grandson's widow, also from her father-in-law's estate
(viii) his or her minor illegitimate son, so long as he remains a minor;
(ix) his or her illegitimate daughter, so long as she remains unmarried.
 
 
22 Maintenance of dependents
(1) Subject to the provisions of sub section (2) the heirs of a deceased Hindu are
bound of maintain the dependants of the deceased out of the estate inherited by
them from the deceased.
(2) Where a dependant has not obtained, by testamentary or intestate succession, any
share in the estate of a Hindu dying after the commencement of this Act, the
 dependant shall be entitled, subject to the provisions of this Act, to maintenance
from those who take the estate.
(3) The liability of each of the persons who takes the estate shall be in proportion to
the value of the share or part of the estate taken by him or her.
(4) Notwithstanding anything contained in sub section (2) or sub section (3), no
person who is himself or herself a dependant shall be liable to contribute to the
maintenance of others, if he or she has obtained a share or part the value of which
is, or would, if the liability to contribute were enforced, become less than what
would be awarded to him or her by way of maintenance under this Act.
 
COMMENTS
A person having concubine and he himself dying after the Act coming into force,
would confer a right to maintenance upon the concubine.-Laxminarasamma v.
Sundaraamma AIR 1981 AP 88.
Where no property is inherited by the brothers from their father, they cannot be
compelled to contribute for the marriage of their sister.-Challaiyan v. Salia Krishan AIR
1982 Mad 148.
Where there is no maintenance from the estate of the husband or from her son or
daughter such Hindu widow, is to be taken as dependant of the father-in-law under this
section as s,19 would not be having its application to such a case .-Bitala Kunwari v.
Girand Singh AIR 1983 All 425.
 
23 Amount of maintenance
(1) It shall be in the discretion of the court to determine whether any, and if so what,
maintenance shall be awarded under the provisions of this Act, and in doing so
the court shall have due regard to the considerations set out in sub- section (2), or
sub- section(3), as the case may be, so far as they are applicable.
(2) In determining the amount of maintenance, if any, to be awarded to a wife,
children or aged or infirm parents under this Act, regard shall be had to.-
(a) the position and status of the parties;
(b) the reasonable wants of the claimant ;
 (c) if the claimant is living separately, whether the claimant is justified in
doing so;
(d) the value of the claimant's property and any income derived from such
property , or from the claimant's own earnings or from any other sources;
(e) the number of persons entitled to maintenance under this Act
(3) In determining the amount of maintenance, if any, to be awarded to a dependent
under this Act, regard shall be had to.-
(a) the net value of the estate of the deceased after providing for the payment
of his debts;
(b) the provision, if any, made under a will of the deceased in respect of the
dependant;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependant;
(e) the past relations between the dependant and the deceased;
(f) the value of the property of the dependant and any income derived from
such property; or from his or her earnings or from any other source;
(g) the number of dependants entitled to maintenance under this Act.
 
COMMENTS
Quantum of maintenance depends upon a gathering together or all the facts of the
situation, the amount of free estate, the past life of the married parties and the families a
survey of the conditions and necessities and rights of the members, on a reasonable view
of the change of circumstances possibly required in the future, regard being of course to
the scale and mode of living to the age, habits, wants and class of life of the parties.-
Rashmi Mehra v.Sunil Mehra AIR 1991 Del.44
 
24 Claimant to maintenance should be a Hindu
No person shall be entitled to claim maintenance under this chapter if he or she
has ceased to be a Hindu by conversion to another religion.
 
25 Amount of Maintenance may be altered on change of circumstances:
 The amount of maintenance, whether fixed by a decree of court or by agreement,
either before or after the commencement of this Act, may be altered subsequently if there
is a material change in the circumstances justifying such alteration.
COMMENTS
When the power is conferred to alter the prior decree or agreement it definitely
includes a power to annul the same if the circumstances requires so.- Dattu Bhat v.
Tarabai AIR 1985 Bom.106
 
26 Debts to have priority
Subject to the provision contained in section 27 debts of every description
contracted or payable by the deceased shall have priority over the claims of his
dependants for maintenance under this act.
 
27 Maintenance when to be a charge
A dependant's claim for maintenance under this Act shall not be a charge on the
estate of the deceased or any portion thereof, unless one has been created by the will of
the deceased, by a decree of court, by agreement between the dependant and the owner
of the estate or portion, or otherwise,
 
28 Effect of transfer of property on right to maintenance
Where a dependant has a right to receive maintenance out of an estate, and such
estate or any part thereof its transferred, the right to receive maintenance may be enforced
against the transferee if the transferee has notice of the right or if the transfer is
gratuitous; but not against the transferee for consideration and without notice of the right.