Adoption in Hindu Law

Children are thought to be a source of joy, and the country's future is dependent on them.
Meanwhile, children born in India are pampered, cared for, and provided with all of the
necessities for their overall growth, while over 60,000 children are abandoned in India each year.
It is a tragic state of affairs when some of these children become victims of human trafficking and
sexual abuse, while others are brought to an adoption agency and given hope for a better life
while waiting to be adopted. A parent's greatest joy comes from having a child. Adoption seems
to be the most efficient means of obtaining this happiness.

Adoption is a wonderful option for single parents, childless adults, and homeless children alike. It
allows individuals who are not physically related to form a parent-child bond. The Hindu Adoption
and Maintenance Act 1956 is the only personal law in India that deals with adoption. Some
personal laws, such as Muslim, Parsi, and Christian, do not allow for adoption. This research
paper examines other legal guidelines relating to adoption, as well as the gaps and flaws in
those provisions. It also discusses the role of the judiciary in defining the adoption scenario in
India.

Introduction
Adoption is a legal procedure in which a child is placed with a married couple or a single woman
who agrees to raise and care for the child. Adoption is a legal way for people who are not related
by blood to establish a parent-child relationship. This two-way method has aided in the
conception of a child for childless couples. Adoption is the formal process of putting an infant with
a parent or parents other than the biological parents for the rest of their lives.

The parental duties and rights of the parents are severed when a child is adopted, and those
responsibilities and rights are transferred to the adoptive parents. It is a globally recognised
institution. Adoption is stated in almost all religions and mythologies in some way. In today's
world, the idea of adoption has evolved from providing a child to the orphaned to providing a
home to the homeless.

Adoption In Hindu Law

Only members of the Hindu community had access to adoption as a legal term. Also, where
personal laws permit such adoption for any part of the polity, there is an exception. A large
portion of the population could only serve as children's legal guardians. There have been many
progressive improvements as a result of the new concept's adoption. , such as female Hindu
adoption, adoption eligibility for girls, and so on. Because of our country's multicultural,
multilingual, and multi-religious sentiments, recognising all complexities and uniformly
implementing an effective adoption policy has been a difficult job.

With the rise of humanity, adoption will be used to ensure the right to family for orphaned,
neglected, and surrendered children; the process of adoption will have an effect on secular as
well as religious conditions. The main goal of adoption was to ensure that one's burial rights were
carried out and that one's lineage was preserved. Adoption has recently become the safest way
for a child who has been separated from his or her maternal family to re-establish a family.
Various international human rights treaties specifically state the constructive obligation to provide
care and assistance to children.

Adoption rates in India have always been low, but they have decreased in recent years:
According to the government's Central Adoption Resource Authority (CARA) adoption statistics,
there were 5,693 in-country adoptions in 2010, but just 3,276 in-country adoptions in 2017-2018.
These are appalling statistics for a country with such a large population. According to the Indian
Society of Assisted Reproduction, there are actually just around 20000 parents waiting to adopt,
compared to the 27.5 million couples actively seeking to conceive but suffering infertility.
Adoption Under Old Hindu Law
According to Old Law, a man could adopt a boy without the consent of his wife. But, a woman
could not adopt during life time of her husband or after his death except under authority given to
her by the husband or with the consent of his sapindas. The adopted son should be of the same
caste. An illegitimate boy or congenitally deaf and dumb boy could not be adopted. Only parents
could give a boy in adoption. A daughter could not be adopted. There was no age restriction
between the adopter and adoptee.

Adoption Under Modern Hindu Law

The Hindu Adoptions and Maintenance Act, made adoption a secular institution. The Act lays
down various provisions relating to Adoption (and Maintenance). The Act removed the
restrictions under Old Law. Under the Act, girl also can be taken in adoption.

Requisites Of A Valid Adoption

1. The person adoption (taking in adoption) must have capacity to do so and shall also have
a right to take in adoption
2. The person giving in adoption must have the capacity (and right) to do so.
3. The person adopted is capable of being taken in adoption
4. The adoption is made in compliance with the conditions in Chapter-II of the Act (The
Hindu Adoptions and Maintenance Act,1956)

 Under Section 7 and 8 of the Hindu adoption and maintenance act deal with capacity of
male and female Hindu respectively to take In adoption
 Under Section 9, the father, the mother or guardian can give a child in adoption; subject
to certain restrictions
 Section 10 provides for the capacity of a child or person to be adopted

Effects/Consequences Of Adoption (Section 12)

After adoption, the adopted child becomes the aurasa son of his adoptive parents and gets
disqualified to perform Sradha, Pinda Karma of his natural parents. Section 12 of the Hindu
adoptions and maintenance act, 1956 deals with the effects/consequences of the adoption

1. An Adopted child is deemed to be the natural born child of his/her adoptive

father/adoptive mother.
2. All the ties of the adopted child with the original family stand extinguished from the date
of adoption (i.e. Kinship disappears in the original family and is born in the adaptive
family). This rule is subject to the following exceptions:

a. The Child cannot marry any person, whom he/she could not have married prior to
the adoption.
b. The property vested in the child prior to the adoption shall continue to vest,
subject to the obligations.
c. The adopted child shall not divest any person in the adoptive family of any estate,
which is vested in him/her before the adoption. (i.e. the adoption of child does not
affect the rights and the members of the adoptive family).
Under Section 13 of the Hindu Adoptions and Maintenance Act, 1956 makes provisions for the
Ante-Adoption Agreement.

Ante-Adoption agreement means �An agreement before the adoption. It is entered into
between the natural parent (person giving the child in adoption)� and the adoptive parent
(person taking the child in adoption) before the adoption in regard to the rights of the adoptive
child in the property of the adoptive parent. It protects the interests of the child (to be given in
adoption) in regard to the property of the adoptive parent.

Registration of Adoption:
Section 16 of the act, provides for the registration of adoption with Registrar of documents. If the
adoption is registered the registered instrument duly signed by both the parties serves as a piece
of evidence, but not conclusive proof of the evidence.

The Doctrine Of Factum Valet

The maxim �Quod fieri non debris factum valet or the Doctrine of Factum Valet�, is a
Latin maxim, which means �what ought not be done is valid, when done�

After adoption, the child becomes the aurasa (naturally born son of the adoptive parents) and
also gets disqualified to perform �Sradha Karma, Pinda Karma or Kanyadan of natural parents.
In case, there is no other person competent to perform the ceremonies, shastras permit the
adopted son to perform the Sradha karma, Pinda Karma and Kanyadan.

This is known as �Factum Valet�. This doctrine was recognized both by the Mitakshara and
Dayabhaga Schools. When there is a rule, which governs an act (not to be done) and the act is
done, it cannot be rendered in invalid. This doctrine does not have universal application since
every prohibited act, when done cannot be ratified. The doctrine applies where there is no fraud
or force. Under the Hindu Law, this doctrine gets recognition mainly in the Law of Marriage and
Law of Adoption.

Effects Of Adoption Before The Act,1956:

Before the Act, the doctrine of relation back was in operation.

The Doctrine Of Relation Back

Adoption confers rights on the child w.e.f. the date of adoption. This position was the same in the
old law also. But under old law, when the adoption was made by a window, the adoption would
come into force from the date of the of the death of her (widow�s) husband.

This doctrine gives retrospective effect to adoption by a window under the old law. In other
words, all the rights pf the adoptee (person taking the son in adoption) related back from the date
of death of the adoptive father (window�s husband). The reason was the woman could not
adopt in her own without the consent/authority of her husband or his sapindas. Therefore, the
adoption is deemed to have taken place on the date of her husband.

The Doctrine of relation back has been abolished by Section 12 of the Hindu Adoptions and
Maintenance Act,1956 and hence it is no more a law at present
Sawan Ram vs Kalawati AIR 1967 SC 1761

The Supreme Court held that the son adopted by the widow was deemed to be the son of her
deceased husband and the adoption would be effective from the date of the death of her
husband (i.e. in 1948). Therefore, the adopted son was entitled to inherit the property of the
deceased husband.

Lacunae In Adoption Laws

Time Consuming Process
The process of adoption is very time taking and it needs to be addressed .In the researchers
humble opinion, to streamline the process, we need to ensure that there is awareness about
adoption procedures and there are sufficient adoption centers .The adoption process can take an
extremely long time, which can cause severe strain and stress to some families. Average waiting
times can vary from a few months to years in both national and international adoptions. Much
comes into adoption, and the state, as well as adoption agencies and experts, often set very
strict criteria in distinct countries. Though long wait times may be necessary for some adoptions,
many families wish to find ways to reduce these long waits in any way that they can

Very Strict Rules And Regulations

Domestic adoptions conform to strict rules and very strict scrutiny is given to the eligibility of
adoptive families. This makes the adoption process very troublesome and most the time the
family fails to adopt a child through such rules which leads to a discouragement among the
prospective adopters and adoptees

Limited Availability
According to the Child Adoption Resource Information and Guidance System (CARINGS), for
every 10 adoptive parents in India, only one child is available. There are not enough kids
accessible for adoption because the institutionalized care ratio of abandoned children to kids is
lopsided. This may result in fewer kids being accessible for adoption, and adoptive parents may
not be inclined to adopt a minority group (any) child.

Gender Bias In Adoption

Although it was stated after the enactment of the Act that gender discrimination was eliminated, it
still occurs in the real sense. Unless her husband dies or suffers from any disability or renounces
the world or so, a married woman cannot adopt, not even with the approval of the husband. On
the other side, with the wife�s approval, a husband may adopt.

In this era of equality, it is time for the law to recognize the same and offer men and females
equal privileges with respect to adoption. There is no reason to veto the husband to deny his
wife�s maternal instincts satisfaction.

Judicial Perspective On Adoption

Darshana Gupta Vs. None and Ors. AIR 2015 Raj 105
Held, When the child to be adopted is orphaned, abandoned or surrendered child or a child in
need of care and protection as defined in Juvenile Justice Act, the bar imposed by Section 11 (i)
and (ii) of Hindu Adoption and Maintenance Act does not bar the Hindu having biological child
from adopting the child of same gender. In changed social scenario, Acts were liable to be
construed harmoniously to ensure rehabilitation and social reintegration of orphaned, abandoned
and surrendered children - Therefore, adoption of child girl to Appellant was held maintainable

Karam Singh & Ors Vs Jagsir Singh & Ors., 2015 (3) RCR (Civil) 45 (P&H)

Adoption � Hindu Adoptions and Maintenance Act, 1956, Section 16 �Presumption of validity
� An adoption deed comes into effect the moment it is signed or thumb marked by the natural
parent and the adopting parent � The only consequence of non-registration or a defective
registration is that the presumption of truth, raised under Section 16 of the Act shall not arise �
Adoption deed shall have to be proved like any other ordinary fact or document.

Conclusion
Adoption is a noble cause that brings joy to orphaned or neglected children. This gives us a
chance to show off the human side of humanity. It's a beneficial programme in which the infant is
handled as though he or she were a normal born child, with all of the affection, care, and
attention that comes with it. At the same time, it satisfies the desire of parents for children. Their
mischief and laughter reverberating off the walls of a building. Although a few tweaks may be
made to make all adoption laws a bit more consistent.
The present legislation cannot be considered ineffective because it produced results. However, it
is past time to address the gaps that have arisen as a result of changing times and increasing
instances of discrepancy by enacting a uniform law to ensure that everybody has equal status
and privileges. Since the personal laws of all religions have become stagnant and cannot change
at the same pace as society, there has been a need for a uniform civil code.

The nation's children are its most valuable resource. Their upbringing and isolation are the
nation's responsibilities. Children's services should be a big part of domestic human resource
development strategies to help kids grow up to be good people who are physically fit and
mentally strong. With the talents and inspiration that society needs, he is mentally alert and
morally balanced. The goal is to provide all children with equitable opportunities for development,
as this will help to achieve larger goals such as reducing inequality and increasing social
justice. Title
The title describes this case study in a summary, so it deals with an analytical research on
Adoption and how the law with regard to Adoption developed in India and what is the Adoption in
Indian law.

Research Objectives

1. To understand the Adoption under old and modern Hindu law

2. To understand the effects of adoption.
3. What is the importance of the doctrine of factum valet and the doctrine of relation back
under Hindu Law
4. To Understand Lacunae in adoption laws

Research Question

1. What is Adoption
2. What are the requisites of valid adoption?
3. What are the effects of adoption?
 

Hypothesis
Through this study we will understand the concept of Adoption under modern Hindu Law, its
effects and some valid requisites

Research Methodology
The present study will be based on secondary data. This doctrinal study revolves around
Adoption in Modern Hindu Law. The collection of Data and information will be from published
papers, relevant articles, relevant cases, internet websites etc. Also include various texts from
legal and non-legal sections; the period of proposed study will be limited to understand the
concept of Adoption in Family Law in India.