Effects of Adoption According to Hindu Adoption
Submitted by
Aditya Krishna Srivastava
Division A Roll No. 18010224007 Class of 2018-2023
Symbiosis Law School, NOIDA
Symbiosis International (Deemed University), Pune
In
January, 2020
Under the guidance of
Ms. Deepali Rani Sahoo
Assistant Professor
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CERTIFICATE
The project titled “Effect of adoption according to Hindu Adoption” submitted to the Symbiosis
Law School, NOIDA for Law of Crimes Paper I: Indian Penal Code as part of Internal Assessment
is based on my original work carried out under the guidance of Mrs. Deepali Rani Sahoo from
December to January. The Research work has not been submitted elsewhere for award of any
degree. The material borrowed from other sources and incorporated in the research paper has been
duly acknowledged. I understand that I myself would be held responsible and accountable for
plagiarism, if any, detected later on.
Signature of the Candidate
Date
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INDEX
S.No Title Pg No.
1. INTRODUCTION AND EVOLUTION 2-3
2. MEANING 3-4
3. LITERATURE REVIEW 4-6
4. CONCLUSION 7
5. BIBLIOGRAPHY 8
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LIST OF CASES
• Jamoona vs. Bamasoondri (1876) 3 IA 72
• Rajindera Parsad Vs. Gopala Parsad
• Rungamma Vs. Atchamana, (1846) 4 M.I.A. p. 1
• Sharad Chand Vs. Shanta Bai, AIR 1944 Nag 66 (FB)
• V. A. Rao Vs. Parathasarthi Rao, 1914 41 IA 51,71
INTRODUCTION AND EVOLUTION
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Adoption is the action of legally taking another’s child and bringing it up as one’s own. It has gone a radical
change from the primitive to the modern age. Hindu Mythology has also recognised other ways of getting a
child, like offering prayers to a deity1
In Hinduism there have been multiple cases of adopted saints and royals. The Ramayana as well as the
Mahabharata have multiple references to adoption. In the lack of a male offspring, couples have adopted a male
child and assigned him for a legal beneficiary. As per Hindu convention, a male child is required for the
continuance of the family name, support to the parents in their old age and the performance of death rites by
offering Pinda. The Vedas have also mentioned that, “through a son, a man, conquered the world, through a
grandson, he attains the immortality and through a great grandson he gains the world of the sun. During the
Rigvedic Period, it has been observed that primarily the families liked to have their own son, but if they could
not then the Hindu’s looked to their daughter to continuance of their family.
D.C. Manooja traces the origin of adoption to the principle of slavery. He stated that with the sale of man in the
ancient times, the unlimited rights over the man were also transferred. Thus, due to distress and poverty,
children were sold to other individuals 2. Even though many reasons have been assumed for the beginning of the
institution of adoption, the basic principle of the same is the transfer of the dominion from the real parents/father
to the adoptive parents/father. In the ancient times, according to the Saunka, the boy who is to be adopted by the
parents must bear some physical resemblance to the adoptive parents, and therefore the idea of adopting from
within one’s own family was always preferred 3.
The next substantial evolution from the ancient times came during the British Rule in India. The Mitakshara and
Dayabhaga values prevailed in these times. If a man had a son, grandson, or great grandson, whether natural or
adopted, he was precluded from adoption. Even simultaneous adoption of two or more persons continued to be
invalid4. In the case Jamoona vs. Bamasoondri5 the Pricy Council opined that a minor under the Indian Majority
Act, 1875 can adopt or authorise his widow to adopt when he has attained the age of discretion. The rules of
construction of an authority to adopt have been laid down by the Privy Council in V. A. Rao Vs. Parathasarthi
Rao6, and in Rajindera Parsad Vs. Gopala Parsad, it was held that where an authority to adopt is given by a
husband the presumption is strong that he desired to be represented by an adopted son.
1
National Initiative for child Adoption -Compilation of Resource Material Collaborators, (National Institute of Social Defence and of
Central Adoption Resource Agencies, New Delhi, 2000)
2
D. C. Manooja, Adoption Law and Practice, (1st edn., 1993), p. 1.
3
Treatise on Hindu Law and Usage, (11th edn., 1953), p. 188
4
Rungamma Vs. Atchamana, (1846) 4 M.I.A. p. 1
5
(1876) 3 IA 72
6
(1914) 41 IA 51, 71
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Finally, in the Post-Independence Era, the Hindu Adoption and Maintenance Act, 1956, the Guardian and
Wards Act, 1890, The Hindu Minority and Guardianship Act, 1956 and the Hindu Succession Act, 1956.
These however are not the only laws regarding adoption and the rights relating to an adoption. All of these laws
are valid only on Hindus and thus other laws which are more secular in nature like the Juvenile Justice (Care
and Protection of Children) Act, 2011 and a Central Adoption Resource Authority.
MEANING
As discussed above, adoption under the Hindu Laws, historically and culturally has happened so that the Hindu
Family has a successor in the future and that he can preform the last rites of the parents. There are multiple laws
which illuminate us upon the effects of the rights of the child when he/she is adopted. If the adoption process is
not complied with the guidelines as provided in Section 5 of the Act, then it is not considered to be a valid
adoption. The Documents of adoption must be provided and registered before a court.
According to Section 12 of the Hindu Adoption and Maintenance Act, 1956 the following happens in the
process of adoption. The child completely severs all ties to his family except that,
(i) That the child can't 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,
(ii) That any property which is vested in the adopted child before the adoption shall continue to vest in
such person subject to the obligation, if any attaching to the ownership of such property including the
obligation to maintain relatives in the family of his or her birth,
(iii) That the adopted child shall not divest any person of any estate which vested in him or her before the
adoption,
A. EFFECT OF ADOPTION IN THE NATURAL FAMILY
i. The chid ceases to be the child of the natural family and all the relations made due to the
previous family are severed.
ii. The natural parents right of guardianship comes to an end. When the adoption of a married
person is permitted that person cannot give in adoption his child born prior to adoption. 7
iii. Any property vested in the adoption before the adoption shall be with the child subject to the
obligation that any prior obligations relating to the property are also to be fulfilled.
iv. The natural child would have no obligation towards the child including maintenance and vice
versa.
7
Sharad Chand Vs. Shanta Bai, AIR 1944 Nag 66 (FB)
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v. Section 12(a) states that an adopted child cannot marry any person whom he or she could not
have married had she remained in the natural family.
vi. Any debts which are owed by the father cannot come o n the child after the death of the father.
B. EFFECT OF ADOPTION IN THE ADOPTIVE FAMILY
i. The child’s parents are the ones who have adopted the child and the relation so made is of natural
relatives.
ii. The adoptive child is deemed to be the child of the parents on the date of adoption and therefore
the child cannot divest any person of any estate which vested in him or her before the adoption.
iii. The natural guardianship will pass to the adoptive parents.
iv. Section 20 of the Act says that a Hindu is bound to maintain his or her legitimate child which
obviously would include an adopted child. Similarly, if a person has inherited any property of
any person in his or her natural family either by will or on inheritance but is later on given in
adoption he or she would continue liable to maintain the dependents
v. The child can’t marry within the adoptive family.
vi. The child gets any property divided in the family after the date of adoption. Also, where a
coparcener adopts a son, he has no authority after adoption of that male child either by deed or
will, to interfere with the right of survivorship of the adoptive son in the coparcenary property.
LITERATURE REVIEW
1. Adoption in India - The Past, Present and Future Trends. (2019). International Journal of
Research and Analytical Reviews, 6(2).
The author in this paper gave a comprehensive analysis and road map for the adoption trends in India. As per the
author the practice od adoption has been followed in our country for thousands of years. Traditionally the practice
of adoption had been linked with the need and demand to fulfil the final rites of a person for the attainment of
moksha, and such could only be fulfilled via a son. Therefore, in order to fulfil their religious obligations and the
desire of moksha people without sons opted for adoption.
The recognition of adoption however, under English Law began later in the 19 th century in order to prevent any
conflicts between the biological parents and the adoptive parents. This was further substantiated after the first
world war wherein a huge amount of children had been left orphaned.
In India there was no uniformity with regards to the adoption laws, however with the advent of Hindu Adoption
and Maintenance Act 1956, the regulation of adoption practices was possible and hence exploitation could be
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prevented. It moved beyond the lines of gender and allowed adoption of a female child as well as a male child.
However, this act was only available to people belonging to the Hindu community and hence people from other
communities or religions such as Christianity, Islam and Parsis were provided recourse through the Guardianship
and Wards Act 1890. Another very important statute that was introduced in India was the Juvenile Justice Act
2000 which provided better opportunities or remedies to those children which had been abandoned, orphaned,
neglected or abused by their respective families. Adoption is considered to be a noble cause in every society as it
fulfils two purposes i.e. it provides children to those parents who are incapable of procreating and on the other
hand it provides a better home and parents to those children who had been orphaned or abandoned by their own
families and hence also prevents their exploitation at the hand of various groups. Since the basis of all these acts
is the betterment and welfare of the children falling under the purview of this act, the government also lays down
various conditions that must be fulfilled as basic requirements for a person to prove that they are capable of
adopting and to make sure that the child will be welcomed with bona fide intentions and given the necessary care
and affection that it deserves.
2. Institution of Adoption - A Historical and Legal Perspective. (n.d.). Retrieved from
https://shodhganga.inflibnet.ac.in/bitstream/10603/128127/15/08_chapter 2.pdf
The author in this paper dwells deeply into the evolution of the legal framework for adoption in India. The various
beliefs around adoption in Hinduism were discussed. The paper discussed why, how and where was adoption
started in Indian context. Even though there has been some kind of stigma in the Indian society regarding adoption,
the author pointed out that adoption has been a practice which has been prevalent in the Indian society since time
immemorial. Starting from Indian mythology, ancient Hindu law, the medieval period, British Period and the
post-Independence period. The various laws in these periods were discussed and explained with great detail.
The paper discussed about the Mitakshara and the Dayabhaga rules in the society and how they have played an
important role in developing the current Hindu laws for adoption. Provisions like the age of a minor in the Hindu
law is any person below the age of 18 and the fact that no minor can be adopted legally have directly been taken
from the Mitakshara laws surrounding adoption.
The paper further discussed about the role the British played in codifying the laws relating to adoption laws with
the Indian Majority Act, 1875, Guardianship and Wards Act, 1860 and provided us with precedents relating to the
adoption laws which are referred till date.
Finally the paper discussed about the evolution of the Hidnu Laws post independence. The paper discussed about
the Hindu Code Bill which was the direct result of the intention of codifying Hindu Laws in the country. The
initial proposal excluded daughter from being taken in adoption to prevent human trafficking. The paper informed
us about the split of the Hindu Code Bill into the three laws which are currently used in India, i.e. The Hindu
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Adoption and Maintenance Act, 1956 which governs the law relating to adoption, the Hindu Minority and
Guardianship Act, 1956 which reforms and codifies the Hindu Law regarding the guardianship of minors and
the Hindu Succession Act, 1956.
The paper further discussed about the adoption laws in the other legal systems like the Roman system and the
evolution of the law in the Common Law Systems.
3. Statutory Protection of Adoption in India - Critical Review. (n.d.). doi:
https://shodhganga.inflibnet.ac.in/bitstream/10603/128127/19/10_chapter 4.pdf
The author in this paper focused on the various laws which give adoption legal backing and gives rights to the
adopted and adoptive parents. The author talked about how the old shastric laws were codified into codified law
which has lead to a huge reform in the country and it’s view on adoption of children. The paper talks about the
rights with reference to the various aspects like who can adopt, who can be adopted, what are the rights of the
parents who have given their child after adoption, etc. The paper also elucidates on the effect of adoption and the
various different scenarios where the rights may differ. For example, the effect of adoption in the natural family
and the effect on the members of the adoptive family. The headers which are analysed under them by the author
revolve around the rights of guardianship, property, marriage, etc.
The literature further talked about the multiple procedures for adoptions and proof which has to be given by the
family to ensure proper legal adoption and not following the procedure would amount to a jail term of upto six
months.
However, the Hindu Adoption and Maintenance acts with the virtue of Section 10(iii) and 10(iv) form in exception
in the process of adoption among the Hindus to follow there personal customs and usages and explains the various
types of adoption which have made themselves valid under the purview of law.
Paper then follows on to explain the effects of adoption under the Juvenile Justice (Care and Protection of
Children) Act, 2000. The author regarded Juvenile Justice (Care and Protection of Children) Act as a progressive
step towards the permanent rehabilitation of children needing a family. This being a secular law does not make
any differentiations in the process of adoption on the basis of the religion of the child and parents. It explains to
us about Section 41 of the act which affixes the primary responsibility for the rehabilitation, care and protection
of abandoned, destitute orphaned, neglected and abused children.
It also discusses about the effects of adoption under the Guardian and Wards Act, which governs the adoption
laws for Parsis, Muslims and Jews. The author opines that, the act however, fails in giving the child a status
equivalent to that which is given in the Hindu Adoption and Maintenance Act as it merely confirms a guardian
and ward relationship.
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CONCLUSION
Law in India has been made while keeping into consideration the religious structure and division in India. The
challenge to a uniform civil code in India is majorly a diverse country wherein the society and religion are
intermingled and not easy to single out. Thus, even though the Guardianship and Wards Act and the Juvenile
Justice (Care and Protection of Children) Act are present as secular laws for adoption, the two major religions in
India, i.e. Hinduism and Islam follow their own methods and procedures for the adoption process. The Hindu
law has been codified into The Hindu Adoption and Maintenance Act with other subsidiary acts whereas the
Muslims follow their own personal law.
In India as specified before there are multiple laws which govern the laws relating to adoption and the effect of
the same. The act which most successfully and actively gives the most number of rights to the children in the
process of adoption is the Hindu Adoption and Maintenance Act, as the relation which is formed between the
adopted child and the adoptive parents become that of a natural child. The child gets all the rights which the heir
in the family would have gotten, including the rights in the Hindu Undivided Family. This is because the act of
adoption has been ingrained in our society from way before any one from outside India came into the country.
The Hindu social structure has always required a child for the final rites of the parents and thus from that social
idea the act of adoption immortalised itself in Hindu law which has now been codified. By using the Juvenile
Justice (Care and Protection of Children) Act, 2000, the parliamentarians tried to extend the natural rights of the
children to the non-Hindus and even made provisions for the protection of the adopted children and children in
general, which is grossly missing from the Hindu law, it has not been totally successful because of logistical
problems faced in the various states, majorly that of lack of infrastructure at the State level as well as inadequate
orientation of the Juvenile Justice Functionaries.
Due to the lack of any legislation which enables the other communities to give children for adoption and there
sole reliance being on the JJC Act and the Guardianship an Wards act, it is safe to say that the law actually
needs to step up and provide for adequate relief to them, as it directly effects the rights of the children adopted
and the parents adopting.
The attempt to unify the adoption laws failed in 1972 when the Adoption of Children Bill was introduced in the
parliament. The fundamentalist Muslims considered it as against the Islamic tradition. The reasons not to have a
unified law in this matter greatly outweigh the reasons which are pro unified laws and therefore to protect the
rights of the children, it is greatly important to make a unified law.
BLIOGRAPHY
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• Adoption in India - The Past, Present and Future Trends. (2019). International Journal of Research and
Analytical Reviews, 6(2).
• Chadha, P. N. (1974). Hindu law. Lucknow: Eastern Book Company.
• Derrett, J. D. M. (1966). Adoption, succession, and the present state of Hindu law. Bombay: Ratanlal
Ranchhoddas.
• Institution of Adoption - A Historical Perspective. (n.d.). Retrieved from
https://shodhganga.inflibnet.ac.in/bitstream/10603/128127/15/08_chapter 2.pdf
• Khan, S. (2019, October 8). Effect Of Valid Adoption Under Hindu Law. Retrieved from
https://lawcorner.in/effect-of-valid-adoption-under-hindu-law/
• Statutory Protection of Adoption in India - Critical Review. (n.d.). doi:
https://shodhganga.inflibnet.ac.in/bitstream/10603/128127/19/10_chapter 4.pdf
• The Hindu Adoption and Maintenance Act 1956: Effect of Adoption. (2019, September 19). Retrieved
from https://www.toppr.com/guides/legal-aptitude/family-law-II/the-hindu-adoption-and-maintenance-
act-1956/
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