ADOPTION UNDER HINDU LAW

Under the Hindu law institution of Adoption is considered as important as the institution of
Marriage. To have a son was considered must for every Hindu begotting a son was on of the
three debts of ancestor that a Hindu was required to discharge in this world. Just as a marriage
was never considered purely secular act so was Sonship. Son is called ‘Putra’ because he save
from hell. From pre Vedic Age the Hindu wanted natural legitimate son1.

The Shastric Hindu Law looked at adoption more as a sacramental than secular act. Some judges
think that the object of adoption is two fold: 1) to secure one's performance of one's funeral rites
and 2) to preserve the continuance of one's lineage 2. Hindus believed that one who died without
having a son would go to hell called poota and it was only a son who could save the father from
going to Poota. This was one of the reasons to beget a son and recognized Dataka as a type of
son.

In the Hindu Shastras, it was said that the adopted son should be a reflection of the natural son.
This guaranteed protection and care for the adopted son. He was not merely adoptive parents, but
all relations on the paternal and maternal side in the adoptive family also came into existence.
This means he cannot marry the daughter of his adoptive parents, whether the daughter was
natural-born or adopted. In the modern adoption laws, the main purpose is considered to be to
provide consolation and relief to a childless person, and on the other hand, rescue the helpless,
the unwanted, the destitute or the orphan child by providing it with parents. However, in the
Chandrashekhara case 3it was held that the validity of an adoption has to be judged by spiritual
rather than temporal considerations and devolution of property is only of secondary importance.

1
Paras Diwan, Family Law, (Allahabad Law Agency, Faridabad, Seventh Edition 2005), p. 307.
2
Inder Singh v. Kartar Singh (AIR 1966 Punj. 258).
3
Chandrashekhara Mudaliar v. Kulandaiveluo Mudaliar (AIR 1963 SC 185), as cited in B.M. Gandhi, Hindu Law,
(Eastern Law Book Company, Lucknow, Second Edition 2003), p. 339.
THE ADOPTION UNDER THE HINDU ADOPTION AND MAINTENANCE ACT 1956

Hindu Adoption and Maintenance Act, 1956 extends to only the Hindus, which are defined under
Section-2 of the Act and include any person, who is a Hindu by religion, including a Virashaiva,
a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,or a Buddhist, Jaina or Sikh by
religion, to any other person who is not a Muslim, Christian, Parsi or Jew by religion. It also
includes any legitimate or illegitimate child who has been abandoned both by his father and
mother or whose parentage is not known and who in either case is brought up as a Hindu,
Buddhist Sikhs and jainas.

Adoption is recognized by the Hindus and is not recognized by Muslims, Christian and Parsis.
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 by religion.

ESSENTIALS OF VALID ADOPTION

Section 6 of the Act enumerates the requisites of a Valid Adoption:

1. The person adopting has the capacity and also the right to take in adoption.

2. The person giving in adoption has the capacity to do so,

3. the person adopted is capable of being taken in adoption and

4. the adoption made in compliance with the other conditions mentioned in this Chapter.
Therefore, no adoption is considered valid unless it fulfils the abovementioned conditions under
Section 6 of the Hindu Adoption and Maintenance Act, 1956. According Section 5 of the Act, an
adoption made in contravention of the provisions of Chapter II of the Hindu Adoptions and
Maintenance Act, 1956 is void.
Capacity of a male Hindu to take in adoption According to Section 7 of Hindu Adoption and
Maintenance Act, 1956, any male Hindu who is of sound mind and is not a minor has the
capacity to take a son or a daughter in adoption. But if the male Hindu has a wife living at the
time of adoption, he shall not adopt except on the consent of his wife.
In the case of Sarabjeet kabir v. Gurumal Kaur4, the Court upheld that if adoption taken by the
husband without the consent of the wife, that adoption will be illegal.But the consent of the wife
of a male Hindu is not necessary in the following three conditions:-(1)The wife has completely
and finally renounced the world, or(2)The wife has ceased to be Hindu, or (3)The wife has been
declared by a Court of competent jurisdiction to be unsound mind.
In Krishna Chandra Sahu v. Pradeep Das5, the Court held that where the above three
disabilities of wife have not been established the consent of such wife would be mandatory for a
valid adoption. If the consent of wife is not established, the Court will declare the Adoption null
and void.
If a man has more than one wife living at the time of adoption, the consent of all the wives must
be obtained. The Act has given two qualification for a male Hindu to be capable to take a child in
adoption i.e. the person must be of sound mind and he must not be a minor. The man is required
to take consent of the wives or wife, before adoption. Without the consent of wife or wives the
adoption will be void.

Capacity of a female Hindu to take in adoption A female has also the capacity to adopt any
child. Section 8 of the Act provides that any female Hindu who is of sound mind, who is not
minor and who is not married or if married, whose marriage has been dissolved or whose
husband is dead or her husband has renounced the world finally and conclusively or her husband
has become a convert or her husband has been declared to be of unsound mind by a court of
competent jurisdiction has the capacity to take a son or daughter in adoption.
A woman who is of sound mind and is not a minor can take child in adoption. The woman has no
right to adopt, during the subsistence of the marriage, if the husband not suffering with any of the
disabilities mentioned in Section 8 of the Act. The unmarried and widow woman has also the
right to take in adoption any child.

4
AIR 2009 NOC 889 (P & H)
5
AIR 1982 Orissa 114
In the case of Narinderjit Kaur v. Union of India and another 6, it was held that the adoption of a
child under the authority of parents is valid. Where a child was given in adoption willingly by
natural parents and was taken in adoption by the adoptive mother through her attorney, it was
held to be a valid adoption. It was also held that subsequent marriage of adoptive mother does
not invalidate the adoption.

However the 2010 amendment of the Section 8 of the Hindu Adoption and Maintenance Act,
1956 has brought a radical change in the Hindu Law.The newly enacted Section 8 reads as
under,“Any female Hindu who is of sound mind and is not a minor has the capacity can take a
son or daughter in adoption. Provided that, if she has a husband living, she shall not adopt a son
or daughter except with, the consent of her husband unless the husband 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.”

Person capable of giving in adoption Section 9 of the Act lays down the capacity of person,
who may give the child in adoption to another. No persons except the father or mother or the
guardian of the child shall have the capacity to give in adoption.
 Capacity of the father to give in adoption: – If the father is alive, he shall alone have the
right to give in adoption but such right shall not be exercise save with the consent of the
mother.

 Capacity of the mother to give in adoption: – The mother may give the child in adoption
if the father is dead or had completely and finally renounced the world or has ceased to
be a Hindu or has been declared by a court jurisdiction to be unsound mind.

 Capacity of the guardian to give in adoption: – Where both the father and mother are
dead or to be unsound mind or had finally renounced the world, is declare by the court
then the guardian of a child may give the child in adoption with the following conditions
laid down by the courts:-
1. That the adoption will be for welfare of the child.

2. That the applicant for permission has not received any payment in consideration
of the adoption.
6
AIR 1997 P&H 280
 3. That no person has given any payment to the applicant for consideration of the
adoption of child.

The father has preferential right to give the child in adoption. If he is unsound mind or suffering
from chronic disease has the right to give a child in adoption. The guardian may give the child in
adoption with the prior permission of the court.

Who can be adopted:-Section 10 of the Hindu Adoption and Maintenance Act, 1956 the
following person who fulfill the conditions are capable for adoption:-
1. He or she should be Hindu. It is necessary that the child adopted must be Hindu.
Therefore the adoption of Muslim child by the Hindu is not recognized as adoption under
the Act.

2. He or She not already be adopted any child adopted. Two persons cannot adopt same
child.

3. He or She has not been married unless there is a custom applicable which permits being
can adopt. Before 1956, the adoption of married child among all the classes is invalid
except in Bombay among the Jats. In Bombay, the adoption of married person or married
person with child was valid. Section 10(iii) prohibits adoption of married person but
recognized custom to the contrary.7

4. He or She has not completed the age of fifteen years which is to be considered being
taken for adoption unless there is a usage or custom applicable to the parties which
permits persons who have completed the age of fifteen being taken in adoption.

Adoption of an orphan- Under the present law an orphan could also be taken in adoption 8. In such
cases the guardian of the orphan can obtain the permission of the court to this event and
thereafter could give the child in adoption. It was held that where customs or traditions allow
there a person above 15 years of age or married can be adopted 9.Another case of Dev Gonda v.

7
Maya v. Jay 1989 P&H 202.
8
See Paras Diwan Adoption of an Orphan under Hindu Law 1963 XV the law review, 153-165.
9
The case of Balakrishna v. Sadashive-1977, another case of Mayaram v. Jai Naraian -1989 and Kodippa Rama
Papal urf Shirke v. Kannappam -1990.  
Sham gonad -1992, the Bombay High Court held that any insane can also be adopted. Further
any orphan found child or abandon child may be adopted.

Other conditions for a valid adoption

According to Section 11, in every adoption, the following conditions must be complied with:
1. 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 (whether by legitimate blood
relationship or by adoption) living at the time of adoption;

2. 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;

3. if the adoption is by a male and the person to be adopted is a female, the adoptive father
is at least 21 years older than the person to be adopted;

4. 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;

5. the same child may not be adopted simultaneously by two or more persons (does not refer
to if both persons are adoptive mother and father) ;

6. 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 child from the
family of its birth  or in the 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.

EFFECTS OF VALID ADOPTION –

Section 12 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. In Rangappa v. Channappa10 it was observed that after adoption adopted child is
not entitled to any property of his natural parents.

Right of adoptive parents to dispose of their properties – Section 13

Section 13 lays down that where there is no agreement to the contrary, an adoption does not
deprive the adoptive father or mother of the power to dispose of his or her property by transfer
inter vivos or by will. Thus an adoptive parent is in no way restrained in the disposal of their
property by reason of adoption.

Adoptive parent’s right to disposing off his property is subject to an agreement to the contrary
that might have been entered into at the time of adoption between the adoptive parents and the
natural parents on behalf of the child for his benefit. Under the Act, thus, agreements restricting
the power of alienation of the adoptive parents is void.

Relationship of adopted child – Section 14

Section 14 lays down as to how an adopted child will be related to certain relations of adopter.
The Section provides for the determination of adoptive mother in certain cases. The Section lays
down that –
10
2008 kar. 47 (DB).
(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 others 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 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 adopted child.

Valid adoption not to be cancelled – Section 15 lays down that no adoption which has been validly
made can be cancelled by father or mother. An adopted child also cannot renounce his/her status
as the adopted child and return to the family of his/her birth. Prohibition of certain payments –
Section 17 prohibits certain payments. Section 17 (1) states that no person shall receive and no
person shall make or give to any other person any payment or reward the receipt of which is
prohibited by this section. Section 17 (2) provides that if any person contravenes the provisions
of Section 17 (1), he shall be punishable with imprisonment which may extend to six months, or
with fine, or with both. Finally, Section 17 (3) states that no prosecution under this section shall
be instituted without the previous sanction of the State Government or an officer authorized by
the State Government in this behalf.

Effects of invalid adoption

The adopted son does not acquire any right in the adopted family. He does not forfeit his right in
the natural family. Formalities of Adoption:-(i) The child to be adopted must be actually given
and taken in adoption by the parents/guardian.(ii) Only after the transfer of a boy from one
family to another with a ceremony will be valid. In the case of Lakshman Singh Kothari v/s Smt.
Rup Kuwar, 1961 the court held that under the Hindu Law there cannot be a valid adoption
unless the adoptive boy is transferred from one family to another by doing the ceremony of given
and taken.
 MAINTENANCE

The law of Maintenance under Hindu law has a special significance. All members of joint family
whatever their status is and whatever their age are entitled to maintenance. Hindu law also
recognizes that a Hindu has a personal obligation to maintain certain relations such as wife,
infant children and aged parents. The Hindu law of maintenance may be studied under the
following three heads:

1) Personal obligation to maintain certain relations,

2) Obligation of a person to maintain the dependents of another whose property devolved on
him, and
3) Obligation of a joint family to maintain its member.

Maintenance as a Personal obligation

Hindu sages, in most unequivocal and clear terms laid down that maintenance of certain persons
is a personal obligation. Manu declared: “the aged parents, a virtous wife, an infant child mustr
be maintained even by doing hundred misdeeds”11. It is considered to be greatest duty.
According to Mitakshara : “where there may be no property but what has been self-acquired, the
only who has maintenance out of such property is imperative, are aged parents, wife and minor
children.” It is belief that if Hindu faithfully fulfills this duty the gate of heaven are wide open
for one. One may attain salvation. Thus, Hindu has personal obligation to maintain (1)his wife,
(2) children, and (3) aged parents.

WIFE

The obligation of husband to maintain his wife does not arise out of any contract, express or
implied, but out of the status of marriage, out of the jural relationship of husband and wife
created by the performance of marriage 12. The obligation of husband to maintain his wife begins
with the marriage. It is irrespective of fact whether he has or has no property. Hindu law giver

11
Cited in Mitakshara, II, 175.
12
Laxmi Devi v. Vijay Khullar, 2002 Del. 373.
did not deny maintenance even to unchaste wife, provided she live with the husband though in
such a case she entitle to starving maintenance. Under the ancient hindu law a wife who did not
live with her husband, whatever be the cause was not entitled to maintenance. But gradually law
developed and it came to be established that a wife living separate from her husband for some
justifiable cause can claim maintenance. In the modern hindu law a wife also entitled to
maintenance after dissolution of marriage. Thus, a wife’s right to maintenance may arise in the
following three situations.

The relevant legislations which govern the maintenance of wife under Hindu law are: The Hindu
Marriage Act, 1955, and the Hindu Adoption and Maintenance Act, 1956. Provisions contained
therein would be discussed to know the legislative position of wife under Hindu law. The
relevant provisions are: Section 24, and Section 25 of and Maintenance Act, 1956. Section 24 of
the Hindu Marriage Act, 1955, deals with the alimony pendente lite and the expenses of the
proceedings. This Section empowers the court to order the respondent to pay the petitioner the
expenses of the proceedings, if it appears that either wife or the husband has not independent
income for his or her support and to meet out the necessary expenses of the proceedings. It is to
be noted that the court while making order under this Section, pays due regard to the petitioner's
own income and the income of the respondent.

Maintenance of Wife under Section 18, the Hindu Adoptions and Maintenance Act, 1956

Under the section 18(1) of the Act, 1956 wife who reside with husband is entitled to maintenance
by her husband for lifetime i.e. she will be given maintenance until she dies or her husband
dies. Under section 18 of this Act a Hindu wife is entitled to live separately from her husband
without canceling her right to claim maintenance. The grounds under which she can live
separately are:-(1) Husband is guilty of desertion (2) The Husband has treated her with cruelty
(3) The husband is suffering from a virulent form of leprosy (4)The husband has any other wife
living (5) The husband keeps a concubine elsewhere (6) The Husband has ceased to be a Hindu
by conversion to another religion and (7) if there is any other cause justifying living separately.

But there are two bars which will prevent a wife from claiming maintenance from her husband
i.e. (i) if she is unchaste or (ii) if she ceases to be a Hindu by conversion to another religion.
Under section 18(3) lays down that the Hindu wife shall not be entitled to separate residence and
maintenance from her husband if she is unchaste or ceased to be Hindu by conversion to another
religion. It is submitted that this section is applicable to sub section 2 of S. 18 which provides for
the separate residence and maintenance of a wife in certain cases13.

Remedy for maintenance under section 18 of the Act and under 125 of the CrPC are coexistence,
mutually complementary and supplementary to each other. An order of maintenance under
section 125 cannot foreclose claim under section 18.

Section 20 of the Adoption and Maintenance Act – The obligation to maintain one’s children
is a personal obligation and arise out of personal relationship of parents and child. The modern
Hindu law imposes the obligations on both the parents and in respect of both the legitimate and
illegitimate children14. Ordinarily the obligation extends during the minority of children. In this
section parents includes a childless step mother.

Legitimate and adopted sons- A Hindu is required to maintain his natural as well as adopted
sons. The mere refusal of a son to live with his father does not disentitle him from claiming
maintenance, though quantum of maintenance may be affected. The obligation of the parents
ceases on his attaining majority even if the son is incapable of maintaining himself due to
temporary illness or disorder.

Illegitimate son- Hindu law never considered illegitimate son as filius nullius and all along
imposed an obligation on the putative father to maintain his illegitimate son 15. The Hindu
Adoption and Maintenance Act 1956 abolishes all the distinction between illegitimate sons. No
illegitimate son can claim maintenance after he has become a major. Section 20(2) provided that
a legitimate or illegitimate child may claim maintenance from his or her father or mother so long
as the child is a minor.

Legitimate or adopted daughters- it is unequivocally recognized it to be the fathers obligation to

maintain his legitimate daughter till her marriage and to pay for her marriage expenses. It was
further fathers personal obligation. After the father’s death she was to be maintain from the
separate property of his father. Similarly father has the obligation to maintain his widowed

13
Paras Diwan, hindu law 17th edition, pg 462.
14
Section 20(1), of hindu Adoption and Maintenance Act
15
Mitakshara 1.12; V3
daughter. The obligation of a person to maintain his daughter who is unmarried extends in so far
as the parents or the unmarried daughter is unable to maintain himself or herself out of his or her
own earning or other property. This section does not speak of the capacity to earn an income but
speaks of the existence of a source of income and ability to maintain oneself from such income.
Adoptive daughter maintain as the natural born child.

Illegitimate daughter – Before 1956 father has no obligation to maintain her illegitimate
daughter. In Vellaiappa v. Natarajan 16 the Privy Council held that an illegitimate was as much a
member of her father’s family as an illegitimate son and therefore she was entitled to
maintenance. Under the modern Hindu law, she is entitled to claim maintenance against both her
putative father and natural mother but only during minority17.

Aged or Infirm parents- The obligation to maintain aged or infirm parents is a personal
obligation arising out of parents child relationship. However under old Hindu law, this obligation
was imposed on the son only the daughter has no such duty to maintain parents. The modern
Hindu obligates both son and daughter to maintain their parents18.

S. 19, Hindu Adoption and Maintenance Act – Daughter in law- Hindu law has, all along
recognized it to be an obligation of the joint family to maintain the wives and widows of
coparceners. A widow daughter in law can claim maintenance against the joint family property.
The claim is enforceable against the karta so long as the daughter in law has a right to claim
maintenance against the coparcenary property in the hands of the father in law. Apart from this,
the father in law has no legal obligation to maintain a widowed daughter in law.

The Hindu Adoption and Maintenance Act 1956, purports to put the daughter in law as the class
by herself by enacting a separate section for her section 19. Under S.19, the father in law
obligation to maintain the daughter in law is not a primary obligation; it is not even a secondary
obligation. It is a remote obligation. The father in law’s obligation will arise only if –

1. The daughter in law is unable to maintain herself out of their own earnings or other
property, or

16
58 I.A. 407.
17
Section 21(1), Hindu Adoption and Maintenance Act 1956.
18
Section 21(1), Hindu Adoption and Maintenance Act 1956.
 2. The daughter in law (in case she has no property of her own) is unable to obtain
maintenance-
i. From the estate of her husband,
ii. From the estate of her father,
iii. From the estate of her mother, or
iv. From her sons or daughters or from their estate.

MAINTENANCE OF DEPENDENTS

Sections 21 and 22 Hindu Adoption and Maintenance Act – Before 1956 the term
“dependent” was not used in Hindu law. Under Hindu Adoption and Maintenance Act section
21 and 22 creates a new rights for certain persons known as dependents. Dependents are relative
of deceased Hindu and they claim maintenance against the property of deceased Hindu in the
hands of the heirs. The term heirs includes all those person on whom the property of the
deceased Hindu devolves. The rights of the dependents arise against the property of the deceased
not against the heirs personally. The rights of dependents as dependents does not arise during the
life time of the person on whom the person is dependent.

According to S. 21 of the Act the following persons are the dependent of a Hindu male or
female:

1) The father
2) The mother
3) The widow
4) The minor legitimate son
5) The minor illegitimate son
6) The minor legitimate unmarried daughter
7) The minor legitimate unmarried daughter
8) The widowed daughter
9) The son’s widow
10) The grandson’s widow
11) The sons unmarried daughter
12) The grandson’s unmarried daughter
 13) Son’s son’s minor son

Under Section 22 of The Hindu Adoptions and Maintenance Act, 1956 there are certain rules
mention related to maintenance of dependents.—

(1) Subject to the provisions of sub-section (2) the heirs of a deceased Hindu are bound to
maintain the dependents of the deceased out of the estate inherited by them from the deceased.

(2) Where a dependent has not obtained, by testamentary or intestate-succession, any share in the
estate of a Hindu dying after the commencement of this Act, the dependent 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 (heirs) 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 dependent 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.